ISSUE 917 · May 2018

Bullying from the bench Page 44

Questions over A law student When a But who 'manaakitanga' perspective: client is too owns that in the Hauraki How the future much tattoo? Gulf should look Page 32 Page 39 Page 55 Page 80 Lexis Advance® Simple search. Clear insight. GIVING YOU TIME TO WORK ON YOUR GAME! Discover this all new intuitive online research platform for yourself – with a single user-friendly search box – it’s a refreshing simple way to conduct your research. By having leading technology and accurate information at your fingertips, we believe this gives you the time and power to shape your world… or just time to work on your golf handicap.

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People in the law 30 · Initial interest confusion 6 · Kiwi lawyer's expose of in internet search results inaction into murder, abuse allowable ▹ BY KATE DUCKWORTH and exploitation on the high 32 · Questions over seas ▹ BY NICK BUTCHER 'manaakitanga' in the Hauraki 8 · On the move Gulf ▹ BY CHARLOTTE DOYLE

New Zealand Law Society Changing our Culture 14 · From the Law Society 35 · Update 14 · New Zealand Law Society 39 · A law student perspective: how the future should Update look ▹ BY NICK BUTCHER 6861 21 · When the liquidators come 42 · Gender Equality Charter calling, are the company's launched ▹ BY NICK BUTCHER last financial statements the 44 · Bullying from the last word? ▹ BY CALLUM REID bench ▹ BY GEOFF ADLAM 22 · ACC and the Woodhouse Principles: community Practice responsibility ▹ BY DON RENNIE 54 · Why isn't my computer backed 24 · The vicarious liability up? ▹ BY DAMIAN FUNNELL of employers - worth 55 · When a client is too another look? ▹ BY MARIA much: Dealing with tricky DEW AND ANJORI MITRA customers ▹ BY CRAIG STEPHEN 27 · Franchise Agreements and 58 · Advising non-English penalty clauses ▹ BY DEIRDRE speakers ▹ BY ALAN SORRELL WATSON 8893

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4 Contents

60 · The paradox of 71 · Lawyers Complaints Classifieds meritocracy ▹ BY LAURA Service 83 · Will notices O'GORMAN 84 · Legal Jobs Practising Well 87 · NZLS CLE Ltd CPD Calendar Focus on... 74 · Brain School, now 61 · Paradise to the courthouse accepting expressions of Snapshot in just over half an hour interest▹ BY KATIE COWAN 90 · Adult convictions in 2017 ▹ BY CRAIG STEPHEN ▹ BY GEOFF ADLAM Legal Information In-house 76 · New Zealand democracy Lifestyle 64 · The "modular" General Counsel vulnerable to overseas 92 · A New Zealand Legal Crossword ▹ BY MATT FARRINGTON trends, says Sir Geoffrey 93 · Take a train back into Palmer ▹ BY LYNDA HAGEN history ▹ BY JOHN BISHOP Future of Law 96 · Sutherland's Law - a law man 66 · More houses, more contracts... The Case and in the heyday of crime caper What the Housing NZ legal the Story TV ▹ BY CRAIG STEPHEN team did ▹ BY GEOFF ADLAM 77 · Finnigan v New Zealand 68 · Law and digital technology: Rugby Football Union 98 · Tail-end what will the legal three decades on - landscape look like in preserving the story 2038? ▹ BY BENJAMIN LIU ▹ BY SAM BOOKMAN

Mediation Law in Practice 69 · Embracing Diversity 80 · But who owns that tattoo? ▹ BY PAUL SILLS ▹ BY ANGHARAD O'FLYNN

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5 PEOPLE IN THE LAW · PROFILE May 2018 · LAWTALK 917

PEOPLE PROFILE Kiwi lawyer’s exposé of inaction into murder, abuse and exploitation on the high seas

BY NICK BUTCHER

companies. of these Cambodian fishermen will be told by what A New Zealand lawyer has Thomas Harré’s Masters degree could be described as a loose acquaintance that there completed a PhD on transnational examined the response of the New are fishing jobs available in Thailand and your family criminal law at Melbourne Law Zealand Government to the traffick- and village will be set for life and all you have to do is School that reveals the horrors of ing of the Indonesian fishermen. work on the boat. It’ll be tough work but only for a few life in the South-east Asian fishing Mr Harré is a barrister at LawAid months, but the money will be worth the sacrifice.” industry and the lack of political will International Chambers, which was To a person of little education from an impoverished to change it. founded by Craig Tuck and is also village, this sounds like a dream come true. Thomas Harré’s focus was on how based in Tauranga. But in reality it is more like the beginning of a long transnational criminal law relates to “Getting to know Craig and doing nightmare. the human trafficking of fishermen my Masters led me to the conclu- “The companies will send a representative who will in South-east Asia. sion that exploitation of vulnerable bring these Cambodian men to Thailand, often illegally; How it came about is an interest- workers such as the Indonesian that is, they’ll be crossing the border without the appro- ing tale that took him to parts of the fishermen was not just happening priate paper work and visas. They’ll board a fishing boat world he wouldn’t have expected to in New Zealand waters. That leant at one of the Thai ports and soon realise the job offer visit as an academic. itself nicely to a PhD on the wider was too good to be true,” he says. He became interested in the problem,” he says. subject after meeting Tauranga- Squalid conditions and based barrister Craig Tuck in 2012, Tricked into slavery witnessing murder around the time he was admitted An investigation keeps on evolv- Mr Harré says the men will be faced with squalid living as a barrister and solicitor. ing and that’s what happened for conditions and being abused by the ship’s captain. Mr Tuck is the founder and direc- Thomas Harré. “This is significantly worse than what we saw with tor of Slave Free Seas, a charitable The case study he looked at the foreign charter vessels that were operating in New trust that aims to use the law to involved poor fishermen, mostly Zealand. Some of these boats are very small – just 10 end human trafficking at sea. Its Cambodian, who he says were metres long – and there could be 20 people living aboard lawyers represented Indonesian essentially tricked into working on the boat. The United Nations produced a study where fishermen with little or no grasp of Thai fishing boats which turned out they found that 50% of crew members aboard these sorts English during a major investigation to be fishing in Indonesian waters. of fishing boats had witnessed another crew member into allegations of exploitation and “So you’ve got this multi juris- being murdered by a fellow crew member. The working unfair treatment, including poor pay diction complex issue where the conditions are horrific,” he says. and work conditions on charter ves- companies doing this are exploiting These stories are included in some of the findings sels fishing in New Zealand waters. the inability of these countries to presented in Mr Harré’s PhD. In 2016 a change in law required communicate with each other prop- “Another study shows that these Cambodian fisher- all foreign charter fishing vessels to erly and therefore the companies men will stay at sea, on average, for about two years reflag to New Zealand and operate are getting away with this style of without setting foot ashore when they had only signed under the full legal jurisdiction of human trafficking,” he says. up for a couple of months,” he says. this country. Previously they did How they are tricked into traffick- Mr Harré’s main focus, however, is how the govern- not, yet the crew aboard these ing is a shocking indictment of the ments of Cambodia, Thailand and Indonesia were failing fishing vessels were catching fish way the system operates. to communicate with one another about what to do for prominent New Zealand fishing “How the scam works is that one about the problem.

6 LAWTALK 917 · May 2018 PROFILE · PEOPLE IN THE LAW

not catching high quality fish. It’s His PhD is a legal analysis on how the species they grind up and feed to make this work, not just in South- to shrimp or chickens or turn into east Asia but anywhere. bait. They’re not setting the price, “It sets out the obligations of they’re taking whatever price the states. So a lawyer can refer to my global market will pay, so the fishing PhD and ask themselves whether companies who want to maintain a the states involved in a potential profit cut costs with labour.” case are meeting this threshold,” he says. The complicated puzzle of transnational What next? criminal law Mr Harré intends to practise law The point of Mr Harré’s PhD was to in these specialist areas along with explore how transnational criminal putting some further academic law works in practice. research into the career mix. “It’s not international criminal “I want to work in several juris- law where they’re sometimes deal- dictions. Something I’m working ing with genocide and war crimes. on with my employer, Craig Tuck, But this is still crossborder crime, is providing access to justice for just not as high profile,” he says. people who have been tricked into What happens is the United smuggling drugs,” he says. Nations will introduce and pass Mr Harré was part of the legal an anti-trafficking of people treaty team representing New Zealander such as the Palermo Protocol, and Antony de Malmanche who is serv- all countries that sign up will agree ing a 15-year sentence in a notorious to criminalise this behaviour in their Bali prison for drug trafficking. Talk is cheap respective countries. His legal team argued that Mr de “I spent a lot of time in South-east Asia, being based in “But what that means is there is Malmanche was a victim of human Bangkok for about six months, interviewing everyone no international tribunal that can trafficking rather than being a drug and anyone who was involved with regulating the fishing deal with human trafficking and trafficker. industry,” he says. each country needs to take any While different to fishing, Mr What he found was that there was a lot of talk and cases to their domestic courts. But Harré says it was a similar situa- that talk turned out to be cheap. fundamentally you’ve got bits of tion, in that it was criminal activity “As far as putting it into practice, there was a severe evidence cropping up in multiple crossing borders. lack of political will to establish any regulations.” jurisdictions.” “The transnational criminal law Mr Harré concluded that the fishing industry is an Mr Harré says that leads to the approach that we took told a much economic powerhouse, countries in South-east Asia bigger challenge of being able to bigger story. We found evidence of make a lot of money from it and it’s easier to look the combine the whole factual matrix very sophisticated and organised other way, rather than change practices that would of the offending, that is human criminal activity across multiple reduce profits despite the working conditions being trafficking, and packaging it up in a countries and that the prosecution violations of basic human rights. way that will work in a prosecution was only seeing the tip of it when “It’s how they stay competitive,” he says. “They’re held at a domestic court. it hit Bali,” he says. ▪

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7 PEOPLE IN THE LAW · ON THE MOVE May 2018 · LAWTALK 917

PEOPLE ON THE MOVE

Associate High family and general litigation and is an 1996 and practises in all aspects of environ- approved provider of legal aid services. mental and resource management law for Court Judge Katie Corbett has private and public sector clients. been made an asso- appointed ciate. She first joined Peter Hutchinson Hamertons in 2013 as a appointed PDS Director law graduate before her Auckland barrister Peter John admission as a barrister Peter Hutchinson was Andrew was sworn in as an Associate Judge and solicitor. Katie left appointed Director of the of the High Court on 23 March and now sits Hamertons to go travel- Public Defence Service in Auckland. After graduating BA, LLB from ling in May 2015 and rejoined the team in in December. He began the University of Otago he was admitted as August 2016. She specialises in commercial, working with the PDS a barrister and solicitor in December 1984 property and rural law. in 2010 as Senior Duty and joined the Auckland Crown Solicitor Heather Tucker has Lawyer in the Northern Meredith Connell. Associate Judge Andrew been promoted to senior region. Admitted as a later studied at the University of Kiel in lawyer. She joined the barrister and solicitor in June 1989, he Germany and graduated with an LLM in family team in August worked for a large commercial law firm Public International Law. He joined the 2014 after relocating before practising for over 20 years as a Auckland office of Russell McVeagh in 1990 from Auckland. Her barrister. as a senior solicitor, practising employment previous legal experience law and commercial litigation. includes two years as a Hana Schofield From 1993 to 1999 he was a Crown Judges’ Clerk in the Employment Court, joins SBM Legal Counsel in the treaty issues and interna- then 14 months practising employment law tional law team at the Crown Law Office before branching out into family law. At Hana Schofield has and represented the Crown in public law Hamertons Heather predominately works joined SBM Legal as a litigation in courts at all levels. He was a in family law and relationship property but senior solicitor. Hana member of the Crown negotiating team for also assists with employment matters. graduated from the Treaty of Waitangi settlements in relation University of Canterbury to Ngāi Tahu and Tūrangi. Briar Webster joins and was admitted as Associate Judge Andrew joined the Morgan Coakle a barrister and solici- independent bar in 1999, specialising in partnership tor in 2003. She spent public law and civil litigation, including several years working for a leading New litigation over Treaty settlements and trust Briar Webster has been Zealand law firm and then joined a London and equity litigation in the specialist Māori appointed a partner firm. Hana worked as a solicitor for the Land Courts. He also has adjudication expe- at Morgan Coakle. She Employers and Manufacturers Association rience as a member of the Refugee Status joined the firm in 2006 before joining SBM Legal. Appeals Authority and the Weathertight after gaining experience Homes Tribunal. in both New Zealand Grimshaw & Co appoint and London firms. Briar Andrew Hough partner Three senior brings to the partnership appointments at wide-ranging litigation experience, with Andrew Hough has Hamertons Lawyers Ltd particular areas of expertise in employ- joined the Grimshaw ment and insurance litigation. & Co partnership from Lisa Ebbers has been 1 April 2018. Andrew made an associate. Rachel Devine appointed worked at Grimshaw After her admission as RMLA president & Co for seven years a barrister and solicitor up until 2011. Before in 2011, Lisa completed Rachel Devine has been appointed returning in 2015 he an LLM and spent two President of the Resource Management gained extensive experience at two large years working in the Law Association following the resignation law firms in Australia and Auckland, where District and Family Court of James Gardner-Hopkins. Ms Devine is he worked on a mixture of commercial, environments before joining Hamertons a partner at MinterEllisonRuddWatts. She insurance, reinsurance and local govern- in March 2014. She specialises in criminal, was admitted as a barrister and solicitor in ment cases. Andrew is also experienced in

8 LAWTALK 917 · May 2018 ON THE MOVE · PEOPLE IN THE LAW

building litigation, dispute resolution and has also worked for Simpson Grierson in Manger, Resolution Services at MBIE. earthquake claims. Wellington and Travers Smith in London. Before joining MBIE she was Acting Deputy Mr Cunliffe has extensive experience in Secretary, Tourism, Events and Consumer Anne Callinan corporate and commercial law, with a Affairs, Director of Legal in the former appointed Simpson particular focus on M&A and takeovers. Ministry of Economic Development, Chief Grierson chairperson Legal Advisor in the former New Zealand Olivia Rabindran joins Food Safety Authority, and Parliamentary Anne Callinan has been Sky Network Television Counsel and Private Secretary in the appointed chairperson of Attorney-General’s office. Simpson Grierson. Ms Olivia Rabindran has Callinan was admitted as joined Sky Network Promotions for Wynn a barrister and solicitor Television as Legal Williams lawyers in June 1989. She joined Counsel & Business Simpson Grierson in 1992 Affairs Manager. She Wynn Williams has announced the pro- and was appointed a was previously a solic- motion of seven lawyers. partner in 1998. She was also part of the itor at Russell McVeagh Tom Corkill becomes firm’s board from 2009 to 2015. She is an in Auckland. Olivia was a senior associate in the experienced commercial litigator with admitted as a barrister and solicitor in Auckland corporate particular expertise in competition and October 2015 after graduating from Victoria and commercial team. regulatory law. Ms Callinan is a member University of Wellington with LLB and BCA Admitted in September of the Competition Law and Policy degrees majoring in international business 2011, Tom has signif- Institute of New Zealand, the Arbitrators’ and marketing. icant banking and and Mediators’ Institute of New Zealand, finance experience and and the New Zealand Lawyers and New Commerce is involved in mergers and acquisitions, Conveyancers Disciplinary Tribunal. Commission Chief debt funding transactions and corporate Executive governance. Mark Cunliffe Jenny Turner becomes General Counsel to Adrienne Meikle has been appointed Chief a senior associate in the Takeovers Panel Executive of the Commerce Commission. private client services Ms Meikle is currently Deputy Chief team in Christchurch. The Takeovers Panel has Executive, Corporate, Governance and Jenny was admitted in appointed Mark Cunliffe Information group at the Ministry of October 2011 and assists as General Counsel to Business, Innovation and Employment. clients with a broad the Panel. Mr Cunliffe She will commence her new role at the range of legal matters, was admitted as a bar- Commission in early May, succeeding including residential, commercial and rister and solicitor in Brent Alderton who left the Commission rural property transactions. September 2004 and he in January. Hayden Baird joins the Panel from Bell Before her current role Ms Meikle held becomes a senior asso- Gully, where he was a senior associate in the positions of Acting Deputy Chief ciate in the Christchurch the corporate department from 2012. He Executive, Market Services and General commercial property and projects team. Hayden was admitted in July Following his retirement as a Judge of the 2006. He practises in all Court of Appeal, the Honourable Rhys Harrison areas of property, private QC has returned to professional practice. client and commercial law with a particu- lar focus on commercial He will be available for arbitration, mediation and general advisory work. His office is at 5th Floor, property. Shortland Building, 70 Shortland Street, Auckland. Josh Taylor becomes a senior associate in  [email protected] the dispute resolution  021 503 324 or 09 309 1680 team in Christchurch.  POBox 342, Shortland St, Auckland 1140 Admitted in August 2014, Josh has a particular

9 PEOPLE IN THE LAW · ON THE MOVE May 2018 · LAWTALK 917

interest in construction law, but is experi- 1 April 2018.She replaces former Chair New director for enced in a broad range of matters, including Kenneth Johnston QC who was appointed Lundons Law commercial, company disputes, insurance, an Associate High Court Judge at the insolvency, alcohol licensing and trust law. end of January. Ms Meares is also Chief Lundons Law in Shane Campbell Commissioner of the Transport Accident Blenheim has appointed becomes a senior asso- Investigation Commission and is a barrister Laura McFarlane as a ciate in the dispute at Wellington’s Clifton Chambers, where director. Laura joined resolution team in she is involved in a range of public sector the firm after graduat- Christchurch. Shane and commercial advisory work. Before ing from the University was admitted in August joining Clifton Chambers she was the chief of Canterbury in 2013 2014 and specialises in legal adviser at the Treasury. and was admitted as a all commercial litigation, barrister and solicitor in April 2014. Her with a particular interest in trusts and Tony Ellis Harvard areas of interest and expertise include estates, contract and company matters, Visiting Fellow conveyancing, commercial law, estate negligence, construction, debt collection, and succession planning, and relationship and declaratory proceedings. Wellington barrister Tony Ellis will join the property. Tiana Ritchie becomes Harvard Law School Human Rights Program an associate in the dis- community as a Visiting Fellow for the Vicki Morrison-Shaw pute resolution team in Spring Semester, January to May 2019. Dr now Atkins Holm Christchurch. Tiana was Ellis will be researching the arbitrary deten- Majurey partner admitted in October 2015. tion of the intellectually disabled from an She primarily works on international and comparative perspective. Vicki Morrison-Shaw complex commercial dis- has been appointed to putes, but is also involved Nathan Batts joins the Atkins Holm Majurey in criminal and family litigation work. In Rice Speir partnership. Vicki spe- addition, she has experience in trust law cialises in environmental and Māori land law. Nathan Batts has joined law and was admitted Nic Lawrence becomes an associate the compliance and as a barrister and solic- in the dispute resolu- enforcement team at itor in November 2005 tion team in Auckland. Auckland litigation firm after graduating LLB from the University Nic was admitted as a Rice Speir. Before joining of Waikato in 2003. She has held both barrister and solicitor in Rice Speir he worked at in-house and private practice roles and October 2015. He mainly the office of the Crown has been involved in major development works on complex com- Solicitor in Tauranga projects throughout her career (including mercial disputes, but is where he conducted prosecutions and civil Long Bay, Te Arai, Te Rere Hau windfarm involved in a wide variety proceedings on behalf of the police and other and Trans-Tasman Resources iron sand of other matters including insolvency, regu- government agencies. Nathan was admitted mining). latory, insurance and relationship property. as a barrister and solicitor in August 2012. He The firm has also announced the has also worked in large litigation firms in Two appointments appointment of Ellie Harrison as a senior both London and Auckland. at Succeed Legal associate in the national dispute resolution team Diong Ding joins Fortune Wellington boutique firm Succeed Legal in Auckland. Ellie was Manning partnership has announced two appointments. admitted in September Lloyd Davies joins 1994. She will pre- Diong Ding has joined the firm as a Principal. dominantly focus on Fortune Manning as a Lloyd specialises in insurance law and has partner from 1 April 2018. advising businesses experience in statutory Diong was admitted as and their owners on a and regulatory compliance, public and a barrister and solicitor range of commercial general liability defence, and general civil in December 1993 and and property matters, and professional indemnity defence. brings over 25 years of including acquisitions property and commercial and disposals, leasing and subdivisions. Jane Meares appointed experience to the firm. He advises a broad He also advises individuals on a wide FSC Ltd Chair range of clients. range of personal property matters. Before joining Succeed Legal, Lloyd was Senior Barrister Jane Meares has been appointed Legal Counsel at Contact Energy. He has Chair of the disputes resolution service also previously worked in private practice, Financial Services Complaints Ltd from doing a wide range of property, commercial

10 LAWTALK 917 · May 2018 ON THE MOVE · PEOPLE IN THE LAW

and regulatory work. Tim Jeffcott joins transactions with a par- Beth McCall has Lowndes as Principal ticular emphasis on rural joined the firm as an property matters, devel- Associate. Beth has Tim Jeffcott has joined opment projects includ- worked in the private Lowndes as a princi- ing subdivisions and unit client services teams at pal in the litigation title developments and two national law firms team. Tim has over 23 overseas investment. Pip and also worked in the years of experience in also regularly advises on United Kingdom for a corporate and com- commercial transactions and structuring social housing provider. She specialises mercial litigation and matters for private clients. Pip was admit- in a wide range of property and private dispute resolution with ted to the bar in 2010 and graduated with client matters, including residential and a focus on insolvency, technology and an LLB from the University of Otago. commercial property transactions, leasing employment issues. Tim has worked Fran Hesp is a senior and subdivisions, relationship property, for MinterEllisonRuddWatts, a boutique solicitor in the employ- trust, estate and succession planning. Auckland law firm and a leading Nelson ment and civil litigation Beth also has a passion for charities and firm. He was a partner with Jeffcott Muller team. Fran is a specialist not-for-profit law. for eight years and spent three years as in all aspects of employ- a Disputes Tribunal Referee in Auckland. ment law including Changes at company restructures, Gascoigne Wicks Hayden Wilson employment disputes elected Resolution and negotiating employment agreements. Blenheim firm Gascoigne Wicks has Institute Vice-Chair Fran also specialises in civil and commer- announced two staff changes. cial litigation with particular expertise in Amanda Hills has Wellington lawyer debt recovery, insolvency and dispute res- been appointed an Hayden Wilson has olution. Fran was admitted in to the bar in associate in the firm’s been elected Vice-Chair 2008 after graduating from the University resource management of Resolution Institute, of Otago with an LLB and BA. team. Amanda was the largest membership Sophie Diedrichs is a admitted as a barrister organisation of members solicitor in the property and solicitor in October and other dispute resolv- and commercial team 2012 and joined the firm ers in the southern hemi- with a broad range of in 2015. She specialises in resource man- sphere. Hayden is a partner at Kensington experience in general agement and civil litigation. The majority of Swan where he leads the government practice. Sophie also her work is with clients in the aquaculture and regulatory team. He is a litigator and provides support for sector across the top of the South Island. mediator specialising in commercial and senior staff on resource Claire McKendry public law. management, civil litigation and employ- has joined the firm as ment matters. Sophie will practise in an associate from 16 Changes at Todd Wanaka as the firm looks to develop and April. Claire has worked & Walker Law in Marlborough since graduating and will Todd & Walker Law has announced two Writing for LawTalk work in the commercial promotions and two new lawyers. Submission of articles to LawTalk conveyancing team. Louise Denton has is welcomed. Please contact been promoted to associ- the Managing Editor, editor@ New chair for Bell Gully ate in the firm’s litigation lawsociety.org.nz in advance. All team. Louise specialises articles must not have appeared Bell Gully has appointed Anna Buchly as in criminal and regula- elsewhere, although there are no its new Chair. Ms Buchly is a specialist tory defence. She has objections to them subsequently corporate lawyer with a particular focus experience in various being republished. Articles should on capital markets, mergers and acquisi- courts and tribunals be submitted as a MS Word doc- tions, private equity, and joint ventures. She throughout the South Island. Louise was ument by the agreed deadline. has over 20 years legal experience in New admitted to the bar in 2007 after complet- Authorship of an article must be Zealand, Australia and Dubai and has been ing her LLB and BCom at the University of shown. Articles will be edited and a corporate partner with Bell Gully since Otago. She has previously worked both for appear at the discretion of the New 2008 and a board member for the past three the Crown and the Public Defence Service. Zealand Law Society. Footnotes are years. Ms Buchly replaces Chris Gordon who Pip Roberts has been promoted to asso- avoided and articles of up to 1800 has stepped down after three years in the ciate in the firm’s Property and Commercial words are preferred. role to resume full-time practice. team. Pip primarily specialises in property

11 PEOPLE IN THE LAW · ON THE MOVE May 2018 · LAWTALK 917

open an office there. Sophie was admitted James Donkin joins 2016. She is a member of the corporate to the bar in 2015 after graduating from Quay Chambers team and advises on acquisitions, refi- the University of Canterbury in 2014 with nancing and restructuring deals, corporate an LLB and BA. James Donkin has joined Quay Chambers governance, franchising and compliance in Auckland as a barrister sole, specialising matters. Taylor Shaw in complex civil litigation, contentious reg- Chad Wallace is promotes two ulatory matters and white-collar offending. now an associate in the He was admitted in 2005 and has worked private client and trust Christchurch firm Taylor Shaw has at Russell McVeagh, Meredith Connell and team. Chad previously promoted two staff to the role of Senior Rice + Co (now Rice Speir). James also worked in Auckland Solicitor. spent two years in Singapore as Regional before joining Cooney Sam Hider is a senior Legal Counsel for one of the world’s largest Lees Morgan in late 2015. solicitor in the civil liti- multi-line insurers. He has expertise in local gation and employment authority, commercial, rural and residential law team. Sam’s main Promotions at Cooney property transactions. area of speciality is Lees Morgan Julie Warburton insurance law. He was has been made an admitted as a barrister Tauranga firm Cooney Lees Morgan has associate – Registered and solicitor in 2016 after announced nine new promotions: Legal Executive, Fellow graduating with LLB and BA degrees from Hilary Cutfield has in the corporate and the University of Canterbury. become a senior associ- commercial team. Julie Amy Kennerley is ate within the property relocated to Tauranga a senior solicitor in and development team. from Auckland 12 years the civil litigation and Hilary joined the firm in ago and deals with a variety of property employment law team. 2012. She specialises in transactions ranging from residential and Amy’s main area of spe- residential and commer- commercial property to orchard sales and ciality is employment cial property transac- purchases. law. She was admitted as tions, property development, commercial Kelly Hymers a barrister and solicitor leases, contract matters, estate planning specialises in civil lit- in 2016 after grading with LLB(Hons) from and asset protection. igation, employment the University of Canterbury. Jason Bywater- (both contentious and Lutman has been non-contentious), and Nina Mackay joins appointed a senior debt recovery. She has Quentin Hix Legal associate. Jason joined been promoted to asso- Cooney Lees Morgan ciate within the litigation Nina Mackay has joined the team at in 2014 and his areas and local government team, having joined Quentin Hix Legal as an associate, moving of expertise include the firm in August 2012. from another Timaru law firm. Nina grad- construction, property, Louella Axon has uated from the University of Canterbury commercial, trust and taxation law. been made an Associate and was admitted as a barrister and Rachael Zame is – Registered Legal solicitor in 2000. She has expertise in now a senior associate Executive, Fellow in the commercial, property and rural law. and has been practising private client and trust resource management team. Louella completed Anthea Connor and environmental law her Legal Executive appointed to Oakley for more than 10 years. Certificate in 1976 and Moran partnership She specialises in the spent more than two decades working in Resource Management Auckland and Warkworth before joining Anthea Connor has been appointed a Act, local government law and civil liti- Cooney Lees Morgan in 2003. She special- partner of Wellington firm Oakley Moran. gation and joined Cooney Lees Morgan ises in conveyancing, small business and Anthea was admitted as a barrister and in 2009 following stints in Auckland and leasing, trusts and wills. solicitor in May 2002 after graduating with London. Amanda Segedin is an LLB and BSc from Victoria University Tanya Drummond has now a senior solicitor of Wellington. She specialises in property, been promoted to senior having spent her entire conveyancing, trusts, wills and estates, associate, having previ- legal career at Cooney relationship property and employment ously worked for top tier Lees Morgan since law. law firms in Wellington graduating in 2012. She and Melbourne before works mainly in trust moving to Tauranga in administration and

12 LAWTALK 917 · May 2018 ON THE MOVE · PEOPLE IN THE LAW

restructure, property transactions, leas- Counsel. She is a senior Simon Pigou appointed ing arrangements and estate planning. commercial lawyer who partner at Gault Amanda will be moving to Matamata in specialises in general Mitchell Law April where she will work out of the firm’s commercial contracting, Matamata branch. procurement processes Simon Pigou has been and the development made a partner at Gault Nisha Dahya joins and commercialisation Mitchell Law from 1 April. ARL Lawyers of health technology. Simon was admitted as Since joining Claro in 2014, Aisling has a barrister and solicitor Nisha Dahya has joined worked on a number of major projects in June 2012 and gained ARL Lawyers in Lower including large DHB procurements, out- considerable experience Hutt as an associate. sourcing and service agreements. at a large provincial firm Admitted to the bar in Belinda Johns has before joining Gault Mitchell Law in 2015. 2009, Nisha has worked been appointed Special His focus is in the areas of residential and for both Wellington and Counsel. She is a medical commercial property, trusts and general Lower Hutt law firms. law specialist and expe- business matters. She specialises in family rienced in all aspects of law and undertakes a wide variety of work civil litigation. Belinda Ian Murray joins including relationship property, dissolu- joined Claro in 2015 and Harbour Chambers tion, care of children and guardianship, has since been involved domestic violence, paternity, adoption and in wide range of proceedings, from prose- Ian Murray has joined Wellington’s Harbour spousal maintenance. cuting and defending health practitioners Chambers as a barrister sole specialising before the HPDT to ground breaking med- in public law, regulatory offending – in Sarah McClean now ical/ethical proceedings in the High Court. particular, health and safety – professional Webb Farry associate Andrea Lane has regulation and discipline, and criminal law, joined Claro as a especially at the appellate level. Ian was Dunedin firm Webb Farry has promoted solicitor, based in admitted to the bar in September 1994. Sarah McClean to associate in the lit- Christchurch. She has Before moving to Harbour Chambers he igation department. Sarah graduated practical health sector was Crown Counsel at the Crown Law LLB(Hons) BA(Hons) from the University experience having Office and before that a Crown Prosecutor of Otago and was admitted as a barrister previously worked as for almost two decades. and solicitor in May 2009. She worked in a radiographer. Andrea Wellington as a Crown Prosecutor and as a was admitted to the bar in 2015 and most Senior Case Manager for the New Zealand recently worked in the commercial team Institute of Chartered Accountants. Sarah at a large national firm. Correction returned to Dunedin and joined the Webb Catherine Deans, The first name of Louisa Gommans, Farry team in 2014. She works mainly on senior solicitor, has author of the article “Plundering civil, employment, criminal and relation- moved from the firm’s Beauty: A History of Crime during ship property matters. Christchurch office to war” at page 78 of the April issue the Wellington office and of LawTalk, was incorrectly stated Changes at Claro will continue to provide as “Louise”. We apologise for the services nationwide. error. Claro has appointed three staff to the role of Special Counsel and announced two Danielle Kelly joins Contributing information other changes. Buddle Findlay to On the Move Wendy Beverley has LawTalk is happy to publish a been appointed Special Danielle Kelly has joined Buddle Findlay’s brief summary of information Counsel. She has many Auckland office as a about promotions, recruitment years’ experience advis- senior solicitor in the and retirement of members of ing public and private banking and financial the legal profession. There is no organisations on health services team. Danielle charge. Information can be sent as and medico-legal issues, has a broad range of an email or a MS Word document including sharing and experience in domestic to [email protected] and disclosure of information, consent, PPPR and international bank- should be three or four sentences Act, mental health and elder care, refusal ing and finance law. without superlatives. A jpeg photo of treatment, and other matters relating Before joining Buddle Findlay she spent may be included. Information may to patients’ rights. several years at a large international law be edited. Aisling Weir has been appointed Special firm based in London.

13 FROM THE LAW SOCIETY May 2018 · LAWTALK 917

FROM THE LAW SOCIETY NZLS

Sign the Charter Kathryn Beck and today! Law Society Board There is now nothing standing in the way of you or your firm, cham- members bers or legal team signing the Law Society’s Gender Equality Charter. re-elected This was launched at Parliament last month at an event hosted by the Minister for Women Julie Anne The New Zealand Law Society Genter. Council held its six-monthly The Charter has been developed meeting in Wellington on 13 April. by the Law Society’s Women’s Kathryn Beck was re-elected as Advisory Panel after extensive con- President for a further and final sultation. It is a set of commitments one-year term. The term of office aimed at improving the retention of President is one year, with the and advancement of women President eligible for re-election for lawyers. Charter signatories must three consecutive annual terms. Ms meet these commitments over a Beck took office as President on 15 two-year period and report on pro- April 2016. gress to the Law Society. Actions of lawyers who are committed to The two-year terms of the four are what is needed. That is why we making our very rewarding profes- Law Society Vice-Presidents expired want signatories to report on how sion inclusive and fair to all. at the meeting and all were declared they’re doing. The Law Society offers This issue ofLawTalk also con- re-elected as only one nomination assistance, resources and support tinues our campaign to provide had been received for each role: Tim in meeting the commitments. These practical solutions and opportuni- Jones (Vice-President, Auckland), include: ties for changing the unacceptable Tiana Epati (Vice-President, Central • Implementing unconscious bias elements of the culture which can North Island), Nerissa Barber (Vice- training for all lawyers and key be found in the profession. We President, Wellington) and Andrew staff. report on progress with the meas- Logan (Vice-President, South Island). • Conducting annual gender pay ures already in place. There are also The current auditors, Deloitte, audits and taking action to close detailed examinations of how some Chartered Accountants, were any gender pay gap. final year law students view the re-elected for a further one-year • Encouraging and supporting profession they will become part term. flexible working for all lawyers. of, and a look at the incidence of • Actively working to increase inappropriate behaviour from some gender equality and inclusion in members of the judiciary towards senior legal roles. counsel in court. The recent public I now urge you to sign up to the attention to this has resulted in a New Zealand Charter. It’s very easy and it will be number of developments which we Law Society one of the most important actions hope will better enable lawyers and submissions you take today. All you need to do the judiciary to help resolve unwel- is to email womeninlaw@lawsociety. come incidents. Copies of submissions and org.nz with the subject line Sign Me comments made by the Law Up. We’ll get back to you quickly Kathryn Beck, Society in its law reform role and you will join the growing group President, New Zealand Law Society may be found on the website at www.lawsociety.org.nz/ news-and-communications/ law-reform-submissions

14 LAWTALK 917 · May 2018 NEW ZEALAND LAW SOCIETY

The role of the Law Society Inspectorate team

BY LISA ATTRILL

Administrators, Trust Account to the legal profession and to clients, The Inspectorate team assists with carrying out Supervisors and Stepping Up the public and their representatives, the Law Society’s regulatory functions by administering a courses and assessments. that there is an effective scheme in scheme for the protection of money entrusted to law firms place. trust accounts known as the financial assurance scheme. Financial Assurance The scheme applies to all lawyers A team of 11 staff are involved in this work – the Scheme except those who do not: Inspectorate Manager, one administrator and nine The Law Society established the • receive or hold money or other inspectors located throughout New Zealand. Financial Assurance Scheme in valuable property in trust for any 1998. Since enactment of the LCA, person; or Varied role the Law Society has continued the • invest money for any other Their role is varied, but in summary, the inspectorate: scheme as provided by regulation person; or • conduct reviews of lawyers’ trust accounts; 36(1) of the Regulations. • have a trust account; or • answer general inquiries about trust accounting The scheme has five objectives: • receive fees or disbursements related issues from the profession; protection, compliance, detection, in advance of an invoice being • ensure compliance by lawyers with ss 110-114 of the deterrence and demonstration. issued. Lawyers and Conveyancers Act 2006 (LCA), related These objectives are set out in to the obligations of practitioners in respect of trust regulation 36(3) and can be sum- Risk management accounts and valuable property and with the Lawyers marised as: framework and Conveyancers Act (Trust Account) Regulations Protection: to protect clients’ The framework used by the 2008 (Regulations); monies held in lawyers’ trust Inspectorate team to carry out their • conduct investigations usually following appointment accounts; functions: by lawyers standards committees; Compliance: to ensure that law- • is based on an international risk • carry out duties as instructed when a standards com- yers meet the requirements of the management standard (AS/NZS/ mittee determines that an intervention into a practice LCA and the Regulations in their ISO 31000 (2009); is warranted (see ss 162-170 of the LCA); handling of client funds; • reflects current risk management • assist with interviews of lawyers applying for approval Detection: to uncover situations practice; for practice on own account; where lawyers are not complying • establishes a criteria for risk • conduct a review when a trust account is being closed; with the requirements, especially assessment; and • administer the Financial Assurance Scheme; and detection of the theft of client • provides a methodology for devel- • assist in educating lawyers, law firms and their staff monies by lawyers or their employ- oping risk-based assurance trust in matters relating to trust accounting. ees and other behaviours that fore- account review processes. The inspectors’ focus is on the approximately 1,400 law shadow the potential loss of client The timing and frequency of trust firms operating trust accounts and in ensuring that monies; account reviews is driven primarily lawyers and employees of law firms understand their Deterrence: to discourage law- by the level of identified risk. obligations when handling trust monies. yers from handling clients’ monies One of their key educative roles is assisting NZLS improperly; and Lisa Attrill is the New Zealand Law CLE Ltd with the delivery of the Trust Account Demonstration: to demonstrate Society Inspectorate Manager.

Murray Earl’s contribution to Family Law Section recognised

Hamilton barrister Murray Earl’s significant contribution to the Law Society’s Family Law Section was acknowledged at the section’s executive meeting on 16 March: the last which Murray will attend in his ex officio capacity as editor of the quarterly magazine The Family Advocate. He has stepped down as editor, with Dr Alan Cooke taking over. Murray’s service to the section runs over the full 20 years since its establishment, and he also served for five years before that on the Law Society’s family law committee. On behalf of the section, chair Kirsty Swadling presented him with a Mont Blanc pen to add to his collection. A special bar dinner for Murray will be held in Hamilton in late July.

15 NEW ZEALAND LAW SOCIETY May 2018 · LAWTALK 917

Use of “normal Legislation to clear working hours” LCRO backlog problematic welcomed

The Employment Relations Amendment Bill before The Law Society has welcomed the Tribunals Parliament inserts a new section 18A to provide that Powers and Procedures Legislation Bill which gives the an employee who is appointed a “union delegate” is Legal Complaints Review Office (LCRO) new powers entitled to reasonable paid time during “normal working to assist in clearing a backlog of complaints involving hours” to undertake union activities in certain circum- lawyers. The legislation will also make the resolution stances. In a submission to the Education and Workforce of complaints more efficient and timely, it has told Committee, the Law Society says the expression “normal Parliament’s Justice Committee in a submission on working hours” may be problematic where the hours of the bill. work for the employee are variable. It also recommends Speaking to the submission, Acting Executive Director clarifying who is a “union delegate” to avoid uncertainty Mary Ollivier said both the Law Society and LCRO have as to the person appointed to the role. The submission been concerned for many years about the LCRO’s backlog recommends a number of changes to provide clarity. of cases and resulting delays. The submission also points to some issues with the “The backlog has been sitting at a very high level – definition of “employer” in a proposed amendment to around 500 to 600 cases – for some years,” Mrs Ollivier section 67A for trial period clauses. The Law Society says said. “While there has been some recent improvement it is unclear if the inclusion of “fewer than 20 employees” in the number of decisions made, the backlog remains. in the definition is intended to capture casual employees The delays are unacceptable, unfair for complainants within the head count. It notes that this could inad- and lawyers, and undermine the LCRO’s consumer vertently encourage casualisation of the workforce, as protection role.” a means of circumventing the “fewer than 20” limit. The LCRO is an independent body that reviews deci- sions of lawyers standards committees on complaints involving lawyers. Mrs Ollivier said the Law Society is often mistaken Support for as part of the LCRO. “There is a widespread misperception amongst lawyers changes to improve and complainants that the Law Society is responsible for the LCRO delays and this often results in unwarranted access to legislation criticism. “The Law Society’s Lawyers Complaints Service has put a lot of effort into improving the time it takes to A Law Society submission to the Justice select conclude its complaints. Around 40% of complaints are committee on the Legislation Bill welcomed proposals closed within 28 days, with an overall average time for all to improve the quality of legislation and to make it easier complaints of 148 days. It is disap- for people to access and understand legislation affecting pointing that the delays at the LCRO their legal rights and obligations. The bill will require for complaints that go on review all legislation – including secondary legislation – to undo the good that has been done be published electronically in one place, with limited by the Lawyers Complaints Service exceptions. in being timely and responsive.” Spokesperson Jason McHerron told the committee Amendments enabling the LCRO that it was vital in any democracy that people could to strike out unmeritorious applica- access legislation. tions for review and to have cases “This step will significantly improve people’s ability dealt with on the papers should have to access the law and to understand their obligations an immediate and significant impact and rights,” Mr McHerron said. on reducing the LCRO’s backlog. “Poor legislation leads to uncertainty and costly dis- “To that end the Law Society is putes. One purpose of the bill is to allow legislation to very supportive of the Bill’s pro- be shorter, simpler and more consistent. Measures to posed amendments, and hopes improve the quality of legislation are welcomed, as an they will be effective in promoting important part of a liberal democratic state committed efficiencies and reducing the back- to the rule of law.” log,” she said.

16 LAWTALK 917 · May 2018 NEW ZEALAND LAW SOCIETY

Transgender rights issues Clarification not addressed in bill on law employee Advice given by the Ministry of Justice on consistency of the Births, Deaths, Marriages, and Relationships Registration Bill 2017 with the New exemption Zealand Bill of Rights Act 1990 does not address some important Bill of Rights issues relating to the rights of transgender people, the Law Society supported says. The bill amends and largely re-enacts the Births, Deaths, Marriages, and Relationships Registration Act 1995. A submission by the Law Society focuses on whether it gives due recognition to the rights of transgender The Law Society supports clar- people seeking to change their recorded sex and whether the limitations ification that employees of lawyers it imposes on that right are demonstrably justified. or law firms are exempt from the The Law Society says the ministry’s advice contains no analysis of why licensing requirements of the entitlements that depend substantially on a birth certificate and the corre- Immigration Advisers Licensing sponding entry on the register require the sex of the person to be as it was Act 2007. Commenting on a MBIE at birth, rather than the person’s subsequently self-identified sex/gender. consultation document on proposed “The questions whether the requirement to undergo medical treatment, amendments to the Act, the Law the absence of an option to identify otherwise than as male or female, and Society has recommended that the the cost and burden of having to make a Family Court application raise scope of the exemption be clearly important Bill of Rights issues that are not addressed in the Ministry of stated. It suggests that “an employee Justice’s advice,” it says. of a lawyer, law firm or incorporated The submission says the factors that demonstrably justify discrimination, law firm may provide immigration as required by section 5 of the NZBORA, need to be carefully articulated and services and advice to their employ- it recommends that careful consideration be given to whether the section er’s client”. 5 test has been met.

Courts Matters Bill objectives Hon Rex Mason supported Prize for Excellence in Legal Writing The Courts Matters Bill objectives of contribut- ing towards the goal of a modern, efficient and effective entries open courts system are supported by the Law Society. The omnibus bill complements the Tribunals Powers and Procedures Legislation Bill. The Wellington branch of the Law Society, as In its submission on the Courts Matters Bill, the Law trustee of the Honourable Rex Mason Trust, will be Society makes 11 recommendations for changes which accepting submissions for the 2017 Hon Rex Mason Prize it says will improve its clarify and workability, as well for Excellence in Legal Writing until 23 June 2018. To as ensuring consistency with the rights and freedoms be eligible, entries must have been published in a New affirmed in the New Zealand Bill of Rights Act 1990. Zealand legal publication between 1 January 2017 and 31 Half of these relate to courts security. The Law Society December 2017. Submissions must be sent on the official says it does not support the proposal to extend Court entry form, which is available on the Wellington branch Security Officers’ powers beyond the precincts of the web pages or by emailing [email protected]. court grounds and onto public property, namely “any The prize, New Zealand’s oldest for legal writing, is footpath between the building and the road”. It says the valued at around $1,000 each year. It was established in public area beyond the court precinct should properly 1973 and commemorates Henry Greathead Rex Mason fall to the Police to supervise, given their training, wider (1885-1975), one of New Zealand’s longest-serving MPs statutory powers and well established public role. and a former Attorney-General and Minister of Justice.

17 NEW ZEALAND LAW SOCIETY May 2018 · LAWTALK 917

Special livestock Property forfeiture rustling provision not appropriate not needed consequence for infringement The harm caused by livestock rustling should continue to be assessed by the courts in the specific cir- offence cumstances of each case, the New Zealand Law Society has said in a submission on the Sentencing (Livestock Rustling) Amendment Bill. The bill is designed to deter The Law Society says it does not consider that people from engaging in livestock rustling by identifying forfeiture of property is an appropriate legal conse- it as an aggravating factor at sentencing. However, the quence of committing an infringement offence. In a Law Society says the Sentencing Act 2002 already enables submission to Parliament’s Environment Committee on the courts to consider the “extent of any loss, damage, or the Conservation (Infringement System) Bill, the Law harm” resulting from particular offending as an aggravat- Society says the bill introduces an infringement system ing factor that may require the imposition of a stronger into conservation related legislation. However, it does sentence. The particular harm resulting from livestock not limit the consequences of infringement offending rustling is already able to be appropriately factored into to a modest infringement fee. sentencing decisions. The Law Society says the bill is not “Rather, the bill provides for a combination of infringe- needed, and it recommends that it not proceed. ment fee and potential forfeiture of property, depending on whether a charging document is laid in relation to an infringement offence. The Law Society considers that it is inappropriate to provide for forfeiture of property Using the Law to be a potential consequence of the commission of an infringement offence.” Society’s AML/ The submission recommends that the consequence of committing an infringement offence should be limited CFT specimen to payment of an infringement fee of no more than $1,000. It says the forfeiture of property provisions are compliance inconsistent with the fundamental principles under- pinning infringement offence regimes and they should documents be removed from the bill.

The Law Society has provided a bundle of specimen documents for law firms to adapt when implementing their compliance programme for Anti-Money Laundering and Countering Financing of Terrorism (AML/CFT). Lawyers and conveyancers will become reporting entities under the AML/CFT legislation on 1 July 2018. The intention with the specimen documents is to provide a basic foundation upon which a tailored compliance frame- work can be built to reflect the practical realities, needs and unique aspects of each law firm and practice. Practical guidance for law firms which decide to use the specimen documents is available on the Law Society website, “How to use the New Zealand Law Society speci- men compliance documents”. The guidance and the documents can be found in the section Practice Resources/Practice Areas/AML-CFT.

18 LAWTALK 917 · May 2018 NEW ZEALAND LAW SOCIETY

End of Life Choice Mark Bullock Bill submission re-elected Whanganui branch A Law Society submission on the End of Life Choice Bill does not comment on the policy of the Bill, which President gives people with a terminal illness or grievous and irremediable medical condition the option of requesting assisted dying. The Law Society says there is a wide Mark Bullock was re-elected President of the divergence of views within the legal profession and its Whanganui branch of the Law Society at the branch AGM suggestions and comments are intended to be neutral on 9 March. Rob Goldsbury was elected Vice-President. and constructive, with a view to improving the operation Elected to the branch Council were John Unsworth, of the bill should it proceed. The submission identifies Kathryn Crooks, Sarah Brown, Scott Oliver, Beverley a number of areas in the bill which it says require Pearce and Samantha Bills. clarification. Malcolm McKenzie “Fully and fairly” re-elected unusual Southland branch

Requiring a defendant being prosecuted for cartel President conduct to provide sufficient details about an available exception or defence to “fully and fairly inform” the prosecution of the manner in which the exception Malcolm McKenzie was re-elected President of or defence is claimed is an unusual use of words, the the Southland branch of the Law Society at the branch Law Society has said in a submission on the Cartels AGM on 6 April. Phil McDonald was re-elected Vice- (Criminalisation of Cartels) Amendment Bill. The bill President. Elected to the branch Council were Janet proposes new criminal offences for cartel conduct by Copeland, Paul Gray, Richard Smith, Mike Mika, Toni adding a new section 82B to the Act. This requires the Green and Joseph Mooney. Crown to prove that a person intended to engage in price fixing, restricting output, or market allocating. The Law Society says the words “fully and fairly” are Fake jury email unusual: “Normally where there is a requirement to give notice of a statutory defence warning or exception, it is sufficient to state the facts relied on. The words ‘fully and fairly’ add evaluative qualifiers, The New Zealand Law Society has warned against which generate additional room responding to an email purporting to be an invitation for disagreement about whether a to people selected for jury service. Headed “Justice notice is adequate." It suggests the Department Invitation”, the email read: words be omitted. Dear Prospective Juror, The submission also says it is You have been selected to participate in a court apparent from explanatory mate- proceeding as a juror which is an opportunity for you rials with the bill that the notice to exercise your civic right and duty, contributing your requirement does not place any onus own quota to the justice system. You are hereby sum- on the defendant to prove her or his moned under the Jury act of New Zealand to attend a defence, with the burden of proof jury service. Click Here to register your information in remaining on the prosecution. The order to get a jury number. Law Society says this is an important Good Luck point and it would be helpful for the It was very likely that clicking on the link would bill to make this clear. expose the computers of recipients to a virus or hacking.

19 NEW ZEALAND LAW SOCIETY May 2018 · LAWTALK 917

Kent Arnott new Guidelines for Marlborough branch Suspended Lawyers President Practice Briefing

Kent Arnott was elected President of the The New Zealand Law Society has issued a new Marlborough branch of the Law Society at the branch Practice Briefing, Guidelines for Suspended Lawyers. The AGM on 17 April. Kent grew up in Invercargill and guidelines are intended to provide lawyers and their firms studied at the University of Otago, graduating BA with steps that need to be taken if a suspension order is (political studies) and LLB in 2007. He was admitted issued, a summary of conduct which suspended lawyers to the bar in March 2008 and started work with are not permitted to do, the procedures law practices need Blenheim firm Gascoigne Wicks, where he worked to follow if they seek consent to employ a suspended in general litigation. Kent went to the independent lawyer, and information on applying for a practising bar in 2015 and works mainly in criminal, family, certificate once any period of suspension has ended. relationship property and employment law. In the year to 30 June 2017, 10 lawyers were sus- Kent has been a Council member of the Marlborough branch since 2016. pended by the New Zealand Lawyers and Conveyancers He is also a volunteer lawyer at Community Law Marlborough. Outside of Disciplinary Tribunal. This compared to 6 in the 2015/16 work, Kent and his wife enjoy spending time with friends and family. They year and 14 in the 2014/15 year. The Practice Briefing can also like international travel and, closer to home, exploring the sights of be found on the Law Society website in the Practice sunny Marlborough. Resources section.

LAW CARE 0800 0800 28

Here to listen and to provide information. Here to help. Confidential, non-judgemental support. A safe place to call on sensitive matters such as workplace harassment and unacceptable behaviour. Information on options and support available.

The Law Society’s Law Care phone line is available 9am to 7:30pm Monday to Thursday and 9am to 5pm on Friday. You can also email [email protected] with your concerns.

CHANGING THE CULTURE OF A PROFESSION

20 LAWTALK 917 · May 2018 UPDATE · COMPANY LAW

UPDATE COMPANY LAW

Court. This point was emphasised When the liquidators in paragraphs [38] and [39] of the judgment: “[38] The problem in coming to come calling, are a clear conclusion on the issues essentially results from the nature of liquidation proceedings, which are the company’s last not generally an adequate vehicle by means of which to explore issues of any complexity that may arise financial statements about whether there is a debt in existence or not. “[39] My conclusion is that, after the last word? examining the issues surrounding the transaction, a liquidation order would not be permissible. It is not a BY CALLUM defendant and whose family trust owned the majority suitable subject for discussion having REID of the shares in the company. It was Mr Peters who had regard to the principles stated at approved the company’s last financial statements prior paragraph [17] of this judgment.” to liquidation, and the shareholder’s current account debt (Note that the principles stated The issue was recorded as owing in the statements. in paragraph [17] were all derived When a company is wound up, one Following service of the liquidators’ statutory demand, from the South Waikato Precision of the liquidators’ first tasks is to Mr Peters sought legal advice and retained new account- Engineering Ltd judgment). secure the company’s books and ants to review the last financial statements. The new records, including the most recent accountants identified errors in the statements, including Conclusion financial statements if available. If trust distributions made to the company when it was not The judgment demonstrates the the statements record debts owing named as a beneficiary in the trust deed and distributions importance of determining the by shareholders under their current to the company which had not been properly authorised right form of procedure before accounts, then these debts are often by the defendant. When those errors were reversed out proceedings are commenced. If subject to recovery action by the in restated accounts, the result was that the company faced with evidence of a genuine liquidators. However, what if the owed a debt to the defendant (about $35,000). and substantial dispute, liquidators shareholders contend that the finan- In defending the winding up claim, the defendant would be well-advised to consider cial statements are not accurate relied on the conclusions of the new accountants to commencing ordinary proceedings and contain material errors? Can oppose the claim; the defence was upheld by the court rather than winding up proceedings. these errors be raised to defeat the and the winding up claim was dismissed. On the issue of costs, in a separate liquidators’ recovery action? judgment of Justice Venning [2018] This question was addressed The judgment NZHC 165, no order for costs was directly in the recent judgment of The judgment is useful for highlighting two important made. The court was influenced by Associate Judge Doogue in Ezipaint practical points about claims of this kind. the fact that it was Mr Peters who Ltd (In Liquidation) & Ors v Peters First, even though the defendant had failed to apply had authorised the transaction Holdings Trustee Ltd [2017] NZHC 3139. to set aside the statutory demand, the court still had which was the subject of the dispute jurisdiction to consider the defence. In reaching this con- and the failure of the defendant to The facts clusion, the court relied on the judgments of Associate apply to set aside the statutory In Ezipaint, the company’s main Judge Faire in South Waikato Precision Engineering Ltd v demand. The court concluded that, shareholder, a trustee company, Ahu Developments Ltd HC Auckland CIV-2008-404-970, in the circumstances, the costs was the defendant in a winding up 10 December 2008 at [22] and also the Court of Appeal should “lie where they fall”. ▪ claim brought by the liquidators. in Yan v Mainzeal Property and Construction Ltd (in rec This followed the failure of the and in liq) [2014] NZCA 190. Callum Reid  callum.reid@ defendant to comply with a statu- The court’s primary concern was to decline a winding legalchambers.co.nz is a bar- tory demand for the unpaid current up order where there is a genuine and substantial dispute rister at Harbour Chambers in account debt owing to the company as to the existence of a debt such that it would be an Wellington and was counsel for (approximately $61,000). Prior to abuse of the process of the court to order a winding up. the defendant in Ezipaint Ltd liquidation, the company was con- Secondly, if the dispute is genuine and substantially (In Liquidation) & Ors v Peters trolled by Mr Peters, the sole director, disputed, it should be resolved through action com- Holdings Trustee Ltd [2017] NZHC who was also the sole director of the menced in the ordinary way and not in the Companies 3139.

21 ACC · UPDATE May 2018 · LAWTALK 917

UPDATE ACC ACC and the Woodhouse Principles: community responsibility

BY DON RENNIE

firm decisions on extending the scheme could be made. The foundation for the current ACC legislation In any real sense the proposed scheme was not an is found in the recommendations of the 1967 Woodhouse insurance scheme. It was a compulsory and universal Royal Commission Report “Compensation for Personal method of sharing the cost of social activity. The report Injury in New Zealand” which proposed the abolition of said the scheme should follow the five fundamental the common law right to sue for damages for personal principles and meet the requirement of cost. injury caused by negligence or a breach of statutory duty, In 1972 the then National government introduced and its replacement with a statutory system based on legislation which created a hybrid scheme that cov- five fundamental principles: community responsibility, ered only accident victims who were earners or the comprehensive entitlement, complete rehabilitation, real victims of motor vehicle accidents, leaving the rest of compensation, and administrative efficiency. the community to pursue common law remedies. The This is the first of a series of articles by Don Rennie 1972 Act was drafted on lines similar to the previous that will discuss each of these principles and the extent Workers Compensation Act and other legislation involv- to which they are embodied in legislation and in its ing insurance principles based on fault and liability. The administration by the ACC. While Mr Rennie is convenor legislation clearly did not meet the first and fundamental of the Law Society’s Accident Compensation Committee, Woodhouse principle of community responsibility, nei- the views expressed in this article are his, and not nec- ther did it meet the principle of comprehensive cover essarily those of the Law Society. and entitlement. Community responsibility Scheme extended The Woodhouse Report regarded this principle as fun- The 1972 Act was amended in 1973 by the new Labour damental. It rested on two arguments: first, because government. The amendment came into operation on 1 modern society benefits from the productive work of its April 1974 and extended the scheme to cover everyone citizens, society should accept responsibility for those who suffered personal injury by workers who are prevented from working by physical accident in New Zealand including incapacity; and secondly, because we are all involved in non-earners such as children, the community activities which each year exact a predicta- unemployed, the aged and visitors ble and inevitable price in bodily injury, society should to the country. The Act removed the share in sustaining those who become the random but People are right of any person who had cover statistically necessary victims. The inherent cost of re-training to sue in a New Zealand court to these community purposes should be borne on a basis and moving recover damages for personal injury of equity, by the community. between suffered in New Zealand. The scheme shifted the common law principle of employment In amending the 1972 Act, and in entitlement based on proof of negligence, or a breach types and subsequent amendments, no oppor- of a statutory duty, to the needs of the injured person many have tunity has been taken to redraft the consequent upon personal injury, regardless of the cause more than legislation to clearly incorporate of the injury. While the report limited its recommen- one job the unique five principles. Instead, dations to incapacity arising from personal injury by and not the legislation has carried over the accident, it said that the scheme should be extended necessarily old risk-based user pays principles to include incapacity from sickness and other causes. full-time or in and drafting methods which do not Because the recommendations were far-reaching, it said the same risk suit the fundamental community that more statistical information was needed before environment. responsibility principle in a new

22 LAWTALK 917 · May 2018

legal system. For example, the provisions for funding the scheme in the 1972 Act merely imported the previous levy system that applied under the Workers Compensation Act. Levies were based on the user pays principle: the higher the risk (and therefore cost to the scheme) the higher the premium. Levies were fixed by Order in Council based on prescribed classifications of earners, industries and occupations at pre- scribed differential rates. The levies were set on a risk-related basis and adjustments could be made within classes according to safety records. This variable risk-based levy system ignores the fact that all risk-based levy rates have contin- Since the ACC is a state enterprise its funds are counted industries and occupations are ued to be applied and the concept as “government money” and appear in the statement interdependent. It therefore of “fully funding” each of the levy of government accounts. ignores the fundamental principle rated accounts has been adopted. The government is currently considering significant of community responsibility. The The issue of pay-as-you-go funding, changes occurring in the way employment works in a Woodhouse Report criticised the as against full funding of the various modern economy because of the impact of technology classification of risks as a basis for accounts, has been the subject of such as automation, robots and artificial intelligence. levy setting and recommended a political discussion over the years. People are re-training and moving between employment uniform levy based on earnings, The present full funding has applied types and many have more than one job and not nec- which was calculated to be at a rate since the then Minister for ACC Nick essarily full-time or in the same risk environment. In slightly more than 1% of wages paid Smith in 2008 persuaded his col- the near future, the “gig economy” will have a massive by employers to employees and 1% leagues, and the public, that the ACC impact on ACC funding and it is likely that the varia- of net earned income by the self-em- was running out of money and there ble levy rate system will not survive. A universal levy, ployed who would be entitled to a was a need to have reserves to fund based on the national payroll regardless of industrial tax deduction for the levy paid. the ongoing cost of current claims. risk activity, will likely be the only answer. The report pointed out that in 1947, That is an insurance principle made The Woodhouse Report carefully considered the classification of industries as a basis necessary because sometimes insur- options for funding the scheme and ruled out variable for levy setting had been discarded ance companies go out of business levy rates in favour of a single uniform levy. That view in the United Kingdom. leaving the ongoing cost of current was supported by the Law Commission’s 1988 report. In 1988 the Law Commission claims to be paid from reserves. A levy based on a percentage of the national payroll Report on the Accident Compensation The ACC scheme is a unique sufficient to meet the annual cost of claims (with a small Scheme recommended that for rea- legal system administered by the reserve to meet the cost of a national disaster) would sons of equity, and as a matter of government as part of the general recognise the principle of community responsibility. principle, as well as practicality, a legal fabric and governments don’t Successful management of the cost of claims would single rate levy for employers and “go out of business”. ACC levies are depend on the success of the safety, accident prevention the self-employed be introduced. The a form of compulsory tax. As the and rehabilitation programmes implemented by the ACC rate would be fixed by Parliament and result of the full funding policy, as required by statute. would apply evenly to the payroll of the ACC has accumulated reserves Community responsibility remains the fundamental employees (in the case of employers) in excess of $36 billion which has principle behind the ACC scheme and should form the and to the tax assessable income of made the Corporation one of the basis of legislation and policy administered by the ACC. the self-employed. largest investors in the New Zealand The current levy system and its administration by ACC Stock Exchange next to the National is a significant element in the administrative cost of the Recommendations Superannuation Fund. It also means scheme. This topic will be addressed in a later article. ▪ never incorporated that, over the last 20 years, $36 These recommendations have never billion has been taken out of the Don Rennie is convenor of the Law Society’s ACC been incorporated into the scheme productive economy for investment Committee. The opinions in this article are those of or the legislation. Instead variable by the ACC investment committee. the author in his private capacity.

23 EMPLOYMENT LAW · UPDATE May 2018 · LAWTALK 917

UPDATE EMPLOYMENT LAW The vicarious liability of employers – worth another look?

BY MARIA DEW AND ANJORI MITRA

relevant employee had been given extensive supervi- Given the recent media attention on the conduct sory duties over young children, with little oversight by of employees in New Zealand workplaces, it is worth- others, the circumstances met the “close connection” while to have a fresh look at the law on the vicarious test. The environment in which the abuse occurred was liability of employers for the actions of their employees. connected to the employment and vicarious liability It has long been the case that, at common law, an was imposed. Vicarious liability for sexual abuse was employer is vicariously liable for the tortious acts of also imposed on employers in similar circumstances in its employees, if the acts are carried out in the course Maga v Archbishop of Birmingham [2010] 1 WLR 1441 (CA) of employment and bear a sufficient connection to the and Various Claimants v Catholic Child Welfare Society employee’s role. The recent application of this test in [2013] 2 AC 1. the United Kingdom has demonstrated that it may be In 2016, the United Kingdom courts further considered difficult for employers to avoid vicarious liability claims, the “close connection” test. In Cox v Ministry of Justice even where the employee’s conduct is such that it would [2016] AC 664, the UK Supreme Court held the Ministry never have been sanctioned by the employer. This raises of Justice was vicariously liable for injuries caused by the question of how that test might be applied in New a prisoner negligently dropping a heavy bag of rice on Zealand. another prisoner. Both prisoners had been assigned to work in the kitchen by the ministry (although they were The “close connection” test not technically employed by the ministry). The close connection test was originally formulated in Another decision of the UK Supreme Court from 2016 the leading English text, Salmond and Heuston on the Law was Mohamud v Wm Morrison Supermarkets plc [2016] of Torts, and developed in two key cases: the decision of 1 AC 677. Here, the employee was a sales attendant at a the Supreme Court of Canada in Bazley v Curry [1999] 2 petrol station. The claimant stopped at the petrol station SCR 534 and of the House of Lords, United Kingdom in and, after requesting assistance, Lister v Hesley Hall Ltd [2002] 1 AC 215. The facts of those was subjected to racist and abu- cases are similar. In both cases, the defendant operated sive language from the employee. a residential care facility for children and was held to The employee then followed the be vicariously liable for sexual abuse by an employee. claimant as he walked back to his Those cases confirmed the approach to vicarious liability There have car and subjected him to a serious was as follows: been very physical assault. First, the existence of a relationship of employment few employer The Supreme Court, on appeal, between the wrongdoer and the party alleged to be vicarious held the employer was vicariously vicariously liable, or a relationship akin to employment liability liable for the employee’s torts (eg, an agency relationship). cases in New of assault and battery. The court Secondly, a sufficient connection between the wrong- Zealand in confirmed the established test ful act and the scope of the wrongdoer’s role as employee recent times. was to inquire as to the nature of or agent. This involves consideration of the scope of the The existing the employee’s job and then to wrongdoer’s role and the relationship between that role authorities ask whether there was sufficient and the wrongful act. are primarily connection between that job and At first glance, it seems an employer should never be older cases the employee’s wrongful conduct held liable for criminal acts of sexual abuse, given most from the to make it right as a matter of social employers would never authorise such acts. However, 1980s and justice, for the employer to be held the court in both Bazley and Lister held that because the 1990s liable. The court acknowledged that

24 this required an evaluative judg- manager after the employer’s 3 NZLR 450, the Court of Appeal ment in each case having regard to Christmas party. The court held the used the same approach to hold the the circumstances. The court held in assault was not sufficiently con- Crown vicariously liable for sexual this case the employee’s role was to nected to the managing director’s and physical abuse perpetrated by interact with customers, the assault employment, as it occurred during foster parents against a child placed was on the employer’s premises, he “an entirely independent, voluntary, in their care. In Nathan v Dollars was on duty and the interaction and discreet early hour drinking ses- & Sense Ltd [2008] NZSC 20, the was therefore within the “field of sion of a very different nature to the Supreme Court used the same test activities” that had been assigned Christmas party and unconnected to find a bank vicariously liable for to the employee – even though the with the defendant’s business”. This its agent’s (unauthorised) forgery of assault was never sanctioned by case has been appealed to the UK signatures on mortgage documents. the employer. There was sufficient Court of Appeal, but no judgment In its judgment, the court confirmed connection between the role and has yet been issued. that even if an agent’s act was fraud- the wrongful conduct to hold the ulent, criminal and unauthorised by employer vicariously liable. New Zealand the agent’s principal, the principal By contrast, another 2016 case, vicarious liability in could still be vicariously liable for Bellman v Northampton Recruitment employment law that act. Ltd [2016] EWHC 3104 (QB), dis- The approach in Bazley and Lister However, there have been very missed the claim of vicarious has been followed in New Zealand, few employer vicarious liability liability against the employer. The particularly in the context of agency cases in New Zealand in recent employer’s managing director had (rather than employment) relation- times. The existing authorities are committed an assault on a sales ships. In S v Attorney-General [2003] primarily older cases from the 1980s

25 EMPLOYMENT LAW · UPDATE May 2018 · LAWTALK 917

and 1990s, which have followed Civil claims for employer vicar- arising from a physical injury the test of liability where the acts ious liability outside the employ- will be barred by the Accident are carried out in the course of ment or human rights jurisdiction Compensation Act 2001 (ACC Act); employment. In McLaren Transport are, therefore, not common where • Any claim for compensatory v Somerville, [1996] 3 NZLR 424, a the claimant is also an employee damages for mental injury aris- service station employer was liable of the employer. This is likely to be ing from a sexual assault is also for damages when an employee similar to the situation overseas – barred by the ACC Act; over-inflated car tyres. In the recent the United Kingdom cases discussed • Although exemplary damages can case of Wishart v Murray [2015] NZHC above, for example, all concern still be claimed for injuries cov- 3363, in the context of a strike-out claimants who were not employees ered by the ACC Act, any claim for application, the court confirmed of the defendant. exemplary damages, is generally an employer could be vicariously However, there are situations unavailable against a party that liable for defamatory statements where the employment jurisdiction is held vicariously liable. published by an employee in the will not apply, and a claim for vicar- There are only a limited number course of his employment. ious liability in tort may proceed. of situations when an employee On the whole, there has been little This could include: may have a claim and remedy that discussion or development in New • Where the claimant is not an is not barred by the ACC Act. This Zealand case law of an employer’s employee, but an independent may arise where the claim concerns vicarious liability for the actions of contractor or a volunteer (eg, a mental injury that does not arise employees in the context of work- an unpaid intern, a prospective from a physical or sexual assault, place conduct. This has likely been employee, a student engaged but instead from other workplace for a combination of reasons relating on a contract basis or the repre- misconduct involving harassment to the ACC bar on compensatory sentative of another organisation or bullying behaviour. In this event, damages and the features of our working with the employer). The claims may involve: own employment jurisdiction. employment jurisdiction is not • Vicarious liability for negligent available to claimants who are not workplace conduct of manager; Availability of the employees (however, the human • Vicarious liability for the tort of Employment jurisdiction rights jurisdiction is available to assault, in contrast to battery, An employee who has a claim applicants for employment and which does not require actual relating to the conduct of another unpaid workers). physical contact, simply an appre- employee (or a customer or client • Where the claimant is no longer hension of the infliction of force; of the employer) is likely to have a an employee and did not complain • Vicarious liability for the tort of personal grievance claim against about the workplace conduct at intentional infliction of emotional the employer under s103 of the the time it occurred but left the distress. This would be a novel Employment Relations Act 2000 employer, and some years later claim given this tort has not yet (the ERA). That claim is brought in wishes to raise a claim for harm been developed in New Zealand. the Employment Relations Authority caused. and the primary remedies will include • Where the employer did take Conclusion loss of wages and/or compensation practicable steps to prevent the On analysis there are a very limited for “humiliation, loss of dignity, and repetition of the workplace con- number of cases in which a claim injury to the feelings of the employee” duct after being informed of it, against an employer for vicarious under s123(1)(c) of the ERA. but the employee has still suffered liability arises. The range of damages Alternatively, a complaint of dis- serious harm. A personal griev- will also be constrained. However, crimination under the Human Rights ance claim will not be available given the current focus on work- Act 1993 (the HRA) may also be avail- as in this event, the employer place conduct, it seems worthwhile able and provide for compensation. will have satisfied s117 and s118 having a closer look at employer Section 68 of the HRA explicitly of the ERA, in respect of sexual vicarious liability risks. ▪ makes an employer vicariously liable and racial harassment matters. for acts of discrimination perpetrated Maria Dew  maria@mariadew. by its employees. In the Human ACC constraints on co.nz is a barrister at Bankside Rights Review Tribunal decision of civil claims in tort Chambers, Auckland and spe- DML v Montgomery (2014) 11 NZELR For those claims that may be able cialises in employment law. Anjori 673, for example, vicarious liability to proceed on the basis of a tort by Mitra  [email protected] was imposed on an employer under an employer, what remedies will be is a junior barrister at Bankside s68 of the HRA, for sexual harass- available? The following remedies Chambers who works in a range of ment perpetrated by one employee cannot be claimed: civil, commercial and employment against another. • Any claim for compensation matters.

26 LAWTALK 917 · May 2018 UPDATE · FRANCHISING

UPDATE FRANCHISING Franchise Agreements and penalty clauses

BY DEIRDRE WATSON

be left with only a set of chattels which are often worthless to Franchise agreements typically con- anyone except the franchisor or another franchisee. Particularly tain detailed termination clauses that where the underlying breach is minor, such clauses are heavily enable a franchisor to terminate the penal in their effect and can seem well out of proportion to the franchise, either for a breach or upon the breach or the protection of the franchisor’s interests. occurrence of a range of other events. The question arises whether such clauses attract the penalty Those events may include such things as doctrine and are thus unenforceable. It is not that usual for bankruptcy, liquidation, or other serious franchisees to raise the penalty doctrine as a ground of dispute events that will not, in their own right, on termination. In my view, there is still scope for franchisees be a breach of the franchise agreement. to argue that some of these onerous termination provisions are Separately, franchise agreements usually unenforceable penalty clauses, albeit that scope is restricted to provide for a raft of onerous outcomes some extent by the recent redirection and approach with the for franchisees in the event of termina- penalty doctrine. tion. These can include all or any of the following: Penalty clauses: re-direction in approach • Payment of a sum of money equivalent As we all know, the law in relation to the doctrine of penalties has to the amount of all royalty fees which undergone a “redirection”. (The Court of Appeal in Wilaci Pty Ltd v would have otherwise been due up to Torchlight Fund no 1 LP (In receivership) [2017] NZCA 152, at [79] uses the date when the franchise agreement the words “Doctrine Redirected”). It has recently been revisited would have terminated, if not earlier by superior courts in both the UK (Cavendish Square Holding BV v brought to an end; Makdessi [2015] UKSC 67; [2016] AC 1172) and Australia (Paciocco v • Early termination fees; Australia and New Zealand Banking Group • An obligation to assign the lease of the Ltd [2016] HCA 28; (2016) 333 ALR 569.). franchisee’s business to the franchisor; Our Court of Appeal recently considered • An obligation on franchisees to sell all these developments in Wilaci Pty Ltd v assets of the franchised business to Torchlight Fund no 1 LP (In receivership) [2017] the franchisor at either book or market NZCA 152, albeit in a case in which the law value; of New South Wales was applied. Although • No compulsion on the franchisor to New Zealand the case was governed by that state’s law, pay any sum by way of goodwill to the has no franchise I am of the view the same principles are franchisee on termination. specific likely to apply to contracts governed by Most franchise agreements will provide legislation, New Zealand law. The decision is therefore that these consequences apply to any type and so there is likely to influence how the New Zealand of termination, regardless of whether the no legislation courts now approach penalty clauses. agreement has come to an end, organically, even in the As a result of this “redirection”, the by way of effluxion of time, terminated by pipelines which enquiry has swung away from a focus on reason of a minor breach by the franchisee, could come the genuine pre-estimate of the parties’ terminated by way of a more substantial to the rescue loss. The central issue (as was put by breach or event, or even validly terminated of franchisees Whata J in Honey Bees Preschool Ltd v 127 by the franchisee. dealing with the Hobson Street Ltd [2018] NZHC 32) is now The consequences of these contractual onerous effects whether a stipulated remedy for breach provisions is that a franchisee will effec- of a termination is out of all proportion to the legitimate tively lose all value in the business and provision. performance interests of the innocent

27 FRANCHISING · UPDATE May 2018 · LAWTALK 917

party, or is otherwise exorbitant or unconscionable, having regard is low, and there is a palpable power to those interests. imbalance from start to finish. Typically, The following factors will be relevant to this assessment: franchisees in many of these systems will (a) Whether the parties were commercially astute, had similar not have used a lawyer when they bought bargaining power and were independently advised; and the franchise and English will not be their (b) Whether the predominant purpose of the impugned clause first language. There will be considerable is to punish (as opposed to simply deter) non-performance. control exercised by the franchisor over This redirection will certainly make it easier for franchisors to avoid the franchisee’s business during the term the dark cloud of the penalties doctrine. A genuine pre-estimate of the franchise and the relationship can of the franchisor’s loss following the termination of a franchise look from the outside more akin to an agreement is a difficult thing to quantify and always ran the risk of employment contract than a commercial being quite a low sum. That is especially so where it is a very large franchise agreement. franchise system and where the loss of one franchisee registers In these foregoing situations, it could only as a blip on the finances of the franchisor or where the exiting be argued that the stipulated remedy for franchisee is quickly replaced, as will often be the case in a good breach is exorbitant or unconscionable, franchise system. having regard to the legitimate interests of the franchisor. Legitimate interests of franchisor There are two further aspects to the By way of contrast, quantifying and scoping the legitimate interests penalty rule which could assist fran- of the franchisor takes on a much weightier shape. For instance, in a chisees looking to get their heads above good franchise, franchisors invest considerable sums in developing water following the ending of a franchise their systems and intellectual property. They develop extensive relationship. operations manuals, training programmes, marketing strategies, product and supplier lists, and put in place systems to train fran- Scope of the penalty rule chisees and provide updated and ongoing support. They share all The first concerns the scope of the penalty that intellectual property and know-how with their franchisees. rule. Franchisors risk losing that information every time there is a There is a divergence between the High termination. They also risk damage to the brand on termination, Court of Australia and the United Kingdom particularly when the franchisee goes into liquidation and their Supreme Court on this point (note Andrews business is perceived to have closed down. To protect whatever v Australia and New Zealand Banking Group goodwill might be present in the franchisee’s site, it is often Ltd [2012] HCA 30; Cavendish Square Holding important to the franchisor to be able to secure the site. It stands BV v Makdessi [2015] UKSC 67; [2016] AC 1172) to reason that franchisors can easily say Australia takes the line that there doesn’t they have a strong legitimate interest need to first be the breach of a primary on termination. But a byproduct of that obligation in order to trigger the penal- interest is that the exiting franchisee can ties doctrine. In Australia, a secondary or expect to lose everything on termination collateral obligation may be the subject of including the shirt off their back. attention if it is triggered either by breach Despite that legitimate interest, in my or failure of a primary condition. In the UK, view a close examination of each franchise only obligations that take effect on breach and situation is necessary to see whether engage the rule against penalties. the contract remedy is out of all proportion If the New Zealand courts are to follow to the franchisor’s interest. It’s easy for the British approach, which seems likely franchisors to “talk up” their legitimate It is not (See, for example, Honey Bees Preschool interest. Yes, there may have been a con- unusual for Ltd), there will be plenty of scope for siderable investment in the franchise when franchise franchisors to wriggle even further away it was first set up but the franchisor may agreements to from the reach of the penalties doctrine, not have updated its systems, expanded be silent as to with potentially quite harsh results for its products and services or be otherwise whether the franchisees. putting any of its profits back into the consequences To explain what I mean by this, it is development of its own franchise. The of termination first necessary to understand the way in franchise might be a dying system where apply, which the consequences of termination of franchisees are not being replaced. regardless of the franchise agreements generally come In many franchises, particularly low whether the into play. barriers to entry franchises such as in the termination is Franchise agreements will typically home services sector where the investment for breach or provide for: made by franchisee is low, the level of has organically (a) A large number of primary obliga- training required to operate the franchise occurred. tions that must be adhered to by the

28 LAWTALK 917 · May 2018 UPDATE · FRANCHISING

franchisee. the penalty rule has of course extended breach notice in accordance with franchise (b) Separately, the right of the franchisor to many other agreed remedies other than agreement, requiring the franchisee to to terminate in the event of breach of simply stipulations to make a payment, pay damages to Century 21 in the sum of any of those obligations; including withholding payment clauses $164,433. This amount was calculated in (c) Sometimes, as part of (b) the right and forced transfer clauses – see Amaltal accordance with the franchise agreement of the franchisor to terminate on an Corp Ltd v Maruha (NZ) Corp Ltd [2004] 2 which provided a formula that obliged the immediate basis for other named NZLR 614 (CA) and see also Ringrow Pty franchisee to pay the average service and events, such as bankruptcy, conviction v BP [2005] HCA 71 and Jobson v Johnson marketing fee payment until the end of the or liquidation. [1989] 1 WLR 1026 at 1034-1035; [1989] 1 All term. The franchisee had to pay it. (d) Separately, agreed consequences of ER at 628, 634. termination which flow sometimes Legislative developments regardless of whether the termination Two franchise specific cases in Australia is for breach, or otherwise. While there has been no case specific In Australia now, legislation protecting Under this analysis, and bearing in mind to franchising on the question of pen- franchisees from unfair contractual pro- the court looks at the substance and not alty clauses in New Zealand, this issue visions means that franchisees will likely the form, both the right to terminate and has arisen in Australia. Both cases were be able to take their complaints about the consequences that flow from such decided by application of the genuine excessive liquidated damages clauses to termination will be regarded as the com- pre-estimate of loss formulation of Lord the Australian Competition and Consumer bined provisions that attract the penalties Dunedin, (Dunlop Pneumatic Tyre Co Ltd v Commission for legal action. doctrine. In substance, the consequences New Garage and Motor Co Ltd [1914] UKHL 1; New Zealand has no franchise specific of termination are a secondary obligation [1915] AC 79) but are still good examples of legislation, and so there is no legislation arising consequent upon a breach of a the types of issues that arise in franchising. even in the pipelines which could come primary obligation. In the first decision,King of the Pack Pty to the rescue of franchisees dealing with Where, however, there is a right to termi- Ltd v Luong [2012] NSWSC 785, an appeal to the onerous effects of a termination nate by the franchisor for an event which the New South Wales Supreme Court by the provision. is not defined as a breach, that would be franchisor, the franchisor unsuccessfully Notwithstanding the redirection in a primary obligation which would there- sought to recover an “early termination approach of the penalties doctrine, I believe fore not attract the penalties doctrine fee” from the franchisee on termination. there is still plenty of scope for franchisees (if the UK approach is to be preferred). I note that the franchise was a low bar- to try and introduce the penalties doctrine It follows that, if the UK approach is to rier to entry franchise, being a franchise when negotiating their exits. That scope be preferred, the penalties doctrine will where franchisees were permitted to sell is particularly evident in low barriers to not apply where the termination arises tobacco products in retail stores under the entry systems, or systems where there is because the agreement has simply come plaintiff ’s trade name – “King of the Pack”. a significant power imbalance or where to an end through effluxion of time. Where In a second Australian case, the outcome the system itself is dying, or retrenching, an agreement has ended organically, it went the other way for the franchisee. In or is otherwise a system that has simply has not been terminated for breach. This Century 21 Australia Pty Ltd v JLink Pty not kept pace with the market. ▪ is an important distinction which does Ltd & Smith [2015] SADC 58 the franchise not assist the position of franchisees. It is system, being a real estate franchise, was Deirdre Watson  deirdre.a.watson@ frequently the case that franchisors and more sophisticated and barriers to entry xtra.co.nz is a barrister specialising in franchisees are in dispute when their would have been higher with that type of franchising disputes. She regularly pre- agreements come to an end organically franchise. Two years into the third five- sents and lectures on franchise issues, about the harshness of the consequences year term of the franchise, the franchisee appears and acts regularly as counsel which then flow. Adding to the confusion, effectively ‘abandoned’ the franchise by in franchising disputes and is a board it is not unusual for franchise agreements ceasing to trade under the Century 21 member of the Franchise Association of to be silent as to whether the conse- brand. Century 21 issued a termination and New Zealand. quences of termination apply, regardless of whether the termination is for breach or has organically occurred. A franchisee whose agreement has terminated because it has come to an end through effluxion of time will find it more difficult to argue the Providing Professional Indemnity and specialist insurance harsh consequences of termination should be regarded as a penalty. products to the Legal Profession The second aspect of the rule against Visit www.justitia.co.nz for further information and application forms penalties which is often not fully appre- Or Contact: Mr Ross Meijer, Aon New Zealand ciated by franchisees is the misapprehen- 04-819-4000 sion that the doctrine only applies to the [email protected] payment of money. The application of

29 INTELLECTUAL PROPERTY · UPDATE May 2018 · LAWTALK 917

UPDATE INTELLECTUAL PROPERTY Initial interest confusion in internet search results allowable

BY KATE DUCKWORTH

the searches that led to customers clicking on an advertisement The New Zealand Court of Appeal appears to have allowed linking to National Mini Storage’s website; initial interest confusion to occur in search engine results in • A significant number of consumers look for National Mini Storage National Mini Storage Ltd v National Storage Ltd [2018] NZCA 45 using “mini” as part of the search terms. National Mini Storage (12 March 2018). had heavily emphasised “mini” in its branding and National Storage had undertaken not to target that word; The facts • Consumers are used to being presented with links to the web- In 2016 National Mini Storage, an Auckland-only storage com- sites of multiple providers and expect to distinguish among pany, sought an injunction to stop National Storage, an Australian them as competitors in a marketplace; company, entering the Auckland market as “National Storage”. • Clicking through to websites may indicate, not that consumers National Storage had not yet offered facilities in Auckland, but had are confused about supplier identity, but that they are evaluating done so in other parts of New Zealand since 2014. The trial was offerings and seeking contact details; heard in the High Court in 2017 and the injunction was refused. • The likely level of confusion from imperfect recollection is very National Mini Storage appealed to the Court of Appeal and the low, and the number of customers at risk is not sufficiently decision was released in March 2018. substantial to justify characterising National Storage’s conduct as misleading or deceptive. Such confusion is the consequence Evidence of consumer internet behaviour of National Mini Storage’s descriptive or generic name; and The crux of National Mini Storage’s claim was that consumers • When a consumer clicks through to the websites of National would be misled when they use word searches on the internet Mini Storage or National Storage any confusion is likely to be to find storage facilities. National Mini Storage brought extensive dispelled. evidence of how consumers behaved on the internet and also specifically how they behaved when searching for storage facilities Initial interest confusion and for National Mini Storage: Initial interest confusion arises when an infringing product, service • The percentage of customers who came to hear of it by internet or premises initially attracts a customer’s interest because of its or email; similarity to another. Courts have typically found that the fact • Google AdWords data and the click- that the customer’s interest is piqued is sufficient to justify legal through rate; relief, regardless of whether the customer subsequently realises • What consumers were entering as that the infringing product, service or premises is not the one he search terms, what results were being or she was initially wanting: Trust Bank Auckland Ltd v ASB Bank produced and what consumers did when Ltd [1989] 3 NZLR 385 (CA). presented with those search results; and Trust Bank Auckland is authority for the proposition that any • Google’s algorithm learned to distinguish sort of operative confusion that has an effect on how consumers between the two firms, so that National behave is actionable. In respect of the Fair Trading Act, the Court Storage dropped in organic ranking of Appeal held (at 389): when searches were undertaken for “There seems to us to be no reason why s 9 should not protect “national mini storage”. the public from being led into business premises by being misled as to the ownership of the business. Once a prospective The Court of Appeal’s findings customer has entered, he or she will often be more likely to buy. The conclusions based on the evidence … were that: [T]he effect of the statute is that members of the public have • Searches for “national storage”, excluding a right not to be misled about with whom they are dealing.” “mini”, were a small proportion of all of The Court of Appeal in National Mini Storage held that it need

30 not discuss initial interest confusion. Yet, • In Vancouver Community College v another name in the Auckland region. by holding that when a consumer clicks Vancouver Career College (Burnaby) Inc. through to the websites of National Mini 2017 BCCA 4 the defendant used the mark Lessons Storage or National Storage, any confusion “VCC”, the official branding of the plain- The case highlights the price to be paid is likely to be dispelled, it appears to be tiff, in its internet advertising and in its for descriptive trade marks, as well as a ruling that a level of initial interest con- domain name with nothing to distinguish reasonable level of discernment among fusion is acceptable. the defendant’s name from the plaintiff. internet users in general. The way the Court of Appeal dealt with initial interest Other cases where Acquiescence confusion is likely to be controversial, internet searching has National Storage also relied on the defence and may signal that a different approach caused confusion of acquiescence because the two firms to confusion and deception is required The High Court and the Court of Appeal had met and discussed National Storage’s between the cyber and bricks and mortar also distinguished earlier cases where interest in buying National Mini Storage. worlds. ▪ internet searching had caused confusion. National Mini Storage had not raised any The courts in these cases were said to concerns about National Storage’s name. Kate Duckworth is an intellectual prop- have intervened where a name had been National Storage was materially prejudiced erty lawyer with over 15 years’ experi- appropriated by a rival that had acquired by the passivity over its name because it ence in intellectual property law. She can the name, or words very close to it, for had commenced business in New Zealand be contacted at  www.kateduckworth. Google advertising purposes: without any awareness that it might need co.nz or  [email protected]. • In Intercity Group (NZ) Ltd v Nakedbus NZ Ltd [2014] NZHC 124 the defendant used the word “intercity” on its website and targeted “inter city” and similar Grant Allan llb keywords as part of a Google AdWords MEDIATOR (LEADR Advanced Panel) campaign when the plaintiff ’s name was “Intercity”; · Over 500 lawyer referred mediations • In Victoria Plum Ltd v Victorian Plumbing · No charge for travel costs or time to Ltd [2016] EWHC 2911 (Ch), [2017] Bus LR mediations anywhere in NZ 363 the defendant changed marketing tactics and began targeting keywords WWW.GRANTALLAN.CO.NZ such as “Victoria Plumb” that were  0800 400 411  [email protected] clearly associated with the plaintiff; and

31 TE AO MĀ ORI · UPDATE May 2018 · LAWTALK 917

UPDATE TE AO MĀ ORI Questions over ‘manaakitanga’ in the Hauraki Gulf: Ngāi Tai ki Tāmaki v Minister of Conservation

BY CHARLOTTE DOYLE AND SALLY MCKECHNIE

the Conservation Act 1987 and the Both the High Court and the Court The motu (islands) of Rangitoto and Motutapu sit Hauraki Gulf Marine Park Act 2000 of Appeal held that a definitive in the middle of the Hauraki Gulf in Tāmaki Makaurau (HGMP Act) as the decisions failed determination of rangatiratanga (Auckland). Highly popular destinations for visitors and to recognise the iwi’s rangatiratanga was not part of the Director- locals, the islands are iconic parts of the city’s landscape. over the islands, and what the iwi General’s statutory authority. It was They are also historically and spiritually important to said was an exclusive right to the the wrong forum for such a decision Ngāi Tai ki Tāmaki, tangata whenua to the motu. concessions. and, as the Court of Appeal noted, These islands form the backdrop to the recent deci- Both these Acts make express ref- rangatiratanga over the motu is still sion by the Court of Appeal in Ngāi Tai ki Tāmaki Tribal erence to Māori concepts and inter- in contention with other iwi. Trust v Minister of Conservation [2017] NZCA 613. While ests. The Conservation Act requires the iwi were unsuccessful in their claim, the decision the consideration by the decision Tangata whenua and of the court delivered by Justice Kós is notable for its maker of the principles of the Treaty mana whenua discussion of Te Ao Māori concepts and, in particular, of Waitangi. A core purpose of the There was no such reluctance about manaakitanga. Such judicial discussions in the higher HGMP Act, amongst other things, is tangata whenua or mana whenua, courts are not common. to recognise the historic, traditional, however. In the Court of Appeal’s Leave to appeal to the Supreme Court has been cultural, and spiritual relationship of view, it was “plain” that Ngāi Tai sought. With the ground-breaking fiduciary findings by tangata whenua in the Hauraki Gulf were tangata whenua of the Hauraki the Supreme Court last year, in Proprietors of Wakatū with its islands. Ngāi Tai heavily Gulf. “Nor is there any doubt” that v Attorney-General [2017] NZSC 17, the approach of our relied on the protection of ‘tangata the iwi held mana whenua over the most senior court to arguments involving Te Ao Māori whenua’ interests in sections 7 and motu. The court referred to the Ngā concepts will be hotly anticipated, if leave is given. 8 of the HGMP Act as the basis for Mana Whenua o Tāmaki Makaurau its argument that the concessions Collective Redress Act 2014. Ngāi Tai Before the court: granted to third parties failed to ki Tāmaki are recognised by this Act guided tours and maintain and enhance their rela- as part of the Ngā Mana Whenua statutory concessions tionship with the motu. o Tāmaki Makaurau group and the This matter was before the court Both the High Court and Court of Collective Redress Act provides because Ngāi Tai ki Tāmaki Trust Appeal declined to grant the relief mechanisms to enable iwi and hapū sought judicial review of the sought by the iwi. The Court of to exercise mana whenua over the Director-General of Conservation’s Appeal rejected the argument that motu. decision to grant concessions to the the HGMP statutory protection The Court of Appeal made these Fullers Group Ltd and Motutapu amounted to an exclusive right statements as direct statements of Island Restoration Trust to renew for Ngāi Tai. It considered that the fact. Their legal substance is less guided tours on the islands. Each HGMP Act was intended to strike clear. concession was to last five years, a balance between the interests of Tangata whenua is referred to, pending a review of a new con- the general public in economic and but not defined, in the HGMP Act. servation management plan for environmental sustainability, as well It loosely refers to Māori in the motu in Tāmaki Makaurau and the as the interests of tangata whenua. Hauraki region, rather than to spe- resolution of the Ngāi Tai claims cific iwi. There is also no definition settlement with the Crown. Te Ao Māori of mana whenua in the Collective The iwi claimed that the conces- The decision is notable for its dis- Redress Act referred. sions were an unlawful exercise cussion of a number of Te Ao Māori There is a definition of of decision-making powers under concepts. ‘manawhenua’ (sic) in the

32 LAWTALK 917 · May 2018 UPDATE · TE AO MĀ ORI

Conservation Act, as being a “cus- Clarke. The Supreme Court’s finding protected’. The court does not define ‘manaakitanga’ itself tomary authority exercised by an that tikanga was a relevant consid- and so, it seems, adopts Ngāi Tai’s characterisation of iwi or hapū or individual in an eration in Takamore was highly the concept. What evidence was before the court about identified area”. This definition was significant. However, the decision what ‘manaakitanga’ is, and how it is exercised, is not not referred to by either the High has left considerable uncertainty clear from the judgment. In the specific circumstances Court or Court of Appeal. over how tikanga Māori might be of the HGMP Act, the Court of Appeal considered that There is no discussion of what recognised in other legal contexts. manaakitanga “may well be of significance” for a statutory the concept means for Ngāi Tai, decision-maker, but the customary concept could not be and other tangata whenua, in either Manaakitanga elevated above the statutory scheme to create a ‘veto’. judgment. In this case, Ngāi Tai are arguing for It may be that these terms are so something akin to a “hosting visitors” Where to from here? well understood in modern New tourism right – quite some distance This judgment raises more questions than it answers: Zealand that definitions are not from the traditional burial practices What is ‘manaakitanga”? Is it in some way “exclusive” required. However, not everyone under consideration in Takamore. (as could be implied from the judgment) and exercised agrees that this is the case. For Ngāi Tai argued that by being by one iwi over an area to the exclusion of other iwi? example, Ta Hirini Moko Mead in the tangata whenua, tikanga Māori con- Where there is no statutory scheme, what weight 2016 edition of Tikanga Māori Living ferred specific roles on them over the should manaakitanga have? by Māori Values devotes 14 pages to motu: manaakitanga (authority and In what context does manaakitanga require active explaining how mana whenua can responsibility to host and care for protection? What does that entail? rise and be recognised. visitors); and katiaki (guardianship). How is a responsible decisionmaker to approach these In its Wai 64 Report, the Waitangi By holding manaakitanga over the comments? Tribunal expressed disapproval of motu, Ngāi Tai argued that they had While judicial recognition and concern to consider and the use of mana whenua, being con- a customary right of responsibility apply Te Aro Māori concepts is to be applauded, there cerned that it implies that one group for introducing visitors to ancestral is a need for caution. The decisions should be based on can speak exclusively for all. In this lands. The active protection of this careful discussion, informed by robust evidence about judicial review, only one other iwi right should attract commercial the concepts’ meaning and scope. The courts cannot provided evidence, despite 13 iwi returns for the iwi, to the exclusion assume that there is a shared meaning of these concepts and hapū in Tāmaki Makaurau being of others. In this argument, the iwi within Māoridom, available to be absorbed into the recognised to have mana whenua by relied on the Whales Case (Ngāi Tahu common law and reflected in the statute book. the Collective Redress Act. Māori Trust Board v Director General of Rigour must be adopted by our courts, otherwise Nor is this purely an academic Conservation [1995] 3 NZLR 553 (CA)). the legal status and weight of Te Ao debate. The Court of Appeal notes While the Court of Appeal was Māori and tikanga will continue to be that there is “certainly authority as not persuaded, ‘manaakitanga’ speculative. It will be fascinating to to the enforceability of principles of was discussed at some length in see what the Supreme Court makes tikanga” and it is likely that they will its decision. In our research, we of this, should it grant leave. ▪ feature more and more in arguments have found no other discussions before the courts. The thinness of the of this concept at Court of Appeal Charlotte Doyle  charlotte. precedents is notable however – of or Supreme Court level. [email protected] the three decisions cited by the Court Here, albeit in obiter, the Court is a solicitor based in Simpson of Appeal, two date from the early of Appeal appears to indicate that Grierson's Wellington office. Sally 1900s and the third is the Supreme ‘manaakitanga’ forms an important McKechnie is a partner at Simpson Court’s 2012 decision in Takamore v aspect of Treaty rights to be ‘actively Grierson.

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34 LAWTALK 917 · May 2018 CHANGING OUR CULTURE

CHANGING OUR CULTURE Update

Fonterra legal team action on Group policies (outlined above) bullying and harassment which apply to all employees here in New Zealand and across our global Andrew Cordner is Director of Legal at Fonterra business. Co-operative Group Ltd, the New Zealand company with Letter to the Editor: the biggest profit.LawTalk posed several questions to Has the Fonterra legal team Anti-harassment him about the workplace environment for its legal team. taken any specific measures policies recently to address the Does Fonterra have a policy and process issue of harassment and I read with interest your recent in place which addresses any form of bullying in the workplace? articles regarding bullying in the harassment and bullying in the workplace? The avenues for support (outlined profession and was interested to see We have bullying and harassment policies and other above) are available to the legal the responses from the larger firms. core elements in place which make it clear that we do team as they are for all Fonterra I work in one of the large firms, and not tolerate bullying or harassment of any kind (sexual, employees. one that has been quoted in LawTalk verbal or physical) within our Co-operative. These include: As a legal team, we have talked as having had anti-harassment pol- • Specific bullying and harassment policies which about the various allegations in the icies for many years. Yet, during the state that such behaviours are not tolerated in our New Zealand media and our response time I have worked at this firm, I workplace and provides avenues for employees and and engagement with our key New have seen at least one partner be the managers to seek support. Zealand external legal advisors on subject of multiple personal griev- • The Way We Work Code of Business Conduct which these issues. We have been in contact ance claims/allegations regarding outlines expected behaviour and conduct, and trans- with these advisors to convey our bullying and/or harassment. Given lates our commitments into actions that guide our position on harassment and make the recurring nature of these claims, daily activities as indicated in our Group Policies. it clear that the sexual harassment it therefore seems that no action has • Our Company Values which articulate how we act and other misconduct by law firm been taken by the firm to address and behave and which are underpinned by expected partners and/or staff that have been the underlying behaviour. behaviours that bring them to life. Our values include reported in the media are completely In my experience anti-bullying the value “Do What’s right – treat others as I would unacceptable. They have reassured policies work fine in law firms, expect to be treated”. us they have taken measures to except where it is a partner whose • A Diversity and Inclusion policy which outlines our prevent harassment, including re-af- behaviour is in question. In such commitment to building an inclusive culture where firming with all of their people their cases, firms do not seem to follow people feel valued, respected and encouraged to fully anti-harassment policies, expected their policies, but rather seek to contribute in a safe and supportive environment. standards of behaviour, and support protect the partner at the expense We recognise that bullying and harassment impacts channels available, talking to all staff of any staff involved, particularly many organisations globally and therefore, in addition to reiterate that any form of harass- where the partner is a high fee to our policies, we have a number of avenues to support ment is unacceptable and will not be earner. This is no doubt due to the our people including: tolerated, making sure all employees natural conflict of interest that • The Way We Work Hotline: A confidential channel are aware of the process for reporting HR staff have as employees of the (operated by an external provider) for employees and harassment, and ensuring staff feel very same partners who may be managers to raise any concerns. free to do so without fear of retalia- the perpetrators of the behaviour. • Health and engagement: A focus on building manager tion or reprisal. It is only where issues are raised capability, high performing teams, and an engaged in the media that there seem to be workforce to create an inclusive environment. Do you have any other any consequences for the partners • Targeted support for individuals and teams includ- comments on harassment and themselves. ing awareness campaigns, bullying and harassment bullying in the workplace? The inherent conflict of interest training, and EAP (employee assistance programme) We completely support the reviews, and double standards of the HR counselling services. initiatives and other work being departments in such firms should undertaken by New Zealand law in my view be highlighted in your Does the Fonterra legal team have any specific firms, the New Zealand Law Society articles, as until staff wellbeing is policies addressing harassment and bullying in and the wider legal profession to more important than partnership addition to those for the whole organisation? address these issues in the legal profits, nothing will change. Our legal team operates in accordance with Fonterra’s profession. [Name withheld by agreement]

35 Keeping Track: Update on Law Society developments

0800 Law Care phone line: A new 0800 phone line to consider whether the existing Dunedin and included women went live on 3 April for people in the legal community regulatory framework, practices and lawyer groups, young lawyers to discuss sensitive matters such as workplace harass- processes enable adequate report- and law student representatives. ment and the options and support they can access. The ing of harassment or inappropriate The meetings proved an excellent Law Care line (0800 0800 28) is staffed by five specially workplace behaviour within the forum for sharing information on trained Law Society employees. It will initially operate legal profession, along with how what is being done, along with ideas between 9:00 am and 7:30 pm from Monday to Thursday, better support can be provided to and suggestions for future action. and from 9:00 am to 5:00 pm on Fridays. The operators those making reports of sensitive The Law Society plans to build on are able to provide callers with options about the services issues, and the adequacy of the the relationships which have been they can seek support from. regulatory framework to enable developed to form a national com- Online reporting facility: A new facility on the Law effective action to be taken where mittee to take the various streams Society website allows lawyers to submit confidential such conduct is alleged. of work forward and maintain reports of harassment and other unacceptable behaviour. Online resources released: momentum. Available since 3 April, the online facility allows lawyers During April the Law Society National Friends Panel: The to obtain information to assist in determining whether released a range of online and names of a number of lawyers who they should submit a report, which can now be done other resources as part of its actions are available to discuss sensitive online and can be submitted anonymously. against bullying and harassment in matters such as workplace harass- National workplace environment survey: A survey the legal profession. The resources ment have been highlighted in the to gather information on workplace environments in can be accessed from a new sec- national Friends Panel List on the the legal profession was sent to all New Zealand-based tion on the Law Society website, Law Society website. Contact details practising lawyers on 5 April. The Law Society has com- "Bullying and harassment in the and the location of the lawyers are missioned research firm Colmar Brunton to carry out the legal profession". As well as links shown. survey, which aims to generate some robust research to the 0800 Law Care phone service New national standards com- into the behaviours lawyers have experienced in their and the online form for reporting mittee: The Law Society Board workplaces. The survey is completely confidential and unacceptable conduct, they include has approved the formation of a closed on 30 April. Colmar Brunton is now analysing practical guidance and information dedicated national lawyers stand- the results. on prevention of bullying and har- ards committee to deal specifically Regulatory working group: Chaired by Dame Silvia assment and a Word template for with complaints of harassment and Cartwright, the other four members of the working development of a sexual harass- bullying in the legal profession. group were announced on 19 April. Philip Hamlin ment policy and guidelines. Harassment webinar: A free is an Auckland barrister, Joy Liddicoat is Assistant National interest group meet- NZLS CLE Ltd webinar on pre- Commissioner (Policy and Operations) at the Office ings: A series of meetings with venting bullying and harassment of the Privacy Commissioner, Elisabeth McDonald is a representatives of a number of key in the workplace was delivered Professor of Law at the University of Canterbury and interest groups were organised by to over 2,000 lawyers on 4 April. Jane Drumm is General Manager of Shine. The working the Law Society during April. These The webinar is available on the group’s terms of reference have been viewed by Justice were held in Auckland, Hamilton, NZLS CLE Ltd website and may Minister Andrew Little. The working group is required Wellington, Christchurch and be viewed online.

36 CHANGING OUR CULTURE

Keeping Track: Some measures at 13 April 2018

New Zealand-based lawyers: 13,258 Women: 6669 (50.3%) Men: 6589 (49.7%) Lawyers in multi-lawyer firms: 7770 Partners and directors: 2870 Women partners & directors: 898 (31.3%) Men partners & directors: 1972 (68.7%) Employed lawyers: 4900 Women employees: 3003 (61.3%) Male employees: 1897 (38.7%) In-house lawyers: 2954 Responsibility rests with Women in-house: 1820 (61.6%) whole legal profession Men in-house: 1057 (38.4%)

All members of the legal profession need to take New Zealand Judiciary (permanent): responsibility for fostering a professional culture where Court Women Men % Women % Men harassment of any kind is unacceptable, the President of the Otago branch of the New Zealand Law Society, Supreme 3 2 60% 40% John Farrow, says. Appeal 2 8 20% 80% Writing in the April issue of the branch’s newsletter High (incl 16 31 34% 66% Cur Adv Vult, Mr Farrow says the Otago Women Lawyers Associate) Society (OWLS) recently issued a statement condemning District 52 107 33% 67% sexual harassment. “OWLS wishes to promote the legal profession to Environment 2 7 22% 78% women as a valued and worthwhile career choice and Māori Land 3 7 30% 70% it aims to work with all members of the legal profession Employment 2 3 40% 60% to ensure that an appropriate and respectful culture Total 80 165 33% 67% prevails in every workplace for lawyers,” he says. “I believe those sentiments are shared by the vast *Note that the District Court website states that majority of our profession, whether female or male. the judges listed are current as at 27 November However, I believe that, as men, we do need to be more 2017. Five non-sitting full-time judges such as the visible and outspoken on such issues in support of our Children’s Commissioner are included in the total. female colleagues.” Mr Farrow says harassment of Signatories to Gender Equality Charter: 4 any kind often involves a power Signatories to Gender Equitable Engagement and imbalance and with that the risk Instruction Policy: 17 clients, 16 supporting law firms, of career damage. barristers chambers and lawyers. “It can be extremely difficult for many practitioners to identify who they may confide in for support, advice and guidance in addressing QUEENSLAND AGENCY WORK and reporting behaviour of concern. “This is an issue that impacts on Situated on Queensland’s Gold Coast, we have over 40 years’ experience advising clients throughout us all and threatens the integrity of Queensland. Two of our solicitors have practised in New our profession. I think we all need Zealand and we have many New Zealand clients. to take responsibility for fostering a All types of agency work accepted: www.gsslaw.com email: [email protected] professional culture where harass- • Estate Administration (including resealing of Probate) phone: +61 7 5532 5944 ment of any kind is unacceptable. • Conveyancing, settlements, property searches Australian Member of This includes encouraging and • Family Law International Lawyers Group incentivising the reporting of such • Commercial law, commercial litigation, debt recovery (www.ilgonline.org) behaviour.”

37 CHANGING OUR CULTURE May 2018 · LAWTALK 917

Policies and procedures at Ministry of Justice

LawTalk asked the Ministry of standards of professional behav- professional conduct and how Justice for comments on the policies iour, and neither bullying nor har- we investigate instances that do and procedures it follows to prevent assment by anyone, or in any form, not meet accepted standards of workplace harassment and bullying are acceptable. It is not acceptable conduct. in the workplace. The response from from a manager or colleague, and Building a culture where the the Secretary for Justice, Andrew it is not acceptable from anyone ministry is a great place to work Bridgman, is as follows: else our people interact with in the is an ongoing process and we By the nature of its work, the justice sector every day. know there is much more we Ministry of Justice is one of the The key to addressing workplace need to do. We want the min- largest employers of lawyers in the bullying and harassment, however, istry to be a place where our public service. is having a culture where it isn’t people can be healthy and safe, trusted, supported, In addition to the more than accepted in the first place, and when involved, and themselves. 150 lawyers working in the Public it does occur, those experiencing it To build that supportive and trusting culture, we’ve a Defence Service – New Zealand’s feel confident to come forward and range of initiatives that go beyond addressing bullying or largest criminal law practice – we make a formal complaint. If some- harassment. They include, but are not limited to, train- have lawyers working in our Office one doesn’t feel they’ll be supported, ing and support to address family violence and mental of Legal Counsel as well in a range or trust that we will investigate their health, as well as encouraging professional development, of policy and registry roles. complaint, then they won’t come and recognising those who achieve. Under-pinned by our values forward. of respect, integrity, service and It is within that context that Andrew Bridgman excellence, the ministry expects our policies and procedures sit. Secretary for Justice and Chief Executive of the Ministry everyone to demonstrate high They outline our expectations of of Justice.

38 LAWTALK 917 · May 2018 CHANGING OUR CULTURE

CHANGING OUR CULTURE A law student perspective: how the future should look

BY NICK BUTCHER

“A lot of law firms want to put our names on them as a student, but we also need to feel that we can put our names on them as a firm.”

embroiled in a public image crisis. problem and new law students 2018 has so far seen the legal profession saturated They discussed the current sexual who’ll graduate in five years’ time in allegations of sexual harassment, assault and bullying harassment allegations atmos- should feel confident that things will occurring in some legal workplaces. phere of the legal profession, and be different,” says Indiana Shewen. It has resulted in Russell McVeagh, the firm at the also equality in the workplace for “I think what has come out centre of the first claims in February, committing to an women and men and whether the through the media has brought a external review of its culture and policies as they relate Law Society’s recently-launched lot more attention to the issues but to sexual harassment. Gender Equality Charter could fix it’s not material that a lot of people The allegations related to sexual harassment and that separate issue. have not already been unaware of. assault complaints made by some final year Victoria Bethany Paterson, Fletcher What is good is the support we University law students who worked on that firm’s Boswell and Indiana Shewen are all are getting from all facets of New summer clerk programme in 2015/16. on the cusp of completing their legal Zealand society, not just in the The fallout has led to former lawyers coming forward studies. They’re young, ambitious legal profession. People are still with their experiences, and other law firms scrutinised, and yet despite sexual harassment optimistic. There’s lots of reasons to showing that harassment and bullying have been a dark issues blighting the legal profession, be optimistic in terms of where the underbelly of the profession for a long time, and not they’re confident that things will culture is moving, because law firms unique to just one workplace. come right. are having the conversation as the In March hundreds of students from Victoria The students say they were all issues are at the forefront of people’s University’s Faculty of Law with other supporting stu- aware of the stories that were encir- minds,” says Fletcher Boswell. dents took their anger to the streets of the capital to a cling Russell McVeagh’s summer “But it has taken us two years to focal point at Wellington’s Lambton Quay, Midland Park. clerk programme of two years ago, get this point at all and start this con- It was aptly named the ‘March on Midland’. The well before they were revealed by versation. Some of these issues were Wellington office of Russell McVeagh is on the 24th floor the news media. raised with the Law Society before of the high rise building overlooking the park. The sexual harassment allega- now, but it is great that we can have The demonstration included banners with words such tions, including the testimony of an open and honest discussion about as ‘Zero Tolerance’, ‘#US TOO’ and one directed at the other former female lawyers that it now,” says Bethany Paterson. regulator which said ‘Law Society Do Your Job’, which has come out in the media, made could not be ignored. it sound almost like new lawyers Is all of the work being Their message, delivered under the low sun of a could be heading into a potential done to address these stunning autumn day, was how the future of the legal combat zone, given the description issues enough? profession should be. It could not have been any clearer. of some workplace cultures. LawTalk asked the law students No one was being left out of this legal equation. “Most people that have studied what their expectations were law to be lawyers still want to go into of the Law Society’s regulatory The view from law school the profession. There were already a working group. This included such LawTalk sat down with three Victoria University law stu- lot of rumours about what has come as whether the Chair, Dame Silvia dents who will graduate at the end of this year. They’re out. Now we can start addressing Cartwright, might go so far as to sug- all eager to practise law, despite the profession being it and ripping out the root of the gest the regulatory framework may

39 CHANGING OUR CULTURE May 2018 · LAWTALK 917

need to be reviewed to enable better that look like? We should be able area of law they want to practise in. reporting of sexual harassment and to have an open conversation with “I think the situation the law profession is dealing related behaviour. law firms about our expectations, with is a great opportunity for a lot of firms, even those “I think we should be looking at that would be a good starting point,” that aren’t implicated in any of these incidents to look at big changes. With an issue where she says. their processes and asking questions as to how they can we are talking about sexual assault, Searching for that first job in law better deal with these sorts of incidents better and how for example, it justifies a response in isn’t far away for these students. But can we make sure our employees are all safe,” he says. proportion. Perhaps greater enforce- what should you be looking for? Is LawTalk asked the students to picture themselves ment of the rules that are already in it a position in one of the most high as a law graduate looking for that first job and having place,” Ms Paterson says. profile law firms or the lesser known gained that vital interview, where they are also invited Mr Boswell says while the appro- businesses? to ask their potential employer questions. priate laws need to be in place, they Do you ask what sort of policies the firm has that also need to be followed. Does it come down address sexual harassment and bullying in the workplace? “It’s really important that if these to your definition “An interview situation is a social setting that is man- incidents occur in the workplace, of success? dated by politeness and it would still come across as there is a positive obligation on law “For me, it’s a balance between find- perhaps rude or presumptuous by saying something as firms, partners and other senior ing a firm that matches your interests you’re questioning the integrity of staff. It’s as if you’re members of the profession to come and intellectually challenges you. It pre-empting that there might be a risk at that firm which forward to the Law Society with should also match your values, the questions their culture and integrity. The obligation these issues. It’s a shared responsibil- culture you want to be going into should not be on the student to ask these questions,” ity between the Law Society and the and the sort of people you want to Bethany Paterson says. firm, because once the Law Society be working with,” Ms Paterson says. Fletcher Boswell agrees. is aware of it, they have an obliga- It was a mix of those consider- “I think organisations such as the student association tion to protect the more vulnerable ations that led to Indiana Shewen and the Law Students Society should be taking leader- members of the profession,” he says. taking on a summer clerk position ship. I don’t think the obligation should be on students When talking about a cultural at Kahui Legal in Wellington. to ask this of a potential employer. We need to be having change in the law profession, dim- “I knew I wanted to work with those conversations and have the information provided ming down that lit-up perception Māori law but it was also about the to students before the interview process. It’s a weight of working hard and playing hard people and the support networks. that needs to be taken off the students' shoulders,” Mr is surely part of the solution? But looking at the student body, gen- Boswell says. The students say that just because erally there is this bizarre measure Last month LawTalk featured a large story about some more senior members of a law of success in terms of working at big changing the culture of the profession which included firm may not have taken part in firms. Once you get to your fifth year a thorough look at whether workplaces where law is some of the social activities where at university, you realise that is less practised had current policies that questionable behaviour occurred, of a priority and move more towards manage sexual harassment and turning a blind eye to rumours of a value based decision,” she says. bullying complaints. Many did have what other law firm colleagues policies but many also didn’t and may have been involved in, isn’t Finding a firm with both one response that still resonates is an acceptable reaction. the right culture and that policies are only as good as the “That’s all part of the culture intellectual stimulation culture that nurtures them. change that we’re talking about. Fletcher Boswell is still to decide “If there is a policy, it needs to When you look at all the issues, it where his future in law will be. He be one that is used and one that all would be easy to say, ‘changing a had the opportunity to work in cor- employees know about. You need culture, how the hell do you achieve porate finance during the summer, to know what your rights are, how that?’ It’s about taking it piece by where he enjoyed utilising his law you can be expected to be treated if piece, such as what should the skills. you are a victim of harassment, and bystanders be doing, the partners, He says a lot of people are looking if you are a perpetrator, you should and what should the Law Society for what can be ‘two conflicting know what the consequences of be doing? Knowing what everyone’s forces’, such as finding a good cul- your behaviour is and that these obligations are,” says Bethany ture with values that you can relate consequences will happen,” Ms Paterson. to and at the same time intellectual Paterson says. Indiana Shewen says law stu- stimulation at the firm. The students all say the policies dents need to be aware of what to “But those two things are not are important but too often provide expect from a law firm they might mutually exclusive. I think a firm an ambulance at the bottom of the do some work at. that students want to work at is one cliff as opposed to providing a fence “From a student’s perspective, that is able to foster a culture which at the top to stop the fall from occur- we have to ensure that they will be allows employees to excel and feel ring in the first place. treated with respect and what does challenged in, regardless of what But even with clear policies in

40 LAWTALK 917 · May 2018

place, there’s still no guarantee that everything will be plain sailing at any firm or workplace. Ms Paterson says there are other strategies that graduating law students can undertake so to get a better idea of the supposed culture at a workplace. “As a practical step, they could ask people who work at a firm what it’s like to do so there. Just accepting that the business has a policy or reading great things about a firm on their website won’t necessarily answer all of your questions,” she says. A lawyer whose story has been told through the media, Olivia Wensley, left the law after suffer- ing what she described as years of sexual innuendos and inappropriate behaviour from male colleagues. The Victoria University stu- dents say that despite the current problems that are damaging the ◂

reputation of the profession, they’ve not heard of anyone thinking, even moving away from generation is comfortable speaking  in the final year of their degree deciding to do something calling the profession, the legal out and it will inevitably lead to Morton Siebuhr else rather than practise law. fraternity. I think we are lucky to significant changes in the power “I’m reminded of what employment lawyer Steph have a woman Prime Minister who structure throughout the law Dyhrberg said in her speech at the March on Midland. is pregnant, so we are able to be profession. “She encouraged all law students to keep going and idealistic in relation to what we “They’re much more confident

to not let this take away their passion to work in the want our work environment to be and with the accessibility of the bn legal profession,” says Indiana Shewen. like,” says Indiana Shewen. media, that makes it easier to raise “I think having some kind of awareness around these issues, Equality, the other big issue framework is really important for so we are fortunate in that sense. affecting the legal profession any organisation when they’re But it’s an intergenerational issue, While sexual harassment and bullying are major issues trying to improve the processes so when you have conversations being tackled by the law profession, it would be unwise they have in place. I think if firms with different people about how to divert attention from another problem, equality in are enthusiastic about signing up they see the roots of the problem, it the workplace. to that sort of framework, it’s really changes based on what decade you The primary purpose of the Law Society’s Gender positive from an employee’s point are speaking to. The most important Equality Charter, which was released to the profession of view,” Mr Boswell says. thing we can do from our perspec- on 12 April, is to improve the retention and advancement “Women aren’t advancing through tive is to keep engaging people in of women in the legal profession. merit at the same rate as men. It’s not these conversations,” he says. It’s a fact that despite women making up over half a matter of they (women) don’t have Ms Shewen says the Gender of the 13,000-plus practising lawyers in the country, merit so we’ll advance them prefer- Equality Charter empowers women the numbers of women in positions of power such as entially. It’s obvious that there has to succeed. partners, directors or Queen’s Counsel do not reflect been a subconscious bias towards “For example with equal pay and that achievement at all. men which is evident from the per- pay audits. They (women) should be Sixty percent of all law school graduates across the centages we see in relation to the able to talk to the law firm partners. country are women. higher ranks of the legal profession. It puts you in a position to hold So what do these law students make of the Gender It’s crazy to contemplate that women firms accountable by saying, you’re Equality Charter and is it something they would hope to don’t make up 50% of partnerships a signatory to the Gender Equality see as part of a range of policies law firms might employ? in law firms,” says Bethany Paterson. Charter, why aren’t you meeting this “Coming from a student perspective, the majority of commitment? Students are more law students are women, and yet if you look at these What more could inclined to bring these issues up issues, it’s very much a glass ceiling for women. It be done to bring and over time, that will result in would be great to have structures like this [the charter] about equality? changes throughout the profession,” in place. It’s about moving away from an old way of Fletcher Boswell says their she says. ▪

41 CHANGING OUR CULTURE May 2018 · LAWTALK 917

CHANGING OUR CULTURE Gender Equality Charter launched

BY NICK BUTCHER

The New Zealand Law Society’s voluntary Gender Equality Charter was successfully released to the legal profession on 12 April in the Grand Hall of Parliament.

I said it when I graduated back in 1990. And women have been Many of New Zealand’s most prominent women lawyers entering the profession in equal numbers to men since the early were at the function, including Chief Justice Dame Sian Elias, 1990s,” she said. Solicitor-General Una Jagose QC, and former Governor-General Ms Feint said the Women in Law Committee supports the char- Dame Silvia Cartwright. ter but does not want to see it gathering dust, and she issued a Dame Silvia is also the Chair of the regulatory working group challenge to men in the profession to step up, as without their that is looking into the processes for reporting and taking action help things will not change. on harassment and inappropriate behaviour in legal workplaces. “We want to see that [the Charter] is monitored, that there is The Gender Equality Charter’s primary objective is to contrib- active progress and that the profession is held to account.” ute to building a profession with a more even distribution of power between women and men. Currently that is not the case, Minister for Women with men overwhelmingly outnumbering women at the top in The Minister for Women, Julie Anne Genter, addressed the audience positions such as partnership, directorship and Queen’s Counsel. with a reminder that this year is also a celebration of 125 years The only area where women are in the majority is as Judges of of women’s suffrage. the Supreme Court. The Minister quipped that it was great to see so many men in The change in culture is long overdue as the audience because at most of her speaking engagements as women have been progressively heading Minister, there are usually few to be seen. towards becoming the biggest players in “I hope that firms will be lining up to sign up to this charter,” the legal profession for about 20 years and she says. have outnumbered men since January Ms Genter also acknowledged that it had been a challenging 2018. year for the legal profession with the serious allegations of sexual However, women currently make up just harassment and bullying in law. 31% of partners and directors in law firms She also commented on the low representation of women in with more than one practitioner. senior legal positions throughout the profession, and while the Karen Feint, who is Co-Convenor of the Charter does not deal with harassment, Ms Genter says it could Law Society’s Wellington branch Women assist that battle too. in Law Committee, told the audience of “I understand that your evidence [the Law Society’s] shows that a committee function last year in which harassment is more prevalent in workplaces where men dominate MP Jan Logie was speaking about various management and women have less power. It would be fantastic if issues she was involved with work on. there was no need for [the Gender Equality Charter] to be voluntary. “We were standing around talking I look forward seeing more women achieving their potential in a afterwards and Jan Logie said to us that safe working environment,” she said. she had heard that women were having some problems in the legal profession, What the Charter requires and someone else said to Jan Logie ‘but The Charter, developed by the Law Society’s Women’s Advisory it’s all going to change because there are Panel, is a set of commitments aimed at improving the retention now more women than men entering and advancement of women lawyers. Charter signatories are asked the law profession’. When she said that to meet these commitments over a two-year period and report on I literally sank because I can remember progress to the Law Society. Commitments include: saying exactly the same thing, except that • Implement unconscious bias training for all lawyers and key staff.

42 ▴ (From left): Chris Moore, Immediate Past-President of the New Zealand Law Society and Chair of the Women's Advisory Panel; Kathryn Beck, President of the New Zealand Law Society; Karen Feint, Co-convenor of the New Zealand Law Society Wellington branch Women in Law committee; Una Jagose, Solicitor-General; Julie Anne Genter, Minister for Women; Margaret Wilson, former Speaker of the House of Representatives; Dame Silvia Cartwright, former Governor-General; Chief Justice Dame Sian Elias; Justice Christine Grice, High Court judge, former New Zealand Law Society President and Executive Director.

• Conduct annual gender pay audits and counterparts, they make up a much lower percentage of leaders take action to close any gender pay gap. in our profession,” she said. • Encourage and support flexible working Ms Beck went on to say that women in law need assurance that for all lawyers. a bright future lies ahead for both young talented women and the • Actively work to increase gender equal- more experienced women who practise law. ity and inclusion in senior legal roles. “If we lose them, we all lose. This Charter is a forward-looking The Charter, guidelines to help signato- tool that focuses on positive steps that can be taken to retain and ries and free online tools and resources advance women lawyers. The Charter is about three important are on the Law Society’s website, with a goals including leadership from the top, making a plan and taking link directly from the home page at www. action and measuring progress. We all need to be accountable lawsociety.org.nz. for this.” The President of the Law Society, Chris Moore is the immediate past President of the New Zealand Kathryn Beck, told the audience that equal Law Society and chair of the Women’s Advisory Panel. numbers of women and men practising in “The Charter is for all of the legal profession from sole prac- the profession is not enough, as there is a titioners – including barristers – smaller law firms, barristers’ serious power imbalance. chambers, and large law firms, to in-house legal teams,” he said. “The current figures reinforce how Mr Moore said people need to become signatories to the Charter important it is that we address the issue of for genuine reasons. equity, retention and promotion of women “Don’t sign up if you think this is a good marketing opportunity. in the legal profession. Our talent pipeline This is not a tick box compliance exercise. At its heart, this charter is leaking and many of our brightest and is about improving the culture of our profession. Sign up because best women are not staying in the profes- you want to make a real difference, sign up because you want to sion and insufficient numbers of those who be part of the community leading the way to improving gender do stay advance to the senior ranks. While equality and inclusion in the legal profession, sign up so that you we have an environment where women can pass the baton to the next generation of lawyers knowing are graduating from our law schools in that you’ve made a vital contribution to the success and the much larger numbers than our male sustainability of this profession,” he said. ▪

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44 LAWTALK 917 · May 2018 CHANGING OUR CULTURE

CHANGING OUR CULTURE

Bullying from the bench

BY GEOFF ADLAM

It’s nothing new. Some judges have reputations for behaviour which varies from stern to rude and offensive and which falls below the normal courtesy expected in any professional interaction.

that is superficially humorous, harassment or bullying behaviour. Bullying judges are identified calls out attorney misconduct in a When asked who was doing the and discussed whenever lawyers get written order or opinion” (Joseph bullying or harassment the most together. It’s been a hidden problem, P Matrosimone, “Benchslaps”, Utah common response was “a judge”, however. Fear of consequences and Law Review Vol 2017: No 2, 331-391, with 64.7% (165) of respondents. an enduring impact on a courtroom at 333). The blog has a regular Release of that finding drew an career sit alongside the lack of any “benchslap” feature, but to Professor immediate response from the judi- effective system for resolving situ- Matrosimone “the indecorous use ciary. In a statement Chief Justice ations of inappropriate behaviour of the judicial power to mock an Sian Elias said she expects all judges from judge to counsel. officer of the court in a written to deal with litigants, witnesses and Outside the profession, judicial order crosses into unprofessional counsel with respect and courtesy. bullying is often viewed tolerantly conduct”. “Bullying of counsel is not or even as amusing, with the ste- Things have changed. The #MeToo acceptable. This is made clear in reotype of a “cranky” but fair judge and Time's Up movements have torn the Guidelines for Judicial Conduct. pervasive. The popular US TV series the New Zealand legal profession If it is occurring I and the heads of Judge Judy appears to celebrate a open and exposed a widespread the bench want to know about it rude and aggressive judge who uses culture of harassment and bullying and we want to stop it,” she said. “If her position to bully and humili- within workplaces. It was while this proper standards are not observed, I ate the bewildered litigants who was being tested with a survey of encourage those who are affected or appear before her. It’s so successful criminal practitioners that the issue who have observed such behaviour that she’s paid $47 million a year of judicial bullying hit the headlines. to raise their concerns with the head apparently. Wellington barrister Elizabeth of bench or with me or to make a The Above the Law blog has popu- Hall’s survey drew 283 responses, complaint to the Independent larised the practice of “benchslaps” with 88.1% (255 respondents) having Judicial Conduct Commissioner.” – “where the judge, often in a way personally experienced or witnessed Her comments were followed by

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statements from the New Zealand Law Society and the New Zealand Bar Association, both of which offered support to practitioners who may have experienced any judicial harassment. “Any bullying behaviour by members of the judiciary is completely unacceptable,” said Law Society President Kathryn Beck. The survey results, the statements and the conse- quent publicity resulted in consultation and discussion between the judiciary and lawyers’ organisations. It now looks like a more formalised system is being developed. The Law Society’s national survey of all lawyers on workplace environments which closed on 30 April will also provide more detailed research on the extent of judicial bullying. The current situation While there is room for discussion about what exactly should be considered unacceptable judicial behaviour, it is clear that lawyers around the country believe they have experienced or observed bullying or inappropriate behaviour by a member of the judiciary towards counsel. It is also clear that it has sometimes had a devastating effect on the recipients. And it’s very apparent that there is a real concern about disclosure of identity. The views of over 30 members of the legal profession were obtained for this article and most wanted anonymity. This has been respected. This article also focuses on the legal profession. However, it is evident that abuse of judicial power towards clients and court staff also occurs. The use of the word “bullying” is emotive. “Bullying is aggressive behaviour that is intentional and that involves an imbalance of power or strength” (Kowalski, Limber and Agatston, Cyberbullying: Bullying in the Digital Age, 2nd by counsel “to the point that counsel is belittled and ed, Wiley, 2012) is a good working definition. Given the publicly embarrassed in front of the client, colleagues, power balance, it is hard for a lawyer in the very public the public and, in trials, the jury”. courtroom to respond to negative judicial behaviour. • “Insidious” behaviour in a hearing spread over a few “If [a judge] decides that they wish to be a bullying months where one lawyer was treated differently to narcissistic arsehole they are in the perfect position to the others with the judge adopting a derogatory tone do so, comforted in the knowledge that there will be no and snapping at the lawyer constantly. “There was consequence,” a practitioner with over 20 years’ expe- simply no apparent reason. I have heard this particular rience says. “As counsel you have no right of response judge has been like that with other lawyers too.” and no ability to obtain redress.” • “The judge continually berated me in Court. The initial Some examples of the types of judicial behaviour point he raised was valid, however he repeatedly reported by New Zealand lawyers which are seen as asked me about it – in an increasingly demeaning inappropriate or bullying: and condescending way – until I was in tears.” • Judges making detrimental comments in relation to • “As a general rule the behaviour has involved such practitioners in open court which call the integrity things as rude or boorish behaviour towards counsel, of the practitioner into question. talking over counsel when they are making what • Constant interruption of and “attacks” on counsel appear to be sensible submissions, taking points of during a trial. procedure with counsel they would not take with • Judges reacting adversely (including yelling) when other more senior or experienced counsel, or ‘toying practitioners don’t hear what they say. with’ either counsel or their clients.” • Judicial interference with the case being presented • “I have also experienced and witnessed sexism where

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“classic bullying” because no-one difference it made – but it was the is in a vulnerable position – “it’s bad experience that won out, and I behaviour which is seen as con- have pursued a legal career in areas fusing and unnecessary for the outside the courts since.” efficient administration of the Another senior lawyer believes court and that causes confusion some perspective is needed. “In my among lawyers, particularly experience – and I have practised among young lawyers”. in the courts for over 35 years – it • “I have witnessed rude and is only a small proportion of judges belittling behaviour frequently on who engage in this sort of behaviour. the part of certain judges. There If anything, the behaviour of judges is in my experience a tendency is more polite than when I first for certain Judges to target more started in practice. I think there are junior practitioners and give them counsel who come to court without a very hard time in what should the benefit of having had mentoring be run-of-the-mill appearances.” and guidance from senior counsel, and find it a shock to be criticised or Enduring impact to have their arguments questioned Judicial bullying can have an endur- in front of their clients and fellow ing impact. A solicitor recalls being practitioners. It may just be that I thrust into the deep end at a District have a thicker skin than some other Court to conduct a civil matter over practitioners.” 40 years ago. “I was mercilessly How much is it a matter of tol- bullied by a senior judge, which erance, experience, competence disturbed me so much that I decided and sensitivity on the part of the it was not an environment that I lawyer? Perceptions vary. Timaru- cared to be in and I elected not to based journalist Jock Anderson has pursue a legal career in the courts,” 50 years’ experience of covering he recalls. “The damage done by that the courts and legal profession at sort of behaviour, which seemed to all levels and in several centres. He be almost expected by other counsel says he can’t recall any occasion that I talked to, is now starting to which he would define as bullying judges will not ask female counsel see the light of day.” from a judge. for their views on a matter in a A South Island barrister says a “Lawyers certainly get a hard time criminal trial and as a woman number of criminal practitioners if they are late, ill-prepared, delay you have no right to even get the have left legal practice or left crim- proceedings or generally stuff about opportunity to speak on behalf of inal practice due to judicial conduct. wasting the court’s time. From what a client.” Bullying judges are, of course, I have seen, certainly in the higher • “It is usually rude comments, well balanced by those who are courts, the judges go out of their belittling the lawyers or their sub- courteous and helpful. There is way to ensure lawyers get their missions, patronising comments, a clear impression that trouble- points across, however futile or the tone and style of delivery in some judges are very much in the garbled they may be. speaking to counsel (and Police minority. The practitioner who had “I have seen judges get extremely and other parties). Of particular an unpleasant experience 40 years frustrated with lawyers – one concern is how they target the ago shortly afterwards ventured into Auckland High Court judge swept weaker lawyers.” another District Court and appeared out of court one day, muttering • “I have witnessed the most gra- before a judge who he describes as ‘Give me Strength’ and telling the tuitous, unprofessional, nasty, a “consummate gentleman” – “The squabbling lawyers to basically get belittling, sarcastic behaviour Judge seemed to recognise that their act together and stop wasting from a variety of judges over the I was ‘learning the ropes’ and time before he returned.” years.” offered some helpful advice here “Sometimes a lawyer has to be • One experienced prosecutor and there in a non-condescending told firmly, and to leave no doubt, says the behaviour he sees is not and non-belittling manner. What a that they have done something that

47 CHANGING OUR CULTURE May 2018 · LAWTALK 917

is clearly wrong and they need to should deal with these occasional take a telling off… That is not bully- trying situations. Similarly, there are ing, in my book…” other ways that judges can and do “Overall, from what I have seen unobtrusively address behaviours over the years, judges give lawyers of counsel without embarrassing a fair go and only pick them up them in the courtroom.” when it is absolutely necessary in However it is defined, there is, the interests of justice and a fair however, a strong consensus among hearing.” the legal profession that judicial Graeme Colgan was a Judge of the What bullying is alive and well and Employment Court and its prede- constitutes experienced around New Zealand. cessor, the Labour Court, for over 28 bullying or Unacceptable behaviour has been years. He was Chief Judge from 2005 harassment reported from judges of all ages and until his retirement in July 2017. He or indeed genders. A prosecutor with many now practises as a barrister. any other years’ experience believes one of the “What constitutes bullying or unjudicial key causes of inappropriate judicial harassment or indeed any other behaviour behaviour is pressure from Ministry unjudicial behaviour is largely is largely of Justice schedules: “The judges undefined and even to the extent undefined are not masters and mistresses it is, is intensely subjective,” he and even to of their time any more – there says. “All we have to go on, so far, the extent it are enormous pressures and their are the subjective views of some is, is intensely performance is being measured by practitioners taken from an anon- subjective some faceless functionary in the ymous survey. I await with interest Justice Department.” an objective examination of estab- “I think it is a major problem,” lished cases. That is not to say there says a South Island lawyer. “In our has not been unethical behaviour by centre it is a large factor behind the judges towards counsel, but rather justified, but judges must be able shortage in criminal lawyers and the that to begin to address issues, to retain and maintain control of lack of progression of lawyers.” better knowledge of the problem proceedings, including by giving “Now that we are open about is needed.” directions as to their conduct that the stress of law, the difficulties in may sometimes be unwelcome. retaining young lawyers, depression, Restraints “By the same token, the calm, civil, etc, we should direct our attention Mr Colgan feels that the existence reasoned but firm manner in which at all causes of it. Having a patient, and availability of judicial complaint these are delivered will ensure that courteous judge – for those first few mechanisms and of greater audio they cannot fairly be categorised as court appearances in particular – recording of in-court proceedings bullying or harassment or otherwise can make the world of difference to has led to more restraint on those as judicial misconduct.” a young practitioner. I was fortunate “hopefully few” judges who might Drawing on his long experience as to have that experience myself but be tempted to misuse their positions a judge, Mr Colgan says a few coun- watched others who did not fare as and powers. sel can sorely try a judge’s patience, well,” says University of Otago law “I was and remain a strong tolerance and good humour “usually lecturer Mary Foley. advocate of universal recording in an unavailing attempt to impress Dr Foley, who lectures in legal of all exchanges between counsel a client or others in the public gal- ethics, says ‘bullying’ is a word that and judges, not only in courtrooms lery by petulant behaviour, talking many people don’t think captures but in the increasing prevalence of over the judge or similarly exhibit- rudeness, belittling behaviour and telephone or video directions, con- ing disrespect for the court.” incivility. ferences and interlocutory hearings. “But in my experience, ignor- “Perhaps that is why so many Doing so both leavens behaviours ing such behaviours rather than never speak up. However we define – including those of counsel – and attempting to engage, match them it, the way judges treat practitioners, provides a valuable record in the and escalating the tension, and other especially our young ones, has a event of any subsequent complaint.” responses that judges can be taught lasting impact,” she says. He says judicial bullying is not even if these do not come naturally, “I understand we have to respect

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the institution, but that institution is made up of people. reasonably reflective of the Criminal Bar Association’s Some of the behaviour may not amount to bullying in information,” says Judicial Conduct Commissioner Alan the accepted sense – sustained, over a period of time, Ritchie. etc – but it can still be brutal. I think consistent rudeness He says of the 73 respondents to the CBA survey who and incivility by judges should be called out as well.” answered the question about whether a complaint was made and to whom, only three said a complaint was The Judicial Conduct Commissioner made to the Commissioner. That is a strong indication New Zealand has had a Judicial Conduct Commissioner that lawyers do not see a complaint to the Commissioner since August 2005. The Office was established to receive as an option. and assess complaints about the conduct of Judges. It “No one complains. I had a friend of mine who is a received 106 complaints in its first year of operation. judge comment to me that ‘only mad people complain to The latest report, for the year to 31 July 2017, states that the Judicial Complaints Commissioner’,” an experienced 314 complaints were received. Over the last five years North Island practitioner says. 1524 complaints were finalised, with 26 referred to the Mr Ritchie says the situation is different for complaints Head of Bench. made by non-lawyers. He says they very commonly The Office does not provide any detail on the types allege harassment and bullying. However, it must be of complaints it receives. The latest report states that remembered that these complaints are often last resort there has been no significant change in the range of efforts to challenge or call into question the legality of complaints: “Partiality, discourtesy, incapacity and a judicial decision. incompetence along with corruption, conspiracy and “That usually takes them beyond my jurisdiction other criminal acts have all been asserted.” Judicial and, in any event, the allegations of harassment and bullying would presumably come under “discourtesy”. bullying are most often unsubstantiated and readily “Complaints made to me by lawyers of harassment discounted including by reference to audio recordings of or bullying by Judges are few and far between and the hearings which I obtain independently of the court.”

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He says no complaint of harass- in tension-filled courtrooms.” ment or bullying has resulted in a recommendation to the Attorney- Do the judges know the limits? General that a Judicial Conduct Chief Justice Sian Elias and Judicial Conduct Panel be established to consider Commissioner Alan Ritchie both point to the state- the removal of a judge. ments made in the Guidelines for Judicial Conduct. “However, I have, on occasions, The Guidelines are published by the judiciary and the been sufficiently concerned to take most recent review was in March 2013. They establish the step available to me of referring some boundaries, beginning with the statement that a complaint to the relevant Head of “the primary obligation of a judge is to determine the Bench. That is where my involve- case before him or her according to law without being ment ends. There is no obligation deflected from that obligation by a desire for popularity on the Head of Bench to advise me or fear of criticism”. of any outcome. Usually, however, The Guidelines for Judicial Conduct state that “it is I express my expectation that the important for judges to maintain a standard of behaviour particular judge, or judges generally, in court that is consistent with the status of judicial be reminded of their obligations in office and does not diminish the confidence of litigants terms of public confidence in the in particular, and the public in general, in the ability, judicial system. integrity, impartiality and independence of the judge.” “I expect all of us who have (48). practised in the courts will have “It is therefore necessary to display such personal felt aggrieved at times by what we attributes as punctuality, courtesy, patience, tolerance have perceived as unfair treatment and good humour.” (49) at the hands of judges. I believe “…the entitlement of everyone who comes to court, my own experience in that regard whether litigants or witnesses, is to be treated in a serves me well as Commissioner. I way that respects their dignity. Judges must conduct need to bear in mind the burden themselves with courtesy to all and must require similar on judges as they strive to make courtesy from those appearing in court.” (50). decisions about evidence and cir- Balancing these is the injunction that “a judge must cumstances often hotly disputed by be firm in maintaining proper conduct during a hearing. agitated and apprehensive litigants Intervention is appropriate but should be moderate”. The

50 LAWTALK 917 · May 2018 CHANGING OUR CULTURE

degree of firmness and moderation example; and that there is a general bench-specific and specialist court are obviously a matter of interpre- lack of confidence in existing com- education needs. All new judges tation sometimes. plaint systems. take part in a structured induction Chief District Court Judge Jan- “I undertook to my colleagues to programme which places a strong Marie Doogue says she intends to explore potential ways confidence emphasis on the demands and take a constructive approach to the can be improved, bearing in mind responsibilities of the judicial role issue. that the current formal system and the principles which must guide “I expect the profession and the involving the Judicial Conduct judicial conduct. judiciary will find a productive way Commissioner is independent of The Institute curriculum is built forward that also maintains confi- the judiciary for good reason.” around four themes: dence in the court of which we are Judge Doogue says it is always The role of the judge, which all officers.” open to her to give firm collegial includes induction programmes She says that since the CBA advice and guidance. and programmes covering judi- survey she has been in touch with “I have done so in the past on cial conduct and ethics; annual all District Court Judges emphasis- the limited occasions it has been seminars for the different benches ing the zero tolerance the Principal necessary, and I will continue to and jurisdictions; and mentoring Judges and her have for bullying and do so, including whenever I hear programmes. harassment. of allegations of bullying and har- Context of judicial function, “In that communication, and assment. Most recently, by way of comprising programmes focused on notwithstanding shortcomings in general advice, I have reminded both the social and legal context in the survey design, we identified two judges to be alert to pressures in which judges work, including core underlying themes we thought had both their personal and professional courses on Te Reo and Tikanga, emerged: that as the people with lives that could impact unduly on Open Justice and the Media, the most authority in the court- their demeanour in court, including Family Violence and substantive room, judges should be leading by when those pressures are exacer- law updates. bated by counsel coming to court Skills and judge craft, includ- poorly prepared. ing subjects such as courtroom “Respectful and dignified behav- management and communication, “…the iour should be, and for the most part evidence and procedure, decision entitlement is, observed in the District Court. making, bail and risk assessment, of everyone It is mutually reinforcing of the and judgment writing. who comes to importance of our respective roles Renewal and resilience, encom- court, whether to the people who rely on us for the passing leadership, mentoring, litigants or orderly administration of justice.” managing workload and mental witnesses, is and physical wellbeing. to be treated Judicial training Several of the programmes in a way that One day you’re a lawyer; the next which are delivered annually respects their you’re a judge. What type of support include content on empathy and dignity. Judges and training in judicial decorum courtroom communication. Justice must conduct do new judges receive, and is it Winkelmann says examples include themselves ongoing? programmes focused on skills with courtesy Court of Appeal Judge Helen needed to judge effectively in a to all and must Winkelmann is also Chair of the diverse society, family violence, require similar Institute of Judicial Studies. This is solution focused judging, dealing courtesy from the independent educational arm of with vulnerable witnesses and those appearing the New Zealand judiciary and plays litigants in person, communication in court.” (50) an important part in the induction with children and young people, of new judges and ongoing profes- and sentencing. sional support and development. “During these programmes judges Justice Winkelmann says in 2017 are challenged to reflect on their the Institute ran 52 programmes courtroom behaviour, attitudes, for new, established and senior capacity to empathise with others, level judges. These addressed and how they communicate,

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especially in difficult situations. In some programmes they learn and practise tools to assist them to maintain respectful communication particularly in stressful courtroom situations,” she says. The Institute also runs annual bench specific programmes which usually include some content on courtroom management and com- munication, particularly for the Youth Court and Family Court benches. Current reporting and resolving inappropriate behaviour The problem has been, how can lawyers get some redress when they believe a judge has acted inappropriately? “It is all very well for the Chief Justice to come out and state that counsel should contact the Heads of Bench to raise any concerns, but this ignores the reality of the reputational risk that counsel safe in the knowledge that they will not be hung out to would be taking in doing so,” an experienced criminal dry, and further, where counsel have confidence that barrister says. “The Heads of Bench must be all too aware their concerns will actually be taken seriously and acted of the issue – they do not live in a vacuum after all – but upon,” an experienced criminal barrister says. they have thus far chosen to ignore the issue and pretend A South Island barrister says the bar has been reluctant that there is no problem.” to report bullying as it cannot be done anonymously Another criminal practitioner is also wary of any direct “and we have to appear on a daily basis before the same approach to the bench: “I do not know a single lawyer judges”. She gives one example of a lawyer who had a who has complained about the sometimes outrageous complaint against a Judge upheld, which resulted in behaviour of judges. It has always been this way and the lawyer being treated even more poorly. always will be. Older practitioners have fabulous war “Complaints have been made by senior practitioners stories of how awful some judges have been. For the on behalf of junior lawyers, but the feeling is that they Chief Justice to recently claim surprise at this type of have largely been brushed under the carpet and judicial behaviour by judges shows a frightening level of naivety.” behaviour may have moderated for a short time, but One barrister says when there are more than one judge then reverts within days.” on a bench, it must be for the senior presiding Judge Former Judge Graeme Colgan suggests that the best to manage the conduct of their more junior colleagues. first step for counsel who consider they are the subject of He cites an incident during a Court of Appeal hearing judicial bullying is to consult with a senior practitioner when a judge was “typically rude and nasty” and said to get objective confirmation and to seek advice. nothing “remotely positive or helpful to either counsel “If the behaviour is serious and/or recurrent, strategies appearing”. Unless the other judges do something, the might range from asking a senior practitioner in the offending judge will not see any reason to alter their field to speak with the judge concerned or his or her conduct, he says. head of bench, through to a complaint to the Judicial “There needs to be a mechanism in place whereby Conduct Commissioner. It is unlikely in my view that counsel can freely and frankly report judicial misconduct such incidents are one-offs and other counsel in the field

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will be aware of it already.” instigate a formal complaint would Judicial Conduct Commissioner be for lawyers to raise the matter Alan Ritchie says on “admittedly with their local Law Society branch rare” occasions he has sensed an President (or President of NZBA or unwillingness on the part of lawyers CBA) who would then raise it with to make what may well have been the Law Society President directly. eminently justifiable complaints “The Law Society President would to him. There needs then consider whether it should be “Concern for career and livelihood to be a raised with the appropriate head of would seem to be the likely cause. My mechanism in bench. This would be a more stream- advice has been to inquire whether place whereby lined and coordinated approach. The there might not be a very senior counsel President would generally not raise a practitioner in the area prepared to can freely specific incident which may be better make a complaint on behalf of court and frankly suited to the formal process (unless users generally. There would need report judicial of course the lawyer wants to remain to be specific examples of conduct misconduct anonymous), but more those involving which could be checked off against safe in the a pattern of behaviour and its effect audio recordings. It can be difficult knowledge on lawyers. Such an approach would to absorb the tenor of hearings that they will not involve any confidences being from written transcripts, but the not be hung breached and would ensure that any recordings are usually very helpful. out to dry perception of persistent intimidating, I have yet to receive any complaint rude or belittling behaviour can be in consequence of that suggestion.” raised by the head of bench with the judge concerned with a view to A better reporting judiciary, led by the Chief Justice, assisting him or her to reflect on and process – the and the Law Society, Criminal Bar modify the behaviour.” way forward Association and New Zealand Bar Ms Beck says the judiciary is The New Zealand Law Society has Association. The objective has been looking at generally improving been involved in a number of cases to find a safe and agreed process training, mentoring and education of reported judicial bullying. These where disclosure of the complain- for its judges around these issues. are often raised within one of the ant’s identity is safeguarded. “Contentious matters are already Law Society’s 13 branches. Without “We’re working through a system fraught for the parties concerned. an established process for resolu- in principle with the Chief Justice The Judge, as the person in charge tion, measures taken have included which would result in an agreed of the courtroom, has the ultimate approaches by senior counsel to process,” Law Society President responsibility for the environment the individual judge, more formal Kathryn Beck says. within which those matters are approaches to executive judges or Lawyers who are on the receiving dealt with. That responsibility is heads of bench by branch Presidents end of bullying behaviours are not not always easy to discharge, but and Council members, or an looking to end a judicial career; they getting it right can have a long-last- approach through the Law Society’s just want the conduct to stop and ing and positive effect on the people President to the appropriate head of to be able to do their work within a involved. Likewise, getting it wrong bench. The desire for anonymity and healthy, safe and respectful environ- can undermine the very principles the difficult and sometimes embar- ment – something our justice system we are trying to uphold and that has rassing subject of the complaints should be modelling, she says. a social and often economic cost.” have meant that many lawyers may “While there is a formal process Investment in getting matters not have felt willing to complain. through the Judicial Conduct right through education and a will- The recent public discussion has Commissioner, a more informal ingness by both the profession and resulted in a series of informal con- process where a lawyer wants to the judiciary to address the issues sultations between members of the see behaviour cease rather than will be well placed, Ms Beck says. ▪

53 PRACTICE May 2018 · LAWTALK 917

PRACTICE Why isn’t my computer backed up?

BY DAMIAN FUNNELL

Drive, Dropbox, Microsoft OneDrive backing up PCs is too hard anymore. This article was prompted by the recent loss of a for Business to name but a few. customer’s data. The customer contacted us when his Google Drive is, in your corre- Manual backups to laptop was stolen and after his firm’s IT helpdesk had spondent’s humble opinion, the removable media told him there was nothing that they could do to recover best by a country mile. With Google If you’re still doing manual backups the very important data he had on this machine. Because Drive you can store all of your files on – to an external hard drive or, worse, the hard drive was not encrypted, there was also nothing the cloud, but stream them to your DVD ROM – then I’d like you to think they could do to stop those in possession of the laptop computer in real time as you need seriously about your life choices from accessing the sensitive information (and family them. This gives you all of the benefits and how little you value your time. photos) stored on it. of files stored on the cloud (secure, Although better than no backups This customer stored data locally on his hard drive backed-up, easy to share, etc) with at all, even when they’re done to because he often worked outside of the office. For him those of having them stored on your a schedule manual backups are it’s just too difficult to stay connected to the office (via hard drive. There are also lots of great time-consuming, error-prone and VPN) and to work off ‘the server’ on a day-to-day basis. document management systems that generally inadequate in every way. The customer was shocked and appalled that this integrate with Google Drive that are data wasn’t encrypted and wasn’t being backed up. much better than the terrible systems Encrypting your hard drive “Everything on my iPhone is automatically backed up used by many law firms today. If your hard drive isn’t encrypted to iCloud, so I just assumed that our helpdesk was backing Dropbox is fine, but too expensive. then it would probably only take me up my laptop,” he said. OneDrive is flawed to the extent that a few minutes to be able to access If this sounds surprising to you then it shouldn’t. Despite we typically advise customers not all of your files, photos and emails the fact that more than half of us will lose important work to use it. if I came into possession of your data each year (due to accidental deletion, equipment computer. Same with your tablet theft or failure, viruses or ransomware, etc), almost no Cloud backup services or phone. end user devices (PCs, laptops, tablets or phones) are Services like BackBlaze for Business Luckily, it’s really easy to encrypt backed up in the business world. allow you to automatically backup any one of these machines to make This is because most business users still have files stored an unlimited amount of data from them virtually impenetrable to on file servers sitting on your office network, just like we your PC or Mac for only a few bucks unauthorised users. all did back in the 1990s. per month per PC. You can use these Windows, Mac OSX, iOS (iPhones So let’s look at some of the easy, practical ways you can services if you have one computer or and iPad’s) and Android all provide backup your computer, irrespective of one thousand and, best of all, they native encryption tools. They can be how difficult your helpdesk says it is. require almost no ongoing support a little basic, but they’re bundled or management. with the operating system and cost Cloud storage services Because they have no storage no extra, so there’s no excuse not The single best way to protect your limits, it doesn’t cost any more to to use them. data is to not store it on your com- backup your photos, movies (legally As always, if you have any ques- puter in the first place. When I switch downloaded, of course) and other tions about the opinions or recom- between computers all I have to do personal data without risking a mendations in this article, just drop is log into my cloud storage service telling off from your helpdesk. me an email. ▪ and I instantly have secure access We use a cloud-based systems to every single file I need, including management tool to support all Damian Funnell  damian. private files, shared company files of our customers. Amongst other [email protected] and even our family photos (about things, this tool allows us to turn is a technologist and founder of 3TB of data in total). on client (PC) backups with a single Choice Technology, an IT services There are lots of cloud storage prod- click of a mouse. There’s certainly company, and  panaceahq.com, ucts on the market, including Google no excuse for ‘IT’ to tell you that a cloud software company.

54 LAWTALK 917 · May 2018 PRACTICE

PRACTICE When a client is too much: Dealing with tricky customers

BY CRAIG STEPHEN

an opinion on the law, that opinion expectations. It’s a lawyer’s duty to work for their client, but is most likely biased because of their “Some clients expect lawyers to some clients seem far more trouble than they are worth view on the facts, which are also be able to achieve 100% of what and end up in the too-hard basket. biased, and that the judge is going to they want. From their perspec- You may already be thinking of Mrs B “who always be presented with two equally ‘com- tive they pay their lawyers a lot pays four months late”; but challenging clients are not pelling’ views on what occurred of money so they want value for always those unwilling to part with their cash. They can so the outcome is not going to be money, but because they are paying be demanding, difficult, and even angry. as simple as applying my client’s a lot they also want a lot of access Such clients can be a burden on resources and finances understanding of the law to his or to their lawyers. and sap energy levels, even if the numbers of so-called her understanding of the facts.” “They want their lawyers to tell difficult clients are small in comparison to those who them the truth but also to tell them are easy to deal with. The needy and what they want to hear. They want Rather than put up with their incessant, and even pushy clients their lawyers to be technically cut- impossible demands, or lax attitude to paying, there Mr Sills says some clients expect a ting edge but to speak in a language are some simple ways of dealing with such people that lawyer to drop everything for them. they understand. means they can, usually, be kept on the books. “You get clients who will email “Those clients are very anxious and five minutes later, if you haven’t and they want a lot of hand-holding The clients who know best responded, they will call the land- and attention. The lawyer, therefore, Paul Sills is an Auckland barrister specialising in com- line and then try the cellphone, and needs, to be able, in a very diplo- mercial and civil litigation and an experienced mediator. then start that sequence again,” he matic way, to set some appropriate He says, in his field, lawyers often come up against says. boundaries. clients with unreasonable expectations. “Technology has made demand- “It could be as granular as saying “The bush lawyer is a classic example; somebody who ing clients a whole lot worse, ‘look, I probably won’t be able to has been in or around the law for several years or they because they can email, call and return your phone calls or emails have had a number of disputes so text you constantly. Now you can within ten minutes, but I will they think they know everything. Or get volumes of stuff at 10/11 o’clock commit to returning them within they’ve read the statutes and rather at night. And you’re always wary four hours, or at the end of the than sit there and tell you the facts, about that because you think how business day’.” they spend all their time telling you rational – or sober – can someone what the legal outcome should be. be at that time of the night. The hopeless case “They’ve already looked into a “It’s made practising in general Paul Sills has had his fair share crystal ball and divined what the very exhausting; you just can’t of clients with cases that are lost judge is going to decide so what escape from it. It has got to the point causes. they’re asking me to do is tick the where the message on my mobile “You can often, as a litigator, get boxes to get to the inevitable posi- is to not leave a voicemail but to asked to take on hopeless cases for tive outcome for them. Most of the send a text or email instead. Some people who are just so caught up time, of course, they are wildly off still do of course but I don’t listen to in the past that they can’t see the the mark because their analysis is the voicemails anymore, otherwise rationality of what they’re asking subjective and misses a lot of key it just becomes uncontrollable.” you to do. Typically they want you stuff but their enthusiasm for telling Emily Morrow, a former to do so on a contingency basis, you what the law is unbounded. US-based lawyer and now a con- which is being asked to take an “I find it is best to have a direct sultant in Auckland to lawyers and enormous risk based on an often conversation with them saying law firms, says one of the biggest illusory outcome. that, while I appreciate they have issues is clients with unrealistic “I’ve been in this game long

55 May 2018 · LAWTALK 917

◂  Filippo bna The lawyer as the problem Paul Sills says that sometimes the issue lies with the lawyer, through fear. “We all grow up in this profession fear- ing having direct conversations with our clients whether it’s about fees, or expecta- tions. Far too often we take on work that we know when we say yes to it, we won’t actually have time for it or we know that it’s going to put us under pressure. And that’s not a good situation for either party.” Emily Morrow says the issue can arise at the very start of a business relationship. “Many lawyers also don’t have particu- larly direct conversations with their clients on what they charge and when they’ll see the bills. The more transparent that is, the better.” Getting the best out of the client Brenda Ratcliff, a Wellington-based executive coach whose MindMeld Coaching business works with lawyers, dislikes the term ‘difficult clients’ and says a lot of issues revolve around simple misunderstandings. “As soon as you start with a label that classifies a client as difficult then actually there’s lots of opportunities to notice them enough to say in response ‘look, I’m not a that far.” being ‘difficult’. So, instead it would be a bank and rather than worry about all the Mr Sills finds that delayed payment or good start to put good systems in place to work I would need to do for you and the part-payment is something that is getting train clients to treat you well.” risk of never being paid, I would rather go worse, and that is partly because of the She says setting out the basics will go a home and play with my kids’.” working ways of big business. long way to creating a healthy lawyer-cli- He says lawyers need to use their “The whole market outside the law has ent relationship such as a well-written and instincts more. developed a late-paying attitude. You look clearly explained contract, and explaining “I certainly have fallen foul of being at some big retailers on 90-day terms to the payment system. She also suggests unable to say no when actually your their suppliers and that’s extended to legal having an upfront conversation about how intuition at the outset is saying ‘you don’t and accounting bills. Late payments have they can work together. want this job’. We try to be all things to all an impact on administration and managing “Part of the first meeting is going through people but there are certainly people you the cash flow. the basics, pay rates, deposits, how you now wish you had said no to.” “At any one time I will have invoices well would like to be paid and what kind of over six months old.” working relationship they can have.” The clients who ‘forget’ to pay Emily Morrow says timing can be crucial. Ms Ratcliff suggests the firm’s website Or don’t. While delays are common, “The lawyer needs to be very careful could be designed to attract the right type sometimes clients refuse point blank to about the timing and the content of the of people, “so that potential clients will pay what they’re due. bills, so that they get sent out when the look at it and ask themselves ‘is this for “The classic standoff in litigation is the client is motivated to pay them; and also me?’ and then stating your expertise and result comes out and it doesn’t go your way, that the bills give a sufficient amount of what you expect clients to do.” and then the client doesn’t feel they should detail, but not too much detail, about what She suggests young lawyers, who can pay,” says Paul Sills. work was done. be vulnerable to opportunistic clients, can He says terms of engagement are essen- “If the lawyer is adept at the timing and adopt a mentor or someone else within tial so that there’s something to fall back the content of the bills, getting those bills the firm who can offer advice and support on when issues arise. “But that doesn’t paid will be much easier. Many lawyers them. “There’s also useful tools around stop there being a fall-out at some time. procrastinate on billing and then they being able to state your needs assertively, In litigation that’s often at the end when flood-bill at the end of a project; that’s and stating some expectations at the start, there’s a big invoice for the trial if it goes going to make it harder to get paid.” for example, call or email me at a particular

56 LAWTALK 917 · May 2018 PRACTICE

time on a particular day … so state the behaviour really objectively.” had to say ‘look, I think the chemistry between you and me is less “And if a client does call or email excessively, state the impact than ideal’ and then suggest they work with another good lawyer.” that is having; that it is preventing you from carrying out the work Ms Morrow says one of her clients, in particular, was being needed to deliver the client the results they want.” contentious, difficult, constantly questioning her - “just being Paul Sills says the best way to manage an anxious client is to extremely unpleasant.” She feared that the working relationship try to manage their expectations. would have harmed her reputation if it continued. “You’ve got to actually sit them down, and say ‘look, I appreciate the importance of this to you but we need to work in with each What do the Rules say? other’s expectations and it really works best for me if you can The rules around the lawyer-client relationship are covered in send me an email with your questions and be aware that, as soon the Lawyers and Conveyancers Act (Lawyers: Conduct and Client I am able to get on to it, I will address it. Care) Rules 2008, and in particular, 3.1: “A lawyer must at all times “It’s not a case of reading them the riot act, because they are your treat a client with respect and courtesy and must not act in a client and they do have legitimate concerns, and they might be discriminatory manner in contravention of section 21 of the Human under pressure from the bank, or they can’t tie down a settlement. Rights Act 1993. I try to look at it from their perspective.” Furthermore, in Rule 3.2: “A lawyer must respond to inquiries from the client in a timely manner”. Gasoline on a fire Rule 4.2 covers the duty of a lawyer to complete a retainer. In Jonathan Robinson is an American psychotherapist who has essence, a lawyer is required to complete a retainer unless either the presented at New Zealand Law Society events. client discharges the lawyer from the retainer or there exists some He says, sometimes, our approach to difficult people is the ‘good cause’ for the lawyer to terminate the retainer (of which the problem. client has received reasonable notice). ‘Good cause’ is not defined “The sad truth is that most people’s normal or habitual way under the Rules pursuant to rule 4.2.1, but it is said to include: of handling difficult people – getting angry at them or staying • Instructions that require the lawyer to breach any professional silent – tends to be like putting gasoline on a fire. obligation. “The first step in dealing with any diffi- • The inability or failure of the client to cult person is to hear what he or she has pay a fee on the agreed basis, or, in the to say, and to acknowledge their reality. absence of an agreed basis, a reasonable That does not mean you agree with him fee at the appropriate time. or her, it just means you understand their • The client misleading or deceiving the feelings and what they’re trying to say.” At some lawyer in a material respect. Mr Robinson firstly suggests placating point in • The client failing to provide instructions an angry individual – who he calls a “tiger” time the to the lawyer in a sufficiently timely way. – by empathising with their situation lawyer has • Except in litigation matters, the adoption without agreeing or disagreeing with them. to decide by the client against the advice of the He says the next step could be asking whether lawyer of a course of action that the questions that clarify what a person wants. to hold or lawyer believes is highly imprudent and “By listening to a tiger and then redi- fold; are you may be inconsistent with the lawyer’s recting his or her anger toward what he going to fundamental obligations. or she really wants, you can avoid being keep that Special consideration is given to lawyers the ongoing target of his or her wrath. If client or are acting in litigation under Chapter 13 of the what they want is not possible for you to you going Rules. The Law Society’s National Friends give, you can put the problem back into to fire that Panel is also a good option for advice on their lap again by asking what they think client? the circumstances in which a lawyer can you should do next.” terminate a retainer. ▪ Stick or twist? So what to do when the person on the other side of the desk becomes too much to handle. “At some point in time the lawyer has to decide whether to hold or fold; are you going Legal Accounting Bureau · Save time and money Kathy Kell to keep that client or are you going to fire provides comprehensive, · Always know your trust account [email protected] accurate, efficient and timely is balanced and your month end that client?” says Emily Morrow. certificates are filed on time Ph 09 444 1044 management of solicitors’ trust Fax 09 929 3203 accounts. · Our service is completely secure “There were a couple of instances when I and confidential www.accountingbureau.co.nz was practising law where I had been work- Outsource the management of · Trusted professionals with over your firm’s trust account. Either 20 years’ experience ing with a client for a while who had been come to us or we can come to · 72 law firms currently use our Powered by juniorPartner. driving me crazy. you remotely. services Practice Management software you can trust. “They had become unmanageable and I

57 PRACTICE May 2018 · LAWTALK 917

PRACTICE Advising non- English speakers Part 1: Some contractual issues

BY ALAN SORRELL

This is the first of two articles looking at legal practice with “A signature is, and is widely rec- non-English speaking clients. This article touches on issues ognised even by the general public of contract, and the concluding part (to be published in the as being a formal device, and its June issue) looks at aspects of legal practice for those clients. value would be greatly reduced if it could not be treated as a conclusive ground of contractual liability at Despite the 2013 census statistic that 96.3% in our least in all ordinary circumstances.” country speak English, legal disputes involving non-Eng- Professor Atiyah added: lish speakers are increasingly common. In part this might “However, what is, I think, less be due to the entrepreneurial nature of many recently clear is what is the underlying arriving New Zealanders and also to different norms as reason of substance in this kind to contractual formalities. Anecdotes are not uncommon of situation. The usual explanation which recount substantial transactions – sometimes for holding a signature to be con- complex – with little or no documentation. Some of clusively binding is that it must be the issues have cross border aspects which add their taken to show that the party signing own complexity. has agreed to the contents of the Language difficulties create risk in business arrange- document; but another possible ments for those directly involved and third parties rely- explanation is that the other party ing on those arrangements such as suppliers, lenders can be treated as having relied or otherwise. A common example is a real estate trans- upon the signature. It thus may action which has been relied on to purchase another be a mistake to ask, as HLA Hart property or to spend the proceeds. There are also risks once asked, whether the signature for those who advise in relation to these arrangements. is merely conclusive evidence of Has their advice been directed to correctly understood agreement, or whether it is itself a facts or been understood by the recipient? Has the loan criterion of agreement.” been properly secured so as to be efficiently and eco- The law of contract has dealt with nomically enforced? Managing such risks is necessary Language challenges to apparent agreement in and challenging for the legal advisor. difficulties two broad ways. One involves the create risk signatory having exercised their will How contract law treats claims in business in agreeing and not being subject of language difficulties arrangements to undue influence by relevant A contract is created when agreement is reached. for those others. The second is signatories Agreement is usually signified by the parties’ signature. directly claiming the document is not what The importance of third parties being able to rely on involved and they intended to sign: an issue since signatures is accepted legally and commercially. third parties medieval times. In his lecture published in Essays on Contract (Oxford, relying on those 1990) as “Form and Substance in Legal Reasoning: The arrangements Lack of consent Case of Contract”, Professor Atiyah posed, with reference such as Mikitasova v ASB Bank Ltd [2016] to the rule in L’Estrange v Graucob [1934] 2KB 394, the suppliers, NZHC 897 question of why signatures are, within established limits, lenders or This was a case about the absence regarded as conclusive. He answered: otherwise. of consent due to undue influence

58 LAWTALK 917 · May 2018 PRACTICE

impeaching the evidence of the signature. The legal est factum or “it is not my deed”. also necessary to bear in mind the advisor for a Russian couple and the bank did what she This is distinct from defences relying caution expressed by Huggins V-P normally did and no issues were obvious. Viya Mikitasova on some aspect of the enforcer’s in Kincheng Banking Corporation v sought an injunction to stop ASB from selling her property conduct such as misrepresentation Chan Siu Kit [1986] HKC 212 (Hong to enforce her guarantee of her husband’s borrowings. The or similar where it is essential there Kong Court of Appeal): lawyer acting gave evidence of advising her, without the be some communication which is “Anyone who signs a document in husband in the room, that her property would be at risk understood by the party raising it. a language he does not understand and that she need not sign. The lawyer also obtained her Frequently, when considering is necessarily negligent unless he has signature on a waiver of independent advice. The lawyer this defence, the court is faced with been actively misled as to its nature.” was satisfied she had no difficulty comprehending what letting the signatory free of what In that case the guarantor signed was discussed. This approach seemed compliant with the appear to be binding obligations a guarantee in English, was given bank’s requirements but in due course may be the subject when others have relied on those an explanation in Cantonese but of evidence and debate as to usual practice. There was no same obligations. It seems, and maintained he could only speak evidence of discussion of the overall financial situation the courts have found, it is more Mandarin. He raised no objection of the couple so it may not have been enough had she appropriate that the signatory at the time and was found to be an been taking will instructions or certifying a contracting should remain obligated. See Simon unreliable witness. out from the Property (Relationships) Act 1976. Connell, “Not My Doctrine? Finding A similar result is implicit in Ms Mikitasova gave evidence she neither understood a contract law explanation for non Mikitasova and likely in the United the detail nor the concept of such arrangements; includ- est factum” (2016) 47 VUWLR 245. Kingdom, Australia (Bank of Western ing the waiver. Some Russians who knew her deposed The burden of proof lies heavily Australia Ltd v Luo [2010] NSWSC as to her limited English. She claimed intimidation and on the signatory seeking release 733 (6 July 2010) and the United control by her husband. The bank knew she was not to prove the document has a very States (Lauren E Miller, “Breaking commercially interested in the transaction, was a recent different effect or character than the Language Barrier: The failure arrival from Russia and only dealt with the bank in her intended, was not signed negli- of the objective theory to promote husband’s presence. The court was satisfied she had a gently and probably must also prove fairness in language barrier con- seriously arguable case both of undue influence and they were misled. tracting”, Indiana Law Review Vol that the bank could be imputed with Non-English speakers signing 43: 175 note 7). knowledge of that influence. documents in English will depend The surrounding evidence is The critical issue of whether on others to explain the nature weighed by the court. Commonly the bank had done enough in the and effect of the document. Use of there will be conflict between the circumstances to counter its knowl- Google Translate is also common. formal signed document and infor- edge could not be determined in an Hurdles for those who don’t speak mal communication perhaps by interim injunction context with only English will arise. The courts have texts or emails but also spoken with affidavit evidence. The substantive found lack of knowledge of the no record. Other business dealings hearing might touch on matters language of the document sufficient by the signatory are considered. It is such as the extent of necessary to require the advice of others to open to a signatory to lead evidence disclosure of the principal debtor’s understand it is sufficient to justify from their lawyer should they sug- financial position and any need the court considering the defence. gest there was a deficiency in the for Russian interpreters. Moore J See Petelin v Cullen (1975) 132 CLR 355 legal advice. Failure to do so without made clear determinations that at 11-12 and Marinovic v Marinovic adequate explanation could lead the balance of convenience favoured HC Auckland CIV-2006-404-2447, 27 to an inference that the evidence refusal of the orders. Damages, from April 2007 at [27]-[28]. would not be helpful. the bank, should they ultimately be Marinovic is interesting as the Next month I will look at the legal ordered, were an adequate remedy elderly couple were long term advisor dealing with a non-English for Ms Mikitasova whereas it was residents of New Zealand who had speaking client to ensure they unlikely she could pay the bank. enjoyed a successful business career achieve the objects of the engage- Delay and lack of candour were also but had limitations reading English. ment and meet their obligations. ▪ counted against her. Knowing the general nature and effect of the document but still sign- Alan Sorrell  [email protected] is Non est factum ing without carefully ascertaining a barrister at Bankside Chambers, The second defence was developed the contents will readily be found to Auckland. He has acted in a wide for those who were illiterate or blind be negligent and therefore binding range of contract, partnership and and so had to rely on others to read on the signatory. In Zhao v Golden shareholder disputes, securities the document to them. The defence Garden Ltd [2016] NZHC 2204 at regulation issues, and real prop- or doctrine is called the plea of non [21] Bell AJ noted “In this area it is erty, trust and estate matters.

59 PRACTICE

PRACTICE The paradox of meritocracy

BY LAURA O’GORMAN

Overview The New Zealand Law Society has launched its Gender Equality Charter for the legal profession, as an initiative to support the retention and advancement of women in the legal profession. The introduction to the Charter quite properly observes that a commitment to the principles of diversity and inclusion is not only the right thing to do, but it’s also critical to the success and sustainability of the legal profession. However, for this initiative to succeed, it is important to under- stand the “paradox of meritocracy” and the need for individuals to take personal responsibility for the values that are endorsed. A key element is understanding how the mind works, both con- sciously and unconsciously. This individual learning process is not something that can be delegated. The Paradox In true meritocratic systems everyone has an equal chance to advance and obtain rewards based on their individual merits and themselves as “meritocracies” have the lowest rates of diversity efforts, regardless of their gender, race, class, or other non-merit (see Liesle Theron “Unconscious bias trial at Victoria University factors. Law School”, LawTalk 906, May 2017, page 58). The “paradox of meritocracy” is the disturbing conclusion that when an organisational culture promotes these commendable So what should we do? values (compared with when it does not), managers may, ironi- This first step to solving this problem is to acknowledge that, as cally, show greater bias in favour of men over equally performing human beings, we are all inherently biased. It is simply a fact women (see Emilio Castilla and Stephen Bernard “The Paradox of that we are physiologically built with a wide range of instinctive Meritocracy in Organizations” in Administrative Science Quarterly, reactions. The physical responses of this type tend to be obvious Vol 55, issue 4, 2010). – we jump when startled by a loud explosion, for example. Less The fear (supported by numerous empirical studies) is that obvious are the cognitive responses. Many are discussed, with endorsing meritocracy principles can serve as an unintended helpful examples, in Daniel Kahneman’s excellent book Thinking, “trigger”. Managers might wrongly take comfort that they are Fast and Slow (Farrar, Straus and Giroux, 2011). These include status impartial, which could discourage them from closely examining quo bias, confirmation bias, the halo effect, in-group bias and their own behaviours for signs of cognitive bias. Similarly, because cognitive ease, framing effects and selective perception. These they endorse the cultural norms, they may feel that their own tendencies (and many others) impact us in our personal lives just motivations and actions will not be questioned or interpreted as much as our professional. It takes concerted effort to notice as prejudiced. The lab experiments conducted by Castilla and them and address their effects. Bernard strongly supported this hypothesis, showing that when Just like we would expect a pilot to learn how to fly an aircraft meritocratic values were expressly endorsed, men earned (on before operating commercially, current and future leaders within average) a higher bonus than equally performing women. In the legal profession must seek to take conscious control of how contrast, women (on average) earned a higher bonus than equally they behave and make decisions, so this can be optimised rather performing men when the core values did not expressly refer than taken off course unwittingly. This is why one commitment to meritocratic values and instead emphasised the regularity of in the Charter is so important – to undertake unconscious bias evaluation and managerial autonomy. training. This paradox potentially explains why companies that describe Various resources are available to assist with meeting this

60 WAIHEKE ISLAND · FOCUS ON

FOCUS ON... WAIHEKE ISLAND Paradise to the courthouse in just over half an hour

BY CRAIG STEPHEN

Waiheke Island in the Hauraki Gulf is connected to the mainland by ferries that set off every half hour during working hours. This gives the small group of practitioners based there easy access to the Auckland CBD. According to ferry operator Fullers, Waiheke Island boasts “92 square kilometres of pristine beaches, stunning coastal headlands, vineyards, olive groves and seaside”. It’s easy to see how living and working on the island wouldn’t be a chore. Todd Greenwood has called it home for 17 years and, for the past four years, this has been his work location too. commitment, ranging from the helpful Last month he established his own general practice, Greenwood NZLS CLE Ltd webinar “Unconscious Bias Law. in the Workplace”, which is available to Mr Greenwood says the semi-rural environment attracted him view on the CLE website under the Free to Waiheke. Recordings box. “It’s like living in a small town in provincial New Zealand; you Through better individual awareness of have a permanent community of about 9,000 people spread out these issues, combined with more account- over a large geographical area in a unique situation on an island ability and transparency in the workplace, just 35 minutes away from the Auckland CBD. It’s a stunning place. it is hoped this will mitigate the paradox “You are recognised within the community, and you are often problem. recognised in the public areas such as in the supermarket, at the petrol station or at a restuarant and so on. Conclusion “So there is a familiarity and a connection with a small com- The “paradox of meritocracy” reminds us of munity in the same way that occurs in the provincial towns. It the danger of complacency. The objectives is very similar to my experience as a police constable in small cannot be achieved as an exercise of mere towns like Oamaru and Gore.” compliance and ticking the boxes. Rather, Without an office, Mr Greenwood has a cordial way of connecting we all have to work to understand and actu- with his clients. ally reflect the values in our daily lives. By “I normally visit clients in their homes or over a coffee in a the very nature of the issues we are seeking beachside cafe. I am able to connect with their domestic environ- to understand and correct for, this requires ment and with their personalities when visiting a client’s home. intentional effort on an ongoing basis. ▪ “In addition, a lot of instructions come via phone or email, so the need to meet a client to progress matters sometimes doesn’t come Laura O’Gorman is a partner of Buddle till later on in the piece, and sometimes it’s not necessary at all.” Findlay. She is the representative of the He says that the public transport system ensures he can carry Large Law Firms Group Ltd on the Law out his court duties on the other side of the Hauraki Gulf efficiently. Society Council. “Waiheke is very convenient, the ferries run every 30 minutes

61 and that gets me to the Auckland courts seamlessly, and the rail Facts and figures system also enables me to get to Waitakere and Manukau courts The 2013 Census recorded 8,238 without any difficulty.” people who usually live on Waiheke Island. This is expected to have Big city blues increased to near or above 9,000. Brett Carpenter has a logical and simple reason for working on the island: “It’s not Auckland.” The median age is 45.2 years; the “I’ve got a 35-minute boatride for a commute and I just love it; median age in Auckland is 35.1 it’s a great place to live. years. And 18.5% of people on “We moved out of Auckland in 1999 because we got sick of it, Waiheke are aged 65 years and moved to Hawke’s Bay, where we bought a bit of land, developed over, compared with 11.5% of the a vineyard, and kept our day jobs. total Auckland population. “We have some grandchildren up here, so decided to move back. But we didn’t Ethnically, the island is far less want to return to Auckland, we’d had diverse than Auckland as a whole. enough of it, so we moved to Waiheke, While 59.3% of the population and it was the correct choice.” in Auckland is Pākehā, it rises Mr Carpenter, who specialises in tax and to 90.5% in Waiheke. The Māori I normally visit trusts, does consulting work three days a population is slightly higher than clients in their week for Queen City Law in the CBD. Auckland – 11.4% compared to homes or over He says the only disadvantage of 10.7% across the region. But only a coffee in working on Waiheke is that the solitude 2.9% of those living on Waiheke a beachside is interrupted during the summer months are Pacific peoples compared to cafe. I am able when “Aucklanders come over en masse”. 14.6% in Auckland. to connect with their The knock-on effect After English the next most spoken domestic Anthony Fraser has been on the island language is French (3.7%). environment for more than 20 years. He previously and with their had offices in Parnell and Epsom but now The island was rated the fifth best personalities operates from Oneroa while also seeing region to visit in Lonely Planet’s when visiting clients at his home in Auckland. Best In Travel 2016 publication. a client’s Mr Fraser, who works in several areas of home. law, but mainly property and commercial,

62 ◂ Waiheke island  Lee Gilbert bn

▸ Vineyards on Waiheke island  blue_quartz ba

says the social demographic on Waiheke has changed over that time. “There’s now a lot more property work on the island,” says Mr Fraser. “When I arrived the baches were largely quite modest and hadn’t seen any improve- rooms. But I also have found the criminal courts up here are very ment for a number of years. rehabilition-centred and have a variety of courts for different “When those baches began rising in value purposes. many bach owners sold them, and the new “Everyone is very collaborative, and for what I am doing it owners did them up and then sold them on works, but if I had a big full-time load I would need chambers in and it’s been moving that way ever since. town. However, for my small workload it works very well. I have “So while the social fabric may have a home office and do my paperwork from there, although I can changed, the geography hasn’t and it also check my files on the ferry and make phone calls. remains a lovely working environment,” “Waiheke is the perfect place because it is very much a holiday he says. place. Our children and grand-children love it, and it’s just over half an hour away from the central city.” Keeping her hand in Mrs Walshe says while she felt a bit isolated at first she has Like Todd Greenwood, Judith Walshe quickly got to meet a lot of people and become a part of the spends a fair bit of time in court in community. ▪ Auckland. The barrister sole and her dentist hus- band Liam came up from Christchurch in May last year to retire, but she found she DOING DISCOVERY? www.lawflow.co.nz could easily continue to work part-time. “I use the ferry, which is free if you LawFlow is a web-based discovery system designed, developed and have a gold card, and I then walk up to hosted in New Zealand, used by New Zealand law fi rms since 2012. the Auckland District Court which is five blocks up the hill. It means I get to meet up ∂ Generate discovery lists and electronic bundles with people and get exercise, so it works Full-text search your discovery documents ∂ Remote access via any web-browser very well,” says Mrs Walshe. ∂ And much more! “Being new to the Auckland court I have ∂ found the people in the court to be very Take a free, fully-functional trial today! Visit our website for details www.lawfl ow.co.nz helpful and there are plenty of meeting

63 IN-HOUSE May 2018 · LAWTALK 917

IN-HOUSE The “modular” General Counsel

BY MATT FARRINGTON

The role of an in-house counsel is a busy one. On any given day we can find ourselves dispensing legal advice, certifying documents, finding templates, man- aging contractual obligations, proofreading that really important paper for the Board/Minister, or just providing general reassurance. Think then of the poor General Counsel who supervises all of that, brings her or his expert legal judgement on the most difficult legal prob- lems, attends the highest echelons of internal meetings, and deals with all those pesky internal budgetary things. At Juno Legal, we’ve worked with a lot of legal teams and a lot of General Counsel. We see the roles and respon- sibilities of General Counsel expanding throughout both the public and private sectors and through large organisations and small. This is now at the point where the role has become simply too large with too many components for one person to do direct reports. This might be the team of lawyers, or justice to them all. might involve managers or team leaders that, in turn, One of our most frequent recom- have their own line-management responsibilities. Many mendations to the General Counsel General Counsel also have non-lawyer direct reports such we work with is to identify the var- as risk, compliance, regulatory and practice management ious functions or “modules” they’re staff. In this capacity of developing and leading people, currently performing for their the General Counsel might have regular catch-ups with organisation. Which require the We see the her/his team, carry out hiring and other personnel General Counsel’s personal input? roles and tasks, set performance expectations and complete Which are the General Counsel’s responsibilities of annual reviews and development plans. Note that we areas of strength, weakness and General Counsel treat workflow management (who’s got too much/not interest? And once that’s done – expanding enough work on) as part of the legal operations role perhaps more importantly – we throughout both below, and matters like budget setting as part of the recommend that General Counsel the public and internal management role below. formulate a realistic expectation private sectors Chief firefighter: General Counsel will often be of what can actually be achieved and through large involved in managing the legal (and quasi-legal) crises in a working week. Any modules organisations that inevitably crop up from time-to-time. Perhaps remaining should be delegated to and small. This a significant court case is progressing, the media are team members with appropriate is now at the asking questions about one of the organisation’s func- skill sets to complement those of point where the tions, or someone has sent a spreadsheet containing the General Counsel. role has become client information to the wrong person. In this role, We’ve identified the following simply too large the General Counsel is dealing with the legal issues and key modules that form key parts with too many liaising with others in the organisation in a fast-moving of the role: components for crisis-management environment. People leader: For all except sole- one person to do Technical expert: General Counsel are called on by charge, General Counsel will have justice to them all. more junior lawyers and others in the organisation for

64 LAWTALK 917 · May 2018 IN-HOUSE

but is rather providing their expert advice and judgement to the overall functioning of their organisation. Internal management: For good or bad, every in-house lawyer will be involved in the internal processes that are the lifeblood of most organ- isations. This may include team and project meetings, internal emails and communications, and training sessions and administrative necessi- ties. In addition to this, most General Counsel will add executive/strategic leadership team meetings, HR and leave approvals, budget setting and other senior management processes. Other: Various other responsi- bilities may be assigned to General Counsel. Many will also be their organisation’s privacy officer. Others have responsibility for risk, compli- ance, insurance or (for public sector organisations) the department’s legislative programme. Are you a General Counsel that thrives on a fast-moving crisis, but have no particular expertise their technical expertise. Whether issues as they arise, managing legal in triaging day-to-day workflows through long experience with workflows around the team, and and implementing systems and the organisation or knowledge end of month/quarter/year report- processes to aid the legal team in of the particular subject matter ing. It may also involve managing their work? Perhaps you need to involved, in this role, the General (or implementing) the tools, systems find a legal operations manager. Are Counsel shares her/his substantive and processes used by the legal you a superb people leader that can knowledge and expertise to resolve team in providing legal advice to also effectively manage upwards, but difficult queries. their organisation. Basically working simply don’t have the subject matter Final arbiter: The role of the “on”, rather than “in” the business. expertise to make the hard calls on General Counsel as final arbiter Manager of external legal difficult areas unique to your agency? involves making hard judgements counsel: Most in-house legal teams A Deputy General Counsel, Principal on finely balanced issues. Although are supported by external legal Adviser or Special Counsel might be related to the previous technical counsel. In this role, the General tasked with these specific areas of expert module, the final arbiter Counsel oversees what work is responsibility. There are many ways differs in that the General Counsel being briefed out, reviews the work of dividing up all the responsibilities is making a legal judgement as to that comes back (sometimes trans- of a legal team; they do not all have to the strengths and weaknesses of lating it for something useable to fall on the General Counsel’s shoul- particular issues, rather than giving the business), negotiates rates and ders. It is therefore critical that you substantive guidance on where panel arrangements and chases up find a division of responsibilities that to find the answer to a particular end of month reports. works for you, for your legal team, problem. Governance/board secretary: and for your wider organisation. ▪ Legal operations: Legal opera- Many General Counsel also carry tions involves much of the day-to- out the function of board secre- Matt Farrington  matt. day processes of running a legal tary for their organisation. In this [email protected] is a team and working to continuously role, the General Counsel may not lawyer and legal technologist improve these. This includes triaging be providing strictly legal advice, with Juno Legal.

65 FUTURE OF LAW May 2018 · LAWTALK 917

FUTURE OF LAW More houses, more contracts… What the Housing NZ legal team did

BY GEOFF ADLAM

“Not only could we produce standardised contracts much faster, The drive to increase the number of but those who had to manage the finished contracts were freed up new homes built each year is placing big from having to read a particular contract for a particular project. labour demands on a number of sectors. Knowing standard terms are in standard contracts makes the life Legal services is no exception. Contractual of a contract manager much easier.” documentation is required every step of the The issue was that the large increase in the volume of contracts way in the construction process. meant that the benefits coming from standardisation were being Crown agent Housing New Zealand outweighed by the sheer number of contracts needed. The solu- Corporation owns or manages 64,000 tion came after discussions with digital legal document provider houses with over 185,000 people living in LawHawk. The result is a contract automation system designed their houses or flats. specifically for Housing New Zealand’s needs. Its building development programme is increasing in pace and scale across Benefits in time and accuracy the country as it moves to help meet the Automation is now producing big benefits in time and in accuracy. demand for more state and affordable There is still a heavy workload, but Housing New Zealand has housing. In Auckland alone Housing New reduced its projection of contract facilitators from eight to four. Zealand is delivering over 24,300 new The time savings are noticeable: Where it used to take a contract state and affordable houses over the next facilitator four hours to produce a ‘3910 development contract’ from 10 years. It’s the most active development the standardised templates, the document programme the agency has undertaken in automation system means it now takes decades. one hour. The production time for short Housing New Zealand’s in-house team form standardised consultancy contracts is responsible for producing the contracts has gone from 50 minutes to 15 minutes. required. The team has 12 lawyers, six in A long form standardised consultancy each of Auckland and Wellington. Late contract now takes 40 minutes instead of last year the legal team workflows were The issue was two hours previously. reviewed to see how the greatly increased that the large The document automation process uses demand for contracts would impact. increase in an intuitive questionnaire to gather all the Looking forwards it was projected that the volume required information. These are very user- eight contract facilitators would be needed of contracts friendly with plain English guidance and in 2020 to produce the increased number meant that built-in logic and designed for non-law- of contracts. the benefits yers. Once input, the information can be A lot more work for a team already coming from used to instantly assemble one or more finding it hard to keep above water, and standardisation documents. Clauses that are relevant are more staff required. There had already been were being retained, and those which are not (along a lot of effort put into standardising the outweighed with all references to them) are automat- construction contract templates. by the sheer ically deleted. “This standardisation of templates was a number of Housing New Zealand says LawHawk big thing,” Housing New Zealand General contracts converted the initial selection of templates Counsel Bruce Riden says. needed. to online automated documents for a proof

66 LAWTALK 917 · May 2018

 Brian Smith bna ▸ of concept. After that had been approved, development was “fairly fast”. “We were testing the automation of our contract templates on the LawHawk software in a live environment within a few weeks of engaging LawHawk in August 2017,” says Bruce Riden. “Late last year we asked LawHawk to automate a particular contract that we needed very urgently for a specific work- stream – which required 72 contracts to be prepared – and LawHawk was able to provide us with an automated version of that particular contract template for testing within days.” Impact on the legal team Bruce Riden says the automation project has had a significant impact on their legal team’s work. This includes improved quality. The software populates the contract from a and make changes has decreased – once the contract has been questionnaire, meaning human error is completed on LawHawk it can be reviewed and sent out very almost eliminated. quickly to the business. As a result the working relationship “This has meant that not only is it easier between the development managers and the legal team members – and more pleasant – for the contract facil- has improved.” itators to prepare the original contracts, Mr Riden also happily points to changes in the workload. He says it’s also quicker and more efficient for the the legal team was struggling under “an unmanageable workload senior lawyers checking the contracts. They with more and more demands being thrown in” – “using LawHawk know that key information will be correct, has made the impossible task possible and the team now feel like which has vastly sped up the review time they have doable jobs”. required before the contract can be sent “The process has changed the way we look at contracts from out,” he says. reading through each page and manually making amendments, Internal Housing New Zealand clients to simply filling in a questionnaire or ‘interview’ online and then are also finding a noticeable improvement the contract is automatically produced. Changes are easy to see in the service they receive from their legal and check against. team. “In-house lawyers are always busy with many different compet- “Our internal clients know that they will ing priorities; this takes a time-consuming task and makes it quick get their contract documentation back and manageable, improving the quality of work, the time required quickly. The need to go back and forward and improving our relationships with our internal clients.” ▪

67 FUTURE OF LAW May 2018 · LAWTALK 917

FUTURE OF LAW Law and digital technology: what will the legal landscape look like in 2038?

BY BENJAMIN LIU

Protection Regulation (GDPR) will go into effect on 25 In 1998, the internet speed was 56kb per second May 2018. The importance of GDPR cannot be overstated, (today it is 1gb per second, a 20,000 times difference), two as it will affect every organisation that deals with data. Stanford University PhD students had just incorporated In fact, any New Zealand company conducting business a little-known company called Google, and iPhone was online will have to ensure GDPR compliance. not released until 10 years later. It is amazing, in just 20 years, how much digital technology has improved, and AI law how much our lives have changed as a result. Second, a new area of law, which I call “AI law” here, will With many innovations already here or on the hori- emerge as a distinctive legal field. In 2038, we will live in zon, we are expecting a much more profound social a world where AI systems are used to make predictions, transformation to come in the next 20 years. By 2038, recommendations or even consequential decisions. This most dangerous, repetitive or routine labour jobs will will give rise to many new and challenging questions, be done by robots; lawyers, accountants and doctors for which the current law does not have a clear answer. will work side by side with digital assistants; human For example, what are the decisions that can be made decision-makers in businesses, governments and even by computers, and what are the decisions that must battlefields will be assisted or replaced by algorithms be made by human decision-makers? When a human based on artificial intelligence (AI) and machine learning. makes a decision, to what extent can that person rely Without a doubt, these technologies and the resulting on recommendations made by a computer? social and economic changes will have a profound As to the decisions made by AI, impact on our laws and legal systems. what legal rights does the person So how will the legal landscape look like in 2038? who is subject to the decision have? Here I offer four bold predictions. And if the decision goes wrong, who should be held liable? Our current Data protection law laws have been evolved with First, data protection law will be elevated to a dominant humans in mind. As such, they are (if not the dominant) position, thanks to the pervasive- not equipped to deal with cognitive ness of data in our lives. In fact, to a large degree, this machines which can make decisions is already happening. With or without our knowledge By 2038, and take actions by themselves. or consent, massive amounts of personal data are most New legal principles and rules will being collected through electronic devices and then dangerous, need to be created. processed and fed into machine learning algorithms, repetitive generating further information and insights. If we do or routine Employment law not put adequate laws and regulations in place, our labour jobs Third, employment law will need privacy may be breached, our identities and financial will be done serious revamping. Currently, our information may be stolen, and even our political votes by robots; employment laws divide workers may be manipulated. lawyers, into “employees” and “contrac- Today, over 100 countries have established designated accountants tors”, each having different rights data protection agencies, dealing with the increas- and doctors and responsibilities. In the future, ing need for data protection. For example, the UK will work however, more and more people Information Commissioner’s Office employs more than side by side will participate in the “gig” econ- 400 staff and handles over 20,000 complaints each year. with digital omy such as Uber and Airbnb. New On the legislation front, the European General Data assistants laws and policies need to be made

68 LAWTALK 917 · May 2018 MEDIATION

MEDIATION Embracing to offer appropriate protections to Diversity those workers. Negligence diminishes Part 3 – Why are Finally, the importance of negligence will diminish, or even disappear. we different? In the past, the law of negligence allowed consumers to seek legal BY PAUL redress directly from those who pro- SILLS vided defective products or services. However, this has become increas- ingly ineffective and cost prohibitive habitual – unconscious, repetitive, in many cases. In the future, more Humans are diverse and differ- conditioned reactions to external and more goods and services will ent; a collection of individuals stimuli (including people). be based on digital technologies, inhabiting the planet and all Most of our conditioning occurs making it difficult or impossible for competing for our share of what’s between five months in utero and an ordinary consumer to prove the available. the age of six, when our conscious existence of negligence. As such, we The previous article in this series minds are not developed and we are likely to see an expansion of the (LawTalk 916, April 2018, page 29) have no independent ability to strict liability approach in this field. posited that this statement is true, decide what we wish to accept as and also not true. To understand being true for ourselves. Rather, our Obviously, the above predictions that paradox it is necessary to environment and the conditioning are far from certain. However, examine diversity on two different of those around us are the key it does seem safe to say that the levels: our experience of being part influences on how our identities legal landscape in 2038 will look of a complete whole, and diversity form. Numerous examples exist: very different from today. It is as part of the human condition. The how we vote, our religious beliefs, vital that lawyers, governments, previous article discussed the unity the tribes we belong to – all follow and academics tackle these mat- aspect. This article deals with diver- clear lines of inter-generational and ters today, given the speed of the sity as part of the human condition. tribal conditioning and all mould us. development and introduction of Why do we judge others, belong Taking a step back, there are two new technologies. The forthcoming to groups and identify with one parts to our mind: the conscious Legal Research Foundation Law & form of religious expression but mind and the subconscious mind. Technology Conference in June in not others? Why do we express The conscious mind is connected to Auckland will address a number ourselves so differently and view the world around us through our of the above issues and will offer those who are not “the same” with senses. We grow up being taught important insights to those who see suspicion or worse? Where does our to live through our senses to gather the need to grapple with these rev- diversity of expression come from? information. In these formative olutionary concepts sooner rather The answer lies in our years everything we see, taste, than later. As has been said, lawyers conditioning. touch, smell and hear is absorbed will not be replaced by robots in the “All our life, so far as it has definite directly into our subconscious mind. near future, probably may never form, is but a mass of habits.” We inherit the habits and paradigms be. However, lawyers who do not — William James of our environment and the people understand and apply technologies “We are what we repeatedly do.” closest to us. The vast majority of will be replaced by those who do. ▪ — Aristotle us carry this same conditioning A habit is an idea that is fixed in through our entire lives. Everything Dr Benjamin Liu  b.liu@ our subconscious mind and causes we experience through our senses auckland.ac.nz is a senior lecturer us to act without any conscious tends to reinforce our conditioning. at Auckland University where he thought. A paradigm is a collection Our subconscious mind will teaches, among other things, the of habits. Our paradigms cause our express whatever is impressed upon law and policy of artificial intelli- habitual behaviour. As much as 95% it. It is not deductive and accepts gence and financial markets law. of our reaction to events in life is as true for us anything that we are

69 MEDIATION

able to impress upon it from our conscious mind and our thinking. The expression of our subconscious mind then becomes our actions and behaviours – the results of our life. Our subconscious mind is the engine that generates what we feel and how we act. Our conditioning is a key part of our ego/identity – it creates the person that we think we are and is the place where our judgements come from. Without intervention our identity becomes a closed loop and we will unconsciously react the same way to similar external stimuli over and over for the duration of our life. We have known this for thousands of years, but the West has been slow to understand its importance. “The thought manifests as the word; The word manifests as the deed; The deed develops into habit; And habit hardens into character; So watch the thought and its ways with care, And let it spring from love Born out of concern for all beings… As the shadow follows the body, As we think, so we become.” — Buddha, Dhammapada Indian philosopher & religious leader (563-483 BC) How we are educated and taught to strong sense of the individual has become a key part associations we identify with and think in the West plays a large part of our conditioning and means that we are trained from think define us are actually the cause in our conditioning and ultimately a young age to see ourselves as separate and different. of the expression of diversity and the our judgement of others. Our focus Our judgements come from this conditioned space. It is reason we are so quick to judge those is on rational thinking which has our individual identity, our ego, that dictates how we who we perceive as different to us. its origins in Greek philosophy and see the world if we let it. And we will unconsciously “let Instead of judgement we should in particular the work of Aristotle, it” unless we consciously intervene in our conditioned simply be seeking to observe and Plato and Socrates. Greek philosophy thinking processes. Cognitive behavioural therapy is understand what is going on. When introduced us to critical analysis and based on this interplay between the conscious and we judge we do not learn anything deductive reasoning (the process of subconscious mind (essentially how we think, feel new, and we make it more difficult applying logical principles to given and act). to move toward mutually acceptable premises or general facts to derive So, it is our predominant thoughts, feelings and resolutions to conflicts. ▪ a specific fact). emotions that form our identity, our culture and our This way of thinking has had a judgements. It is the way we look at others and situations Paul Sills  paul.sills@paulsills. deforming effect on Western cul- that dictate what we see around us and what happens co.nz is an Auckland barrister ture and education and has encour- to us. Our lives become self-fulfilling because of the specialising in commercial and aged the West to be an individualist conditioned way that we think and feel on a daily basis. civil litigation. He is also an expe- versus collectivist society. This It is a paradox of the human condition that all the cultural rienced mediator.

70 LAWTALK 917 · May 2018 LAWYERS COMPLAINTS SERVICE

LAWYERS COMPLAINTS SERVICE

Complaints Resolution Summaries

Timothy Slack Diane Faye the falsity of the certificates presented to the Law Society. These included timely struck off the roll Low censured resolution and co-operation, the purchase of a new digital system, engagement of a The New Zealand Lawyers and and fined consultant lawyer to oversee accounts, and Conveyancers Disciplinary Tribunal has engagement with a cognitive behaviour ordered that Timothy Upton Slack be struck Orewa lawyer Diane Faye Low has been therapist to address avoidant behaviour. off the roll of barristers and solicitors. censured and fined $8,000 by the New “The trust account is in place to protect He admitted a charge that, having Zealand Lawyers and Conveyancers the funds of the public. It is vital there- been convicted of an offence punisha- Disciplinary Tribunal. fore that the public have confidence in its ble by imprisonment, that conviction She has also been ordered to pay total integrity and that practitioners adhere to reflected on his fitness to practice, and/ costs of $12,856, to engage and pay for a the rules and regulations governing,” the or tended to bring the legal profession consultant lawyer for two years to under- Tribunal said. into disrepute. take a monthly review of her trust account The charge was brought by the New and countersign the monthly certificates Zealand Law Society’s National Standards as to accuracy, and to undertake a Trust Committee. Account Supervisor Refresher Course. Bohsoon (Brent) Mr Slack was sentenced in the High Mrs Low admitted a charge of miscon- Court at Auckland on 26 September 2017 duct which related to issues with her Kang fined for to 10 months’ home detention after he practice’s trust account. These included had pleaded guilty on 22 August 2017 to failure to reconcile the trust account unsatisfactory one representative charge of obtaining with the trust ledger, failure to complete by deception (section 240 of the Crimes monthly reconciliations, failure to keep conduct Act 1961). proper records, overdrawn trust account He was one of four men charged in a seri- ledgers for 74 clients, and failure to report Auckland lawyer Bohsoon Kang has been ous fraud relating to an Auckland develop- to clients on 64 dormant balances. fined $5,000 by the New Zealand Lawyers ment project. The charges related to making She wrongly certified to the New Zealand and Conveyancers Disciplinary Tribunal false statements in order to Law Society that she had correctly recon- after a finding of unsatisfactory conduct. obtain a credit facility from a ciled the trust ledger with corresponding Mr Kang has also been ordered to pay bank to allow a company to trust bank accounts and also wrongly the New Zealand Law Society’s total costs develop an apartment hotel. certified monthly that the trust account of $16,299.20 and to undertake a Trust “Following offending of records were a complete and accurate Account Supervisor Refresher Course as this magnitude, it is almost record of the transactions taking place. soon as practicable and within the next inevitable that a practitioner This had spanned a number of years. 12 months. will be struck off the roll,” Mrs Low also advised clients that she New Zealand Law Society reviews of New Zealand Law Society had professional indemnity insurance Mr Kang’s firm’s trust account in 2008, President Kathryn Beck without specifying that it did not meet 2012 and 2016 identified breaches of the says. minimum standards set by the New Lawyers and Conveyancers Act 2006 “Mr Slack’s actions have Zealand Law Society. and regulations and he was required to let the whole legal profession The Tribunal said it was accepted there remedy the shortcomings in his trust down. There is no place in was no dishonesty in any of Mrs Low’s account practices. A further inspection in practice for a lawyer who has conduct apart from the filing of false cer- 2017 identified a number of deficiencies in been party to such a serious tificates with the Law Society. his trust accounting records and practices. level of deception.” It said she was fortunate to have avoided These included issues with monthly Mr Slack did not oppose a period of suspension. It accepted there reconciliations and account imbalances, his striking-off. He is also were strong mitigating factors that coun- failures to report to clients and failures to required to pay total costs terbalanced the aggravating factors of the address unpresented cheques. of $1,810 to the Law Society. length of time the offending occurred and The Tribunal noted that Mr Kang had

71 LAWYERS COMPLAINTS SERVICE May 2018 · LAWTALK 917

admitted under cross-examination that he calculate the amount to be refunded to that the costs order may be enforced in was not familiar with the trust accounting Mr and Mrs Burley. the District Court. regulations at the time and was in need “The partners did not do so. Instead, it of good familiarisation. He had accepted seems, they did nothing but deny they that he did not focus on the requirements were liable to refund any amounts,” the Failed to honour seriously enough and had now realised the committee said. extent of his obligations. “The partners had every opportunity to agreement object to the finding made by the LCRO or to seek an amendment of the LCRO’s Boon Gunn Hong has been censured and Lawyers decision. fined $7,500 for unsatisfactory conduct by “The partners instead objected to the a lawyers standards committee. responsible for jurisdiction of the LCRO and the process Mr Hong was acting for a client who had followed by the LCRO. separated from his wife. partnership “To suggest that the LCRO has no power A dispute arose about the meaning of to make such orders under the [Lawyers a Family Court decision and the effect obligations and Conveyancers] Act [2006] would that would have on distribution of the seriously undermine the purpose of the residue of the proceeds of the sale of two [Names used in this article are fictitious] LCRO to review decisions of the standards residential properties owned by the client committees,” the committee said. and his former wife. All lawyers must take personal responsi- The client complained to the Law Society bility to ensure professional obligations are LCRO review that Mr Hong failed to account to the adhered to, the Legal Complaints Review Quinion and Hutley sought a review of the client for trust monies held on the client’s Officer (LCRO) said when confirming a committee’s decision. behalf, and failed to file an application to lawyers standards committee decision. In LCRO 227/2016 (6 November 2017), the Family Court seeking clarification as The committee fined all three partners of the LCRO confirmed the committee’s to whom the disputed funds belonged, a law firm (firm A) $3,500 each for failing determination. within six months of being instructed to. to comply with an LCRO order. Quinion and Hutley said that they did In his response to the standards com- In February 2013 the LCRO ordered not realise the duty to comply with the mittee, Mr Hong said that his client did a lawyer employed by firm A to reduce LCRO decision rested with them as indi- not want to incur any further legal costs his fees to Mr and Mrs Burley to $7,000 viduals nor that they were exposed to on the dispute about the balance of funds. including GST and disbursements. This was sanctions for failing to do so, the LCRO said. Mr Hong also said that the client had a refund of $10,423. In response the LCRO said, “All lawyers continuously harassed him to complete The LCRO noted that the lawyer was must make sure they are aware of their the matter, despite the fact that he had no longer employed by firm A. The LCRO professional responsibilities in whatever advised the client to go to another lawyer also said that if the parties were unable to capacity they practise in the profession as he was “bogged down with other work”. agree the amount to be refunded, leave was of law. No other person has a duty to When the client and his parents contin- granted to apply to the LCRO for the matter make sure that they have the requisite ued “pestering” him, he wrote to the client to be determined and the order amended knowledge.” saying that he would file the application to record the amount to be repaid. All lawyers “must assume personal within six months but told the client not In October 2015, Mr Burley wrote to the responsibility for their professional obli- to come to his office again or he would Lawyers Complaints Service advising that gations and (in this case) partnership obli- stop acting for him. firm A had failed to comply with the order. gations (to ensure payment was made)”. When the client continued to threaten The complaints service treated the letter The LCRO also said that a failure to to come to the office, Mr Hong issued him as a complaint against each of the three comply with disciplinary orders “must with a trespass notice. partners of the firm, the managing part- be viewed seriously”. The standards committee noted that it ner, Westlock, and the two other partners, “I accept the applicants failed to appre- was not uncommon for disagreements to Quinion and Hutley. ciate they were exposed to disciplinary arise between lawyers regarding the proper consequences for themselves, but their interpretation of a judgment. Committee decision failure to do so is not something that is What was concerning, however, was that A standards committee found unsatisfac- in their favour.” Mr Hong had taken “no meaningful steps” tory conduct by the trio, and as well as the As well as confirming the standards to progress matters. fines of $3,500 each, ordered each partner committee determination, the LCRO “The standards committee could find to pay $1,000 costs. ordered Quinion and Hutley to pay $1,600 no plausible explanation for Mr Hong’s The committee noted that firm A’s part- costs, noting that the order was against inaction,” it said. ners had all the relevant information to the applicants jointly and severally and “It was no excuse for Mr Hong to claim

72 LAWTALK 917 · May 2018 LAWYERS COMPLAINTS SERVICE

that he was unable to attend to the matter service provider, IP. The letter identified acting for D and that the intention of the at the time because he was ‘bogged down several TV channels over which D claimed first letter had been to inform IP about the with other work’. copyright and set out its concerns about possible legal issues. In the letter, Harmon “The matter was clearly urgent and Mr one of IP’s users operating a website apologised if the letter had been taken as Hong was obliged to see matters through which provided free streaming without a threat. to completion. D’s approval. When Harmon did not pay, Ms Neckett “The matter had been ongoing for a Harmon asked IP to immediately disable complained to the Law Society on behalf number of years and [the client’s] increas- the website, immediately cease operating of IP. ing frustration is understandable. Indeed the website and confirm its intention to do [the client] patiently waited …. and finally so if it was indirectly involved as defined The decisions … elicited a confirmation from Mr Hong in the Copyright Act. A lawyers standards committee considered that he would file the application within the complaint. It said it was “concerned six months. The threat to note the tone at the penultimate para- “Mr Hong failed to honour that Harmon’s letter concluded with the fol- graph,” and recorded that the committee agreement.” lowing paragraph, later described by IP “takes a stern view on such issues”. As well as the censure and fine, the com- in its complaint as a threat made for an However, it noted that Harmon’s second mittee ordered Mr Hong to compensate improper purpose: letter clarified that the primary intention the client for reasonable legal costs he “Our client demands that you undertake was not to make a threat. The committee incurred in instructing counsel to apply the above actions by [x date] and send us decided to take no further action on the to the Family Court for elucidation of the confirmation to that effect with the signed complaint. division of funds. The committee also agreement on or before that date. If we do The LCRO found, however, that Harmon ordered Mr Hong to pay $1,000 costs. not receive a notification on or before such “threatened to allege to police that [IP] was On review, the Legal Complaints Review date, our client instructed us to report this guilty of a criminal offence. That is conduct Officer confirmed the censure, the $7,500 matter to the police commissioner who of a type envisaged by r 2.7 of the Rules.” fine and the compensation order. The LCRO will immediately cooperate with us to Harmon made the threat in order to also ordered Mr Hong to pay $1,200 costs. bring this case to justice with maximum overbear IP’s free will, and that was threat- In directing publication of Mr Hong’s effect. Our client may also simultaneously, ening for an improper purpose. name, the committee said it was of the without any further notice, take an action “I disagree with the committee’s view, view that “Mr Hong had severely failed his against you for civil proceedings to obtain which is inconsistent with the strict view client in a manner which ought to be made compensation for the damages our client it says it takes. The fact that [Harmon] later known to the public and the profession”. suffered due to all your illegal actions in apologised and explained does not neces- breach of the Act.” sarily mean his conduct was excusable. In Ms Neckett, IP’s office manager, wrote to my view the committee should at least Fined for Harmon expressing IP’s belief that Harmon have addressed [Harmon]’s conduct in the had contravened rule 2.7 of the Lawyers context of whether it was a contravention threatening for and Conveyancers Act (Lawyers: Conduct of r 2.7.” and Client Care) Rules 2008 (the Rules). Harmon’s conduct was, however “well improper purpose Ms Neckett requested a formal written short of the most serious of its kind,” the apology and payment of $3,920 compen- LCRO said in reversing the standards [Names used in this article are fictitious] sation for stress and worry caused and for committee decision and fining Harmon legal costs incurred. $1,000. The LCRO also ordered Harmon A lawyer who made a threat for an Harmon replied saying he was no longer to pay $1,200 costs. improper purpose was guilty of unsatis- factory conduct, despite maintaining that he had done nothing wrong. Trusted practice management The Legal Complaints Review Officer (LCRO) made this finding in LCRO 8/2014 software for NZ lawyers (16 October 2017) and fined the lawyer, Easy to learn, easy to use. Save time and Harmon, $1,000. This reversed a decision ! of a lawyers standards committee to take increase profits. That’s what users say no further action on a complaint. New: Document management & Internet banking. Free installation and Harmon acted for an entity, D, which had training. Visit our website for testimonials from firms just like yours. invested around $300,000 to buy rights to foreign television shows. www.jpartner.co.nz [email protected] 09 445 4476 JPartner Systems Ltd Harmon sent a letter to an internet

73 PRACTISING WELL May 2018 · LAWTALK 917

PRACTISING WELL Brain School, now accepting expressions of interest

BY KATIE COWAN

that we are, basically, right. (Please refer: I sometimes dream about the curriculum I would teach politics.) children and adolescents if I were designing a school system from Technically, we know that humans are, scratch. It is fun and I will not hear otherwise. of course, not always right, and our brains I would teach kids how money works, how different societies misrepresent and mislead and distort real- make sense of the world, how to cook and sew, and twice a day ity for us all the time. The problem is that we would make those baking soda volcanoes all kids on American even though we know that, theoretically TV make. But maybe half of my curriculum would be devoted and cognitively, we still feel like we’re to how our brains work: biases, heuristics, stress, advertisers’ right, often even when we’re presented exploitations, emotional regulation, how the body and mind with clear evidence we are not or can list interact. It would be so much fun. all the known cognitive biases. (Don’t beat I get so excited dreaming of Brain School™ because I had to learn yourself up about this; it is our humanity all of this stuff much later, when I was already pretty damaged that does it, not a moral flaw on your part.) by misinformation and cultural assumptions about brains and Since the Enlightenment we have emotions and personhood. By that point it was much harder to persisted with this myth that humans believe the science because my brain’s starting point was always, are rational. It is the basis of economics “You are terrible because you feel bad. You and modern government. But we are not feel bad because you are terrible. That is rational; we are rationalising. We can all there is to know. You do not deserve a rationalise anything. We are, of course, baking soda volcano.” capable of great rationality, but it’s not I am here to tell you (and my own brain) The average necessarily our default. We would know that that is not all there is to know, and I do person, and this if anyone had ever told us how brains deserve a volcano. But thinking otherwise certainly work (hence the need for Brain School™). is a shadowy force behind the peculiar the average A big problem arises when you believe issue of lawyers and their sky high rates lawyer, does that you are by nature rational, but you of anxiety, depression, substance abuse and not understand also happen to feel anxious or depressed other mental health disorders. their own brain or your emotions are too much and need As lawyers, we think we are right most and nervous to be numbed. of the time. We did a whole degree on how system, their own Which brings me back to high numbers to think and it took ages and at the end emotions, their of mental health issues faced by lawyers. we went through a formal ceremony in a own biases and There are many reasons why lawyers carry billowy robe where it was affirmed, in front heuristics, their this scourge, a big one being a culture in of friends and family and even a judge, that own relationship which we admire each other’s chronic we know how to think really well. with themselves. stress. But one reason that might get Of course, even before we were lawyers, These things overlooked is that on top of the ordinary we were humans, and humans think they are not taught, human assumption that what we think and are right most of the time too. Our brains and most of pop feel represents reality, we have an added have several functions that act to make us culture wildly... layer of professional training that affirms sure that what we think and feel represent misunderstands our thinking skills. We start to think, “If the truth, that our worldview is accurate, them. anyone would know they were unwell, it

74 LAWTALK 917 · May 2018 PRACTISING WELL

would be me. I am professionally trained in you raised Catholic?” Things that I think are pattern of thinking, my advice for lawyers getting to the truth.” normal and definitely true, a lot of other is always to seek help as soon as it occurs It doesn’t help that the types of thinking people think are bizarre and definitely to you to seek help; having that thought and emotional disordering we are talking wrong. break through all the rest of one’s brain’s about generally have existed in some form The average person, and certainly the business loud enough for you to notice throughout life, meaning it can feel that average lawyer, does not understand their it is an excellent sign that you’re at the this is just what life is like. To illustrate: own brain and nervous system, their own needing help stage. every psychologist I have ever seen has emotions, their own biases and heuristics, Because we can learn about our brains asked at some point, unprompted, “Were their own relationship with themselves. late, and feel a lot better. The most beautiful These things are not taught, and most thing about our extraordinary brains is of pop culture wildly, and I mean wildly, how plastic and re-makeable they are. It misunderstands them. is hard, but by learning how our brains and If you are wondering where to start, As a result, you can have some very related systems work, whether by working I suggest Thinking Fast and Slow sad, very anxious, very unhappy lawyers with a psychologist or by our own private by Daniel Kahneman, The Upward thinking either that suffering is what being study, we can significantly reduce our own Spiral by Alex Korb, or, if you have alive feels like, or that they deserve to feel suffering. And life, and lawyering, can then been through trauma of some kind, this bad because their brain (falsely) tells become a lot easier. ▪ In an Unspoken Voice by Peter them that they are bad. And then, they Levine. These books are all core don’t get help, because that would be Katie Cowan  katie@symphonylaw. texts in my curriculum, and can be disruptive/they don’t have time/it’s not co.nz is a former lawyer. She is now a purchased with your baking soda bad enough yet/mental illness doesn’t director of Symphony Law, a consulting and vinegar at the Brain School™’s happen to people like them/they don’t practice for lawyers. Katie hosts the New supply store. deserve help (says their brain), and so Lawyer podcast and writes on matters things get worse and worse. Knowing this affecting the legal profession.

75 LEGAL INFORMATION May 2018 · LAWTALK 917

LEGAL INFORMATION New Zealand democracy vulnerable to overseas trends, says Sir Geoffrey Palmer

BY LYNDA HAGEN

China has a leader who is in power as long The role of the Treaty of Waitangi is also Attacks on democracy around the as he lives. defined. world make it more important than ever “It’s not a very good outlook for liberal Sir Geoffrey says that other changes to protect New Zealand’s democracy with democracy. We don’t want the tendencies following the consultation included clearer a written constitution backed by judicial in other countries seeping in here – they definition of the Head of State role and powers, former Prime Minister and legal haven’t so far, but the risk is they will. The introductory sections explaining the prin- academic Sir Geoffrey Palmer QC says. trends in other countries come to New ciples of government and broad limits on Along with Law Foundation Chair Zealand, they just come a little later.” public power. Andrew Butler, Sir Geoffrey has recently New Zealand’s constitution is hard to He says that it is now up to others to published Towards Democratic Renewal find, being located in several statutes and take the conversation forward. (Victoria University Press), an updated other legal instruments – in fact, many “We don’t have a monopoly on wisdom, version of their proposed constitution people don’t realise we have a constitution, there are other good ideas out there. We for New Zealand. This followed a year- says Sir Geoffrey. just think there should be serious atten- long consultation on their first version, “One of the strongest arguments in this tion given to this. One of the problems is A Constitution for Aotearoa New Zealand, book is for the elements of democracy to that New Zealanders are a bit complacent attracting 440 submissions and attend- be better taught. It’s one of the reasons because we are removed from those areas ance by more than 3500 people at public we should give 16-year-olds the vote. In of the world that are in serious trouble. meetings. a democracy, legitimacy of government “Don’t think that democracy will con- Both books were backed by the Law depends on public support. If that withers tinue by being neglected – it won’t,” he Foundation, and are among several projects away, you are in serious trouble.” says. we have supported to stimulate constitu- The submissions led to many useful In the interests of stimulating a broad tional debate. Last year The Realm of New changes, Sir Geoffrey says. Their final discussion on New Zealand’s constitutional Zealand was published, an examination version, fully translated in te reo Māori, future, the Law Foundation supported of our constitutional underpinnings by is much shorter and focused on guiding former Attorney-General Paul East QC to Dame Alison Quentin-Baxter and Professor principles rather than prescriptive detail. write a critique of constitutional reform. Janet McLean. We also backed public Essentially, Mr East favours retaining awareness-raising events while the past Fundamental rights for all the status quo, apart from some limited Government’s Constitutional Advisory The Palmer/Butler constitution sets re-writing of our constitutional legislation Panel was deliberating. out fundamental rights for all citizens, to improve its accessibility. His article, The Sir Geoffrey says the well-attended meet- including some additional to those in Case for an Uncodified Constitution,will be ings he spoke at showed there was strong the New Zealand Bill of Rights Act 1990 published later this year. interest in the subject, particularly among such as environmental protection, living The Foundation will continue to support young people. But he was concerned at standards, labour relations and educa- the national conversation on this important the lack of public understanding of New tion. It establishes a Head of State, to topic. ▪ Zealand’s current constitutional arrange- be known as the guardian or kaitiaki of ments, which makes them vulnerable to the nation, and allows judges to strike Lynda Hagen  lynda@lawfoundation. erosion. out law that doesn’t comply with the org.nz is Executive Director of the “Democracy is on the defensive around constitution. But the judges don’t get New Zealand Law Foundation. Further the world – we have had Brexit, President the final say – the constitution allows information about the Law Foundation Trump, autocracies in Russia and Turkey, for a Parliamentary over-ride of judges’ and its grants can be found at  www. dangerous tendencies in Hungary, and now decisions, with a 75% majority of MPs. lawfoundation.org.nz.

76 LAWTALK 917 · May 2018 THE CASE AND THE STORY

THE CASE AND THE STORY Finnigan v New Zealand Rugby Football Union three decades on – preserving the story

BY SAM BOOKMAN

the case through litigation. The case was led by Sir Over 30 years have passed since the end of pro- Edmund “Ted” Thomas QC, later to become a judge of ceedings in Finnigan v New Zealand Rugby Football Union the Court of Appeal. But it was Rodney Hansen QC, later [1985] 2 NZLR 159. The case remains one of the most to become a High Court Judge, who Sir Ted credits with remarkable in modern New Zealand history: in 2008, formulating the litigation strategy: the lawyers argued a survey of Court of Appeal judges ranked it among that the case breached the requirement in the Rugby New Zealand’s top three landmark cases (see Susan Union’s own rules that it must act in order to “promote, Glazebrook “What Makes a Leading Case? The Narrow foster and develop” New Zealand rugby. The lawyers Lens of the Law or a Wider Perspective?” (2010) 41 claimed the decision to tour would instead bring the VUWLR 339). It remains a staple of introductory law game into disrepute. courses at law schools as an example of the role that The lawyers recruited two plaintiffs, Paddy Finnigan litigation can play in wider social and political disputes. and Phil Recordon (later to Last year, with funding from the Law Foundation, become District Court Judge Philip and support from the University of Auckland, I inter- Recordon), who were members of viewed some of the main participants and archived key Auckland rugby clubs. Their stand- documents from their personal files. The results of that ing was contested by the Rugby project have been made publicly available and edited Union and the case was struck out into a podcast. This podcast series explores the issue of by the High Court. But the plaintiffs public interest litigation in New Zealand through the were reinstated by the Court of story of one case: Finnigan v New Zealand Rugby Football The Finnigan Appeal, and sent back to the High Union, a case which challenged an All Blacks tour of litigation was Court. With time running out before South Africa. a successful the team’s departure, the lawyers attempt by successfully obtained an interim A quick recap a group of injunction preventing the All Blacks The Finnigan litigation was a successful attempt by a lawyers to halt from travelling, prompting the group of lawyers to halt the proposed 1985 All Blacks the proposed Rugby Union to admit defeat and tour of South Africa, which due to the apartheid regime, 1985 All Blacks cancel the tour before the matter was subject to a global sporting boycott. The 1981 South tour of South was finally decided. Leave to appeal African tour of New Zealand had led to widespread Africa, which the issue of standing was denied by scenes of civil unrest as protesters battled rugby support- due to the the Court of Appeal, and ultimately ers, and police were accused of excessive use of force. apartheid by the Privy Council in 1986. After political efforts by Prime Minister David Lange regime, was failed to persuade the Rugby Union to cancel the tour, subject to a Preserving the story about 30 lawyers met in Auckland to discuss legal global sporting There is a real risk that this case options. From that group, a team emerged to challenge boycott. may fall away into an obscure

77 historical footnote. The Finnigan case preservation and transmission to a new the attention of New Zealand in 1985, was closely bound up in the broader generation. much of its wider context has now been context of 1980s radical social change. During my research, I interviewed 15 forgotten. Reading the law report alone But many law graduates today, including participants involved in the case, many will not do justice to the case. The ratio this author, have no living memory of the of whom had never previously gone “on is restricted to its facts and, aside from 1981 or the proposed 1985 Springbok tours. record”. I talked to lawyers, activists, jour- some developments in standing and incor- Most millennials raised in cosmopolitan nalists, and even a then-member of the porated societies law, the judgments have Auckland or Wellington in the 1990s do Rugby Union’s governing council. I was rarely been cited in subsequent cases. not appreciate the historic significance granted access to many of their personal It is only through a process of legal of rugby contact with South Africa. The documents, some of which have remained archaeology – interviewing participants comments of Cooke J (as he was then), in files and boxes since the conclusion of and reviewing disparate files – that the that the case – being about rugby – was the proceedings. Thirty-three years on from significance of the case can be located. This one of “major national importance” that the decision, I found that the participants is true in both a historical and a legal sense. “affects the international standing of New from both sides were willing to speak freely The case is a snapshot of an extraordinary Zealand”, are difficult to comprehend in about their experiences. moment in New Zealand social history, today’s New Zealand (Finnigan [at 179]). emblematic of the wider fault lines emerg- And yet, lawyers with first-hand What is so remarkable? ing in New Zealand society: progressive vs involvement in or memory of the case The great legal historian Brian Simpson conservative; urban vs liberal; traditional will attest to its importance. Finnigan is a once commented that “[y]ou cannot vs multicultural. Participants explained to unique instance in which a broad swathe understand litigation simply by reading me that there was a natural link between of the legal profession used litigation as a law reports” (AW Brian Simpson Leading the Finnigan case and later landmark public means of influencing government policy. Cases in Common Law (Oxford University interest litigation, such as New Zealand The plaintiffs were lawyers; the funders Press, 1996, at 11-12). Instead, he suggested Māori Council v Attorney-General [1987] were lawyers; and, of course, the lawyers that to understand a case it must be treated 1 NZLR 641 (CA). Indeed, Chief Justice were lawyers. like a “legal archaeology”, looking to as Dame Sian Elias acted as counsel on both The Finnigan story is one that has the wide a range of sources as possible and occasions. potential to inspire future generations of trying to understand the judicial process Throughout the interviews, it was striking lawyers, or at least spark debate about the in light of the wider social and political to hear the extent to which the participants role that the profession can play in con- context. viewed themselves as part of this cultural temporary society. I believe it is worthy of Although the Finnigan case dominated collision. Tom Johnson, a then councillor of

78 LAWTALK 917 · May 2018 THE CASE AND THE STORY

◂  Pauline Smith bnd the Rugby Union, described it as a clash “between the egalitarian the case do influence what is happening. That’s how the law old colonial New Zealand outlooks and attitudes, with the young changes and evolves and progresses and reflects what is going coming through with a much more idealistic look”. Judge Recordon on in society”. told me that he was forced out of his rugby club for taking a stand against the tour. Almost all participants spoke of the abuse and vitriol Putting it on record they received – Paddy Finnigan even provided me with originals Most of the case participants who agreed to be interviewed have of anonymous death threats. A full inquiry into the case offers an generously allowed their interview transcripts to be placed on the accessible and fascinating snapshot into this divisive period of public record. They have been edited into a volume which has been New Zealand history. deposited in the Davis Law Library at the University of Auckland. Furthermore, a study of the plaintiffs’ strategies may be In order to make the Finnigan story accessible to a wide audience, instructive for future lawyers attempting strategic litigation. In the interviews have been edited into a narrated podcast which also my interviews with the plaintiffs and their lawyers, I learned about draws on audio archives supplied by Ngā Taonga Sound & Vision. It is the difficulty of recruiting plaintiffs with the requisite degree of freely available on the Law Foundation’s YouTube channel at https:// standing. I also learned that, in the view of both the plaintiffs’ www.youtube.com/channel/UCIQZhKLPefoqetWwCe8tuSw/playlist and and the Rugby Union’s lawyers, the key to the success of the case is pitched at the level of a non-lawyer or early law student. was the adaptable nature of it. The plaintiffs’ initial grounds of By recording the history of the Finnigan proceedings, the full argument were narrow and technical, and the case instead shifted impact of the case will be preserved for future generations of daily between grounds of contract, public and incorporated society social historians and lawyers. It is hoped that the materials will law which frequently overlapped. As the Chief Justice suggested eventually form the basis for a book chronicling the case and its to me, this reflected a wider philosophy of the fluidity between lasting impact. ▪ different branches of law: “public law is a construct which draws on private law principles”. Sir Ted Thomas explained to me that Sam Bookman is an LLM candidate at Harvard Law School. during the hearing, the case was essentially rewritten each night. He received a Law Foundation grant to enable research into It would not have succeeded but for this nimbleness. the Finnigan litigation in early 2017 and this was supported Perhaps most significantly, I found the interviews most by the University of Auckland Law School. fascinating because of the participants’ candidness about the reality of judicial reasoning. Most interviewees accepted that the judges who decided the case – particularly Cooke J in the Court of Appeal appointments and Casey J in the High Court – could not help but be influenced by the wider social LangtonHudsonButcher, specialist employment law and litigation firm, is pleased to and political environment in which they announce the appointment of Angela Evans and Ronelle Tomkinson as partners from were making their decision. They had been 1 April 2018. Both Angela and Ronelle are expert employment law practitioners and key members of the LHB team. witness to the chaos of the 1981 tour and news coverage of apartheid South Africa. Several interviewees also suggested that Casey J must have been moved by the dramatic testimony of Arnold Stofile, an PARTNER PARTNER anti-apartheid activist who gave evidence Angela was admitted in 2002, worked in a Ronelle was admitted in 2006, and joined magic circle firm for London, a full service LHB in 2009 from a leading full service firm at the hearing and was imprisoned on his firm in Auckland and joined LHB in 2008. In in Auckland where she worked in the tax addition to her employment law expertise, and employment teams. She has appeared return to South Africa. These reflections she has a commercial litigation background, in a number of the cases on which LHB has were particularly interesting in light of the has appeared in the Authority and in most been engaged and has a particular interest Courts where employment issues are heard, and expertise in the employment aspects of fact that many of the participants went on and is keen on the strategic and advocacy corporate transitions and compliance work aspects of employment law. (particularly the Holidays Act 2003). to become judges themselves. Strikingly, almost all participants agreed In addition to the above Partner appointments, Tess von Dadelszen and Susannah Maxfield have been appointed Senior Associates. Both Tess and Susannah have extensive that earlier anti-tour cases – particularly experience in all areas of employment law and industrial relations and both are skilled in Ashby v Minister of Immigration [1981] 1 negotiation, mediation and advocacy. NZLR 222 (CA) in 1981 – had been stronger. But it was not until 1985, when the social conditions were ripe, that the courts were ready to interfere with sporting contacts. SENIOR ASSOCIATE SENIOR ASSOCIATE

As Rodney Hansen J, the solicitor for the Tess has developed a particular interest Susannah has a strong interest in dispute in issues surrounding the Parental Leave resolution, restraints of trade issues and the plaintiffs and later a High Court Judge, and Employment Protection Act 1987, the management of poor performance. Her explained to me: “I do think that the social Holidays Act 2003, Health and Safety at background in a large commercial law firm Work Act 2015, and dealing with bullying has given her expertise advising on difficult conditions, attitudes, and just simply the and harassment claims. employment issues within significant transactions. way that you can kind of mould and shape

79 LAW IN PRACTICE May 2018 · LAWTALK 917

LAW IN PRACTICE But who owns that tattoo?

BY ANGHARAD O’FLYNN

recreations in a video game (James) Tattoos are one of the oldest forms of body mod- and in a movie (Tyson). ification in the world and have a rich history. In the LeBron case, a video game The earliest example scientists have of a tattooed company that released a basketball person is the European Tyrolean Iceman, Ötzi. His frozen, game featuring the player’s full mostly intact, body was found in a partially melted likeness and sport-wear company Alpine glacier in 1991. Nike both digitally replicated his Ötzi is covered in 61 tattoos spread all over his body. extensive tattoo work. James’ artist They vary in placement, design and size and it is thought says the companies are profiting off that, much like today, his markings were chosen for his work and he should have been either cosmetic, therapeutic or symbolic reasons. consulted and compensated for the Ötzi is around 5,000 years old. At his time of death the inclusion of his work in both the Iceman was in his mid-forties. He is a rare specimen as game and the advert. shortly after passing, his body froze in the mountain, In Tyson’s case, the artist sued preserving it and particularly his skin and tattoos. because he believes that he should Globally, tattoos are now fairly normalised and have been consulted before the incredibly popular. They also vary in size from entire (quite famous) tattoo that resides multi-coloured body suits detailing family history, to the on Tyson’s face was recreated (phys- more popular discreet work that can be easily hidden ically) for the movie Hangover 2. with symbolic meaning known only to the owner. The big question in both cases is whether the tattoo artists have any A niche medium say over how the work is recreated Professionally applied tattoos are drawn up and exe- and used, since both clients com- cuted by an artist trained to work on skin. Along with missioned and purchased the art an artistic talent, tattooists learn other skills during from the artist? an apprenticeship – like the study of human anatomy, Even though These cases are too complex to muscle movement and dermal ink application to create the artwork explore, but it shows that some the perfect piece for their client. is on a human tattoo artists want intellectual It is estimated that around one in five New Zealanders being, it’s property protection rights over has a tattoo and, much like Ötzi, they’re usually for either still (to their work after it has been commis- decorative, therapeutic or symbolic reasons. There will over-simplify) sioned, purchased and completed, be people in your office who have tattoos and you might a form of sometimes after years have passed. never see them or know about them. graphic work With the increase in popularity of anything with a grey applied to a Regulation of area under IP law, especially something so permanent canvas. tattooing here and artistic, comes an increase in previously unforeseen Currently, In Aotearoa, tattooing is not specif- complications. our law is ically mentioned in the Copyright if someone Act 1994. However, it does fit the Problems commissions ‘artistic work’ interpretation within Recently, two cases surrounding the intellectual property and pays, or the Act – should it need to be cat- rights of tattoos became apparent. agrees to pay, egorised. Even though the artwork American pro basketballer LeBron James and ex-boxer for a work then is on a human being, it’s still (to Mike Tyson were sued by their respective artists over they become over-simplify) a form of graphic differences over ownership of the tattoos and their the owner work applied to a canvas.

80 LAWTALK 917 · May 2018

 Roberto Berlim bnd ▸

“Currently, our law is if someone commissions and pays, or agrees to pay, for a work then they become the owner,” says intellectual prop- erty lawyer Kate Duckworth. In the world of tattooing, there is no formal training, in the traditional sense. Tattooing is a trade gained via an apprenticeship. The finer legal points are not usually addressed so, unless a mentor educates, or the apprentice digs through pages of copyright law for themselves, there is little to no education in this area. “Image ownership wasn’t really part of the conversation at the time [during his apprenticeship],” says Nathan McIntyre, who’s been working as a professional tattoo artist for around eight years. “It [image replication] was some- thing that I generally tried to avoid in the sense that I would prefer at the time to avoid recreating tattoos already done. “Though as far as band logos etc, it’s pretty tough to figure where the line is with that, though it’s common practice these days, if someone was after an artist piece by someone who’s not a tattooer, to ask permission for the use of the image.” The commissioning rule, as faces is clients who don’t turn up for their appointment The reality of image explained on the Copyright Council or change their mind at the last minute after a design ownership of New Zealand’s website, currently has been put together for them. What happens regarding Could a tattoo artist use any of the states that “Apart from dramatic and image ownership and recycling unused designs in these Copyright Act 1994 to sue a client literary works (except computer situations? should a tattoo they created and programs), copyright ownership “Sometimes I may use elements of an unused design applied be recreated digitally for a vests in the commissioner by for another project,” says Nathan. medium where profit is likely to be default.” “Specifically designs that are ubiquitous and don’t made? “No, unless they’ve reversed Fairly simple when compared to carry specific meaning, for example; I may have drawn a the commissioning rule,” says Kate other countries. lotus or a mandala [for a no-show] that I’m really happy Duckworth simply. Another issue every tattoo artist with. If that client doesn’t show up for their appointment

81 LAW IN PRACTICE May 2018 · LAWTALK 917

there’s a chance I’ll use that design in the future as the However, the problem of cultural appropriation has been aesthetic value of the design isn’t attached to anything raised with the United Nations and it is considering personal related to the client. Otherwise it gets binned/ introducing laws to safeguard culture and heritage. deleted.” “This topic of using the resources of other cultures To prevent any copyright issues in New Zealand, a has been around for a long time and there is talk that reversal of the copyright law needs to be acknowledged it does need its own protection because no intellectual and agreed to by both parties to be enforced and, while property law covers it, and neither does any other law. the artist could retain the rights to their design after There’s no law against being offensive, per se,” says Kate its been purchased, they can’t retain the rights to the Duckworth. canvas the design is on – skin. Which opens a whole new bag of worms. What should clients and artists do to protect their rights? Cultural appropriation “If you’re the client, you probably want to own the cop- Cultural appropriation has been a hot button topic for yright and use it again. If you’re the artist you probably many years. However, it is only recently that people have want to own it. If you’re the client; the default under begun vocalising their anger when misrepresentation New Zealand law is you own the copyright work and and aspects of a belief or heritage are disrespected and you can do what you want,” Kate Duckworth says. misrepresented, and Aotearoa is no stranger to the cul- The only legally binding option for the artist to retain tural appropriation of Māori culture. copyright is including a clause in their consent forms that In 2016, copies of Gottfried Lindauer portraits were reverse the copyright rule – which is almost unheard of. printed on shower curtains and sold (for just under $100 “[My] consent form essentially informs the client that per curtain) by the Fine Art America website. they are responsible for signing off on the design and are The collection of portraits, mostly of Māori elders aware of potential risks involved with getting the tattoo. and leaders, had fallen out of copyright due to age so I’m not sure if copyright falls under that responsibility there was no way to prevent Fine Art America using for the design,” says Nathan McIntyre. the artwork due to a lack of cultural and intellectual Consent forms addresses health and safety concerns property rights. due to the OSH issues that can accompany getting your In 2017/2018 a temporary facial tattoo, labelled “Maori skin pierced anywhere from 50 to 2,000 times per minute Face”, was marketed and sold as part of a Halloween with multiple needles, for hours at a costume online US store called Tinsley Transfers. The time. They rarely contain anything temporary tattoo, again, appears to have been based on specifically referencing copyright the full facial mokos on some of the Gottfried Lindauer law and reversal of the copyright portraits and, while offensive, can’t be legally pulled There are many rule in the artist’s favour. from sale, and are still available on the website. symbols from A reversal clause could poten- From the misuse of Māori designs to hakas being different cultures tially impact a tattooist’s clientele. performed in Italian car adverts and, of course, celeb- and faiths that Imposing a clause saying they retain rities with no connection to the country or its heritage are widely the right to any image they put on getting traditional artwork usually reserved for highly worn for the a client’s skin is an ultimatum that respected members in the Māori community, cultural concepts that most people will not feel comfort- appropriation is something many tattoo artists try to they represent able with. educate themselves, and their clients about. and I think that, “As a tattoo artist, I guess you have “I think cultural appropriation is a fine line to navi- done with taste to think about that when you’re gate,” says Nathan McIntyre. and respect for designing something and putting “Obviously, there are many symbols from different the origin, they it on someone, are you happy for cultures and faiths that are widely worn for the concepts can be okay… that [design] to be theirs?” says Kate. that they represent and I think that, done with taste and When it comes After sharing copyright infor- respect for the origin, they can be okay… When it comes to moko of any mation with Nathan, I asked him to moko of any kind, I personally prefer to leave it to kind, I personally if he would consider reversing those fluent in the visual language that is moko but, as prefer to leave it the copyright rule to protect his far as I’m aware, there is a cultural precedent for [it] in to those fluent images, “I think I would consider the form of kirituhi [tattooing].” in the visual it but would need more professional There currently aren’t any laws, either domestic or language that is advice involved with the wording of international, that protect cultural heritage and its use. moko something like that.” ▪

82 LAWTALK 917 · May 2018 CLASSIFIEDS · WILL NOTICES

Nicholson, Donna Joyce Stenhouse, Michelle Fran – aka Will Would any lawyer particularly in the Whangarei area Stenhouse, Fran Michelle holding a will for the above-named, of 1 Whangarei Would any lawyer holding a will for the above-named, Heads Rd, Onerahi, Whangarei, please contact late of 40 McLeod Road, RD 2 Kerikeri, born on 18 Ruchelle Liut, Public Trust: April 1962 at Tifton Georgia, United States of America, Notices  [email protected] who died at Bay of Islands Hospital, Hospital Road,  04 978 4847 Kawakawa on 30 January 2018 please contact Simone  PO Box 31543, Lower Hutt, Wellington Scully, Palmer Macauley Lawyers Kerikeri:  [email protected] Beattie, Nigel James  Preston, Paul Richard 09 407 0000 Horner, William  PO Box 576. Kerikeri 0245 Ma, Yunshang Would any lawyer holding a will for the above-named, Accountant, who died on 17 January 1998 at Auckland Moreton, John Dennis Hospital, Park Road, Grafton, Auckland, please Nicholson, Donna Joyce contact Marilyn Brooks, Public Trust, Whangarei: Stevenson, John Stewart Preston, Paul Richard  [email protected] Would any lawyer holding a will for the above-named, Smith, Grahame Frederick  09 983 5275 late of 57A Browns Bay Road, Browns Bay, Auckland, Retired Parks Groundsman, born on 29 March 1956, Smith, Noeleen Marjorie who died on 19 March 2018, please contact Rowena Stenhouse, Michelle Fran - aka Smith, Grahame Frederick Lewis, Lewis Callanan, Solicitors: Stenhouse, Fran Michelle Would any lawyer holding a will for the above-named,  [email protected] Stevenson, John Stewart formerly of Auckland and Dunedin and latterly of  09 479 5344 Oamaru, Paramedic, born on 18 September 1965, who Wynyard, Duiya Blundell  PO Box 35361, Browns Bay, Auckland 0753 died on 19 March 2018, please contact Nikki Canham, Dean & Associates, Solicitors, Oamaru:  [email protected] Wynyard, Duiya Blundell  Beattie, Nigel James 03 434 5128 Would any lawyer holding a will for the above-named,  PO Box 242, Oamaru 9444 late of Hamilton, unemployed, who died on 4 March Would any lawyer holding a will for the above-named, 2018, please contact Joanne Lovett, Franklin Law: late of 154 Seddon Street, Pukekohe, who died on 29 March 2018, please contact Jeff Holloway, Downie Smith, Noeleen Marjorie  [email protected]  09 237 0066 Stewart, Lawyers: Would any lawyer holding a will for the above-named,  PO Box 43, Pukekohe 2340 or DX EP77020  [email protected] late of Waiatarua, Auckland, who died on 25 February  03 477 2262 2018, please contact Mark Henley-Smith, Henley-  PO Box 1345, Dunedin 9054 Smith Law:  [email protected] Horner, William  09 818 6153  PO Box 20067, Glen Eden, Auckland 0641 Would any lawyer holding a will for or having knowledge of a surviving successor of the above- named, late of Papanui, Blacksmith, born in 1834, who died in 1905, who owned land at Hills Road, Redwood, Christchurch, please contact Kristi Law, The Property Group Limited  [email protected]  04 470 6116  86-96 Victoria Street, Wellington 6011

Ma, Yunshang Would any lawyer holding a will for the above-named, late of 11B Westglen Road, Ranui, born on 26 January 1979, who died on 2 February 2018, please contact SOUTHERN CROSS Zhenzhen Chen, Righteous Law CHAMBERS VACANCY  [email protected]  09 580 1083 A rare opportunity has come up for a barrister(s) to join the well  PO Box 2603, Greenlane 1546 established and serviced Southern Cross Chambers. Located on the 12th floor of the Southern Cross building on the Moreton, John Dennis corner of High and Victoria Streets, the office would suit either Would any lawyer holding a will for the above-named, a single barrister, or could be shared by two barristers with a late of Summerset Falls Care Centre Warkworth and generous secretarial work station outside the office. Comprising Waihi, Retired, born on 11 August 1933, who died on of a 12m x 3.5m space with windows running the length of the 7 March 2018, please contact Sarah Hawes, Wynyard room, the room is carpeted and there is opportunity to re-decorate Wood as preferred.  [email protected] Please contact Renata Gordon on 021 026 25807  09 969 1775 [email protected] for further details.  PO Box 204-231, Highbrook, Auckland 2161

83 LEGAL JOBS · CLASSIFIEDS May 2018 · LAWTALK 917

PRACTICE FOR SALE – PRIVATE CLIENTS

As part of an ultimate exit strategy the principal of this successful private client practice is selling a half share in the firm to a suitable buyer. The firm has a number of longstanding local and overseas clients, enjoys a significant proportion of repeat/annuity revenue and has many opportunities for expansion. Junior and Intermediate A buyer would ideally have property/commercial expertise to complement the practice and be eager to seize the opportunities Litigation Lawyers for growth. Gilbert Walker is a specialist advisory and dispute resolution The current principal will remain involved with the firm for the practice based in Auckland. We practise across a broad medium term. Some vendor finance available to suitable buyer. range of civil disputes, including commercial, construction, insurance, property, trusts and regulatory matters. We are Please contact the advertiser, in confidence, at: currently acting on a wide range of interesting and challenging matters for high profile clients. ▶ Confidential Advertiser No. 18-2 (c\- Christine Wilson) email: [email protected] We are seeking two lawyers to join our busy team, one with 1-3 years’ experience and one with at least 5 years’ experience. We maintain a low ratio of senior to junior JUNIOR BARRISTER lawyers. You can expect to work with each of our three AUCKLAND partners. All of our lawyers engage directly with our clients and appear regularly in court and in other dispute resolution Applications are invited for the role of Junior Barrister, to be forums. We work in an open and collegial environment. employed by two members of Bankside Chambers. Jason Goodall and Maria Dew are seeking a junior barrister to assist We are interested in hearing from candidates with an them in their practices. The ideal candidate will have completed outstanding record of academic and professional their professional legal studies course and have up to two years achievement. post qualification experience and an excellent academic record. Ideally, the successful candidate will be available to commence in Applications should be sent to: Martin Smith, Gilbert Walker, or around mid-August 2018. PO Box 1595, Shortland Street, Auckland, or emailed to [email protected] The role will involve a varied mix of commercial and civil litigation including interim injunctions, High Court trial work, employment law, human rights, medico-legal and professional misconduct. For further information about our firm, please Applications can be made in writing to Maria Dew and should contact any of our partners or sta, or visit our include a curriculum vitae and official academic transcript, website: www.gilbertwalker.com [email protected]. Applications close 15 May 2018.

REFEREES, DISPUTES TRIBUNAL

There will shortly be a process for the appointment of Referees in the Auckland Region. Members of the public are invited to submit the names of persons who are considered suitable for appointment as CROWN PROSECUTOR CHRISTCHURCH Referee.

Raymond, Donnelly and Co is the office of the Crown Nominations must be sent in writing or by email. Solicitor for Christchurch, based in Christchurch. They must contain the name, address, telephone number and email address of both the nominator A vacancy has arisen for a Crown Prosecutor. and the person being nominated. Once a nomination has been received, the person The role principally requires the conduct of jury trials who is nominated will be sent an application pack and other litigation on behalf of the Crown. with details relating to the position and how to apply for it. We invite applications from lawyers with previous criminal litigation experience who would preferably Nominations are to be made to the Principal Disputes have experience in the conduct of jury trials. Referee, Private Bag 32 001, Featherston Street, Wellington 6146, Ph: (04) 462 6695, or email: Terms of employment to be negotiated which will [email protected] reflect the experience and ability of the successful Nominations must be received by this office no later applicant. than 12 noon on Wednesday 16 May 2018.

Applications accompanied by a CV should be sent by email to: [email protected] or by post to: the Partners, Raymond, Donnelly & Co, PO Box 533, Christchurch by 8th May 2018.

84 LAWTALK 917 · May 2018 CLASSIFIEDS · LEGAL JOBS

IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL – CHAIR CALL FOR EXPRESSIONS OF INTEREST FOR APPOINTMENT AS AN Applications are invited from suitably qualified persons for appointment as chair of the Immigration Advisers Complaints and Disciplinary Tribunal supported by the Ministry of Justice. Environment Judge The appointment of chair is made under section 40 of the Immigration Advisers Licensing Act 2007. Auckland based The Tribunal considers matters about immigration advisers The Attorney-General wishes to hear from suitably qualified referred to it by the Registrar of Immigration Advisers and hears appeals against decisions made by the Registrar. persons who would like to be considered for appointment as an Environment Judge. In addition to appointment to that To become chair of the Tribunal you will have experience in professional occupation regulation and management. You position the successful candidate will also be appointed a will have an understanding of legal process and the rights District Court Judge. To be eligible for appointment candi- of natural justice and fairness. Importantly, you will have dates must have held a practising certificate as a barrister experience of evidence-based decision making and report or solicitor for at least seven years. writing. Appointments to the Environment Court are made by the Governor-General on the recommendation of the Attorney- A position description and application pack may be obtained from the Ministry website www.justice.govt.nz/ General following consultation with the Minister for the about/statutory-vacancies Environment and Minister of Māori Affairs.

Applications close on 25 May 2018. The Attorney-General is conscious of the value of increasing diversity on the District Court bench generally and therefore seeks to encourage expressions of interest from qualified women as well as those from under-represented ethnic groups. All eligible persons who complete an expression of interest form will be considered. Appointments are based on merit. The criteria for appointment include: • Demonstrated knowledge and wide application of the IMMIGRATION AND law, in particular the Resource Management Act 1991, PROTECTION TRIBUNAL and overall high quality as a lawyer demonstrated in a relevant legal occupation. FULL–TIME MEMBER (Auckland) • Personal qualities such as honesty and integrity, impartial- Applications are invited from persons wishing to be considered ity, good judgement and the ability to work hard. for appointment as a full-time member of the Immigration and Protection Tribunal (IPT) based in Auckland. • Excellent oral and written communication skills. The IPT is established under the Immigration Act 2009. The • The ability to absorb and analyse complex and competing purpose of that Act is to improve New Zealand’s immigration factual and legal material. system, and part of this improvement is streamlining the immigration appeal process by creating a single independent • Awareness and sensitivity to the diversity of New Zealand tribunal to consider all grounds for appeal together, where society. possible. • Knowledge of cultural and gender issues. The Tribunal consists of: • Chairperson, being a District Court Judge A copy of the document setting out the process and criteria • Members, being lawyers who have held a practising certificate for appointment and a copy of the expression of interest for at least 5 years or have other relevant or appropriate form are available at www.justice.govt.nz/about/statutory- experience (whether in New Zealand or overseas) vacancies/ Persons interested in appointment are asked to complete Further details and an application pack are available for an expression of interest form, provide a curriculum vitae the Ministry of Justice website www.justice.govt.nz/about/ statutory-vacancies and submit them to the Judicial Appointments Unit by 5pm on Friday, 25 May 2018. The closing date for applications is 25 May 2018.

85 LEGAL JOBS · CLASSIFIEDS May 2018 · LAWTALK 917

MĀORI LEGAL LAWYERS WHAIA TE ITI KAHURANGI Employment Relations

McCaw Lewis is a long standing Waikato law firm, Specialist assisting clients in six key areas – commercial property, As the South Island’s largest employer we employ over 10,000 people Māori legal, dispute resolution, workplace law and across a wide range of disciplines. Our People and Capability team is asset planning. responsible for supporting those who care for patients. It is a team that is continuing to transform and innovate the delivery of HR services to We are looking for three great lawyers to join our experts our people across the Canterbury Health System. in assisting a range of clients including iwi, hapū, trusts, About the role individuals and companies in all areas of the Māori legal arena, together with Workplace Law and relationship This is a rare opportunity for you to become part of our growing in house Employee Relations legal team. This is a permanent role responsible for property matters. Our Māori Legal Team advises clients providing specialist employment law advice to managers and executive across of range of areas Treaty of Waitangi settlement leaders, acting as an escalation point for our team of HR advisors negotiations, resource management, Māori Land, in complex legal matters and implementing the Canterbury DHB Waitangi Tribunal, governance issues and general Employment Relations [ER] and Industrial Relations [IR] programme. dispute work. Your day to day would be varied and involve the following: We are seeking: • Ensuring outcomes in ER and IR matters minimise legal and reputational risk SENIOR MĀORI LEGAL LAWYER • Ensuring leaders operate within and comply with employment law • 4-6 years’ post admission experience in the Māori and other relevant legislation legal arena • Advising in the resolution of contractual disputes, personal • Expertise in resource management is preferable grievances and disciplinary processes • Expertise and/or an understanding of Māori • Leading change in the creation and implementation of ER and IR governance matters is helpful best practice guidelines, systems and processes • Representing CDHB in union negotiations, mediations and • Strong file supervision and management skills employment law disputes • Developing and providing training on ER and IR matters MĀORI LAND LAWYER • Managing and participating in key organisational projects as an ER • 2-4 years’ post admission experience with Māori specialist land law Skills and experience • Expertise in resource management is preferable • Strong file supervision and management skills To be suitable for this position you will have: • ideally at least five years’ experience working in employment law DISPUTE RESOLUTION/MĀORI LEGAL • experience in working with unions and collective bargaining LAWYER • proven experience in providing high level advice which balances legal risk and strategic objectives • 0-2 years’ post admission experience • a desire to work with a great group of people who are committed to • Experience in relationship property, workplace putting people at the heart of all we do. law or any of the above Māori legal areas in which McCaw Lewis practices is preferable Our culture • Strong time management skills are essential • Care and respect for others. Manaaki me te whakaute i te tangata • Integrity in all we do. Ha-pai i a- ma-tou mahi katoa i runga i te pono Ideal candidates for these roles will have: • Responsibility for outcomes. Te Takohanga i nga- hua • Some proficiency in te reo Māori and tikanga Māori Benefits • Strong written and oral presentation skills • Strong time management and organisational skills You will benefit from a fantastic loyalty scheme (Something for You), flexible working arrangements and a genuine and ongoing focus on This is an opportunity to be part of a caring, experienced career development. and well established firm with exciting project work, How to apply valued clients and great opportunities. Come join the Apply online, or to find out more information, please whānau and enjoy life in the Waikato. contact Sarah Carnoutsos, Recruitment Lead, email: [email protected] Please submit your CV and cover letter to Applications are only accepted online. Chris Wano at [email protected]

86 CPD Calendar

PROGRAMME PRESENTERS CONTENT WHERE WHEN CIVIL LITIGATION

LITIGATION SKILLS Director: This highly regarded residential week-long advocacy training Christchurch 26 Aug - PROGRAMME Daniel McLellan QC course is open to applicants with at least two years’ litigation 1 Sep experience. It’s hard work, great fun and most participants 55 CPD hours Deputy Director: say it’s the most e ective value-for-money course they’ve Belinda Sellars ever attended! Applications close 6 June.

INTRODUCTION TO CIVIL Sandra Grant This workshop is an excellent opportunity for recently Wellington 15-16 Oct LITIGATION SKILLS Roderick Joyce QSO QC admitted practitioners to develop practical skills in civil Christchurch 26-27 Nov Nikki Pender litigation in an intense small-group workshop. You will learn 9 CPD hours Paul Radich QC how to handle a single fi le from beginning to end, be able Pru Steven QC to identify and understand the various steps in the process, James Wilding develop the practical skills you need to handle this and a range of other litigation fi les, competently and confi dently. COMPANY, COMMERCIAL AND TAX

MĀORI BUSINESS Chair: Māori collectives and iwi are major players in the New Wellington 27 Jun CONFERENCE: Matanuku Mahuika Zealand business landscape. This conference will take a close CONTEMPORARY LEGAL look at the practical and legal considerations to be aware ISSUES of, whether as part of or engaging with Māori collectives and iwi. It will cover structuring, tax, intellectual property, 6.5 CPD hours investment, social enterprise and more – plus two superb keynote speakers.

TAX CONFERENCE Chair: This year’s NZLS CLE Tax Conference, chaired by Denham Auckland 6 Sep Denham Martin Martin, will o er sessions focused on the most relevant tax 6.5 CPD hours developments and issues for lawyers, whether tax specialists or commercial or private client advisors, to ensure you keep abreast of the tax developments a ecting your clients.

CRIMINAL

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

INTRODUCTION TO Brett Crowley A practical two-day workshop covering the fundamentals of Auckland 20-21 Jun CRIMINAL LAW PRACTICE being an e ective criminal lawyer. This workshop will benefi t all practitioners wanting to be appointed to level one of the 13 CPD hours criminal legal aid list, and those recently appointed to level one.

EXPERT WITNESS Director: This practical two-day programme focuses entirely on Wellington 21-22 Jun PROGRAMME Terry Stapleton QC working with expert witnesses. You will receive mentoring from experienced faculty members and valuers from Deloitte 13.5 CPD hours on how to brief, examine and cross-examine experts. For Programme Partner: all litigators from civil, criminal, family and other specialist jurisdictions with at least fi ve years’ experience. Applications close 8 May.

YOUTH ADVOCATES Chair: Youth Advocacy is rightly considered a specialist area Auckland 27-28 Aug CONFERENCE Clare Bennett of practice. Advocates represent the most vulnerable participants in the criminal justice system and the work 12.5 CPD hours involves, at times, a marriage between the criminal law, youth justice principles and care and protection principles. This conference for appointed Youth Advocates will provide a great opportunity to keep up to date with developments in this specialist area and to further develop your skills and knowledge. EDUCATION

EDUCATION LAW 2018 Chair: Join us for Education Law 2018 featuring management & Auckland 7 May Patrick Walsh governance sessions: H & S; employment; Education Council Wellington 8 May 6.5 CPD hours update; access to students on school premises; and BoTs dealing with issues. Student issues covered are: jurisdiction, Human Rights/Bill of Rights, and restraint & seclusion.

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN FAMILY

ADVANCED LAWYER Chair: As lawyers representing children we hold a privileged Wellington 28 May FOR CHILD – OUT OF THE Usha Patel position, advocating for some of the most vulnerable COMFORT ZONE members of our community. With further changes on the horizon join us to be updated, consider modes of practice and 7.5 CPD hours receive insights to challenge yourself at the Advanced Lawyer for Child Intensive. GENERAL

EFFECTIVE POLITICAL Simon Ewing-Jarvie Lobbying is a key element of the democratic process – Webinar 15 May LOBBYING Hon Heather Roy everyone should be able to have some infl uence on issues that matter to them. Lawyers are often the fi rst port of call 1.5 CPD hours for advice in this area so take the opportunity to learn from two experienced experts to increase your understanding of the crucial aspects of planning and executing an e€ ective political lobbying campaign.

ELDER LAW 2018 Chair: Elder Law 2018 o€ ers a broad range of topics with a stellar Wellington 30 May Ingrid Taylor line-up of presenters. Discuss will be: tricky PPPR issues; Auckland 31 May 6 CPD hours cross-border tax; PRA reform issues for elders; undue infl uence etc; sunset relationships; disposal of deceased’s remains; best practice; and testamentary promises.

AUDITING – THINGS YOU Robert Buchanan This webinar will give a practical understanding of the audit Webinar 7 Jun NEED TO KNOW Craig Fisher and assurance environment, its interface with legislation and corporate governance practice, and how auditors do their 1.5 CPD hours work. It will also cover a number of important international and local developments in the area of fi nancial reporting and accountability, and their impact on corporate governance.

AML/CFT COMPLIANCE – Hnery Brandts-Giesen Lawyers and conveyancers must be compliant with their Webinar 13 Jun ARE YOU READY? Neil Russ obligations under the AML/CFT Act by 1 July 2018. This presents both conceptual and practical challenges for 1.5 CPD hours the profession. This webinar will provide an overview of the law and regulations and some practical advice in relation to carrying out Risk Assessments, developing and implementing a Compliance Programme, Client Due Diligence, Suspicious Activity Reports, Prescribed Transaction Reports and other critical aspects of the regime.

MEDIATION FOR Virginia Goldblatt Mediation knowledge and skills are an increasingly important Wellington 12-14 Oct LAWYERS PART A – plus either adjunct to legal practice. Many more clients are taking disputes UNDERSTANDING David Patten or to mediation (because it works) and the more that legal MEDIATION Geoff Sharp advisers know about how it works the better. In addition, practice as a mediator extends the service that lawyers can 14.5 CPD hours o€ er the public.

IN-HOUSE COUNSEL

IN-HOUSE LAWYERS – Sarah Owen In-house lawyers are faced with particular challenges. Webinar 22 May CONFLICTS OF INTEREST Andrea Vujnovich Bound by the ethical obligations common to the profession, plus distinct demands from serving a single client who is 1.5 CPD hours also their employer. This webinar considers some of the key confl icts of interests In-house practitioners may face and outlines some practical approaches to help address these issues. PRACTICE & PROFESSIONAL SKILLS

TRUST ACCOUNT Philip Strang To qualify as a trust account supervisor, you must complete Various Jul-Nov SUPERVISOR TRAINING 40-55 hours’ preparation, attend the assessment day and pass PROGRAMME all assessments. The training programme consists of self-study learning modules to help you prepare for assessment. 7.5 CPD hours

STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 2 5-7 Jul FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a Wellington 13-15 Sep PRACTISING ON OWN barrister, will be required to complete this course. (Note: Auckland 3 8-10 Nov ACCOUNT 2018 From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up.) Developed with the 18.5 CPD hours support of the New Zealand Law Foundation.

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

PROGRAMME PRESENTERS CONTENT WHERE WHEN PROGRAMME PRESENTERS CONTENT WHERE WHEN FAMILY PRACTICE & PROFESSIONAL SKILLS

ADVANCED LAWYER Chair: As lawyers representing children we hold a privileged Wellington 28 May MEDIATION PART B – Virginia Goldblatt This workshop has a special focus on, and is tailored to, the Wellington 24-26 Aug FOR CHILD – OUT OF THE Usha Patel position, advocating for some of the most vulnerable EDUCATION DISPUTES David Patten specifi c kinds of disputes that are typically encountered in COMFORT ZONE members of our community. With further changes on the Denise Evans the education sector. Participants will practise skills, and horizon join us to be updated, consider modes of practice and 15 CPD hours complete an assessment exercise, leading to a certifi cate of 7.5 CPD hours receive insights to challenge yourself at the Advanced Lawyer achievement. for Child Intensive. TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Auckland 19 Sep GENERAL ADMINISTRATORS training is for new trust accounting sta , legal executives, Hamilton 20 Sep legal secretaries and o ce managers. EFFECTIVE POLITICAL Simon Ewing-Jarvie Lobbying is a key element of the democratic process – Webinar 15 May LOBBYING Hon Heather Roy everyone should be able to have some infl uence on issues 4 CPD hours that matter to them. Lawyers are often the fi rst port of call 1.5 CPD hours for advice in this area so take the opportunity to learn from PROPERTY two experienced experts to increase your understanding of the crucial aspects of planning and executing an e€ ective PRA S 44 CLAIMS – FROM Vivienne Crawshaw This webinar will consider key developments under s 44 Webinar 24 May political lobbying campaign. FRAUD TO KNOWLEDGE of the PRA, including trust busting when you don’t have a marriage, analysis of the issues emerging from recent case ELDER LAW 2018 Chair: Elder Law 2018 o€ ers a broad range of topics with a stellar Wellington 30 May 1.5 CPD hours law and the practical implications for your clients. Ingrid Taylor line-up of presenters. Discuss will be: tricky PPPR issues; Auckland 31 May 6 CPD hours cross-border tax; PRA reform issues for elders; undue infl uence etc; sunset relationships; disposal of deceased’s PROPERTY LAW Chair: The Biennial Property Law Conference will provide Auckland 18-19 June remains; best practice; and testamentary promises. CONFERENCE Debra Dorrington practitioners, at all levels, with an unmissable opportunity for CHANGE: IT’S two days of stimulating engagement on topics of essential AUDITING – THINGS YOU Robert Buchanan This webinar will give a practical understanding of the audit Webinar 7 Jun INEVITABLE! importance and interest in the property law fi eld. NEED TO KNOW Craig Fisher and assurance environment, its interface with legislation and corporate governance practice, and how auditors do their Members of the NZLS Propertly Law Section are entitled to a 13 CPD hours $100 discount off their conference registration fee. 1.5 CPD hours work. It will also cover a number of important international and local developments in the area of fi nancial reporting and accountability, and their impact on corporate governance. PRA INTENSIVE – Chair: Relationship property law in New Zealand continues to Auckland 20 Jun KEEPING AHEAD OF THE Amanda Donovan evolve and adapt rapidly. This intensive will look at the AML/CFT COMPLIANCE – Hnery Brandts-Giesen Lawyers and conveyancers must be compliant with their Webinar 13 Jun PACK recent Supreme Court decision Scott v Williams, both the ARE YOU READY? Neil Russ obligations under the AML/CFT Act by 1 July 2018. This legal implications, as well as forensic accounting analysis. It presents both conceptual and practical challenges for 6.5 CPD hours will delve into contemporaneous relationships, update you 1.5 CPD hours the profession. This webinar will provide an overview on the PRA and trusts and provide practical tips and tricks of the law and regulations and some practical advice in to ensure your practice and procedure are up with the play. relation to carrying out Risk Assessments, developing and implementing a Compliance Programme, Client RESIDENTIAL PROPERTY Lauchie Griffi n This small group intensive workshop o ers you the Christchurch 16-17 Jul Due Diligence, Suspicious Activity Reports, Prescribed TRANSACTIONS Nick Kearney opportunity to be guided step-by-step through the Wellington 30-31 Jul Transaction Reports and other critical aspects of the regime. Michelle Moore conveyance of a stand-alone fee simple residential dwelling, Auckland 13-14 Aug 13 CPD hours Duncan Terris a cross-lease dwelling and a unit title property. MEDIATION FOR Virginia Goldblatt Mediation knowledge and skills are an increasingly important Wellington 12-14 Oct Hamilton 27-28 Aug LAWYERS PART A – plus either adjunct to legal practice. Many more clients are taking disputes UNDERSTANDING David Patten or to mediation (because it works) and the more that legal TRUSTS AND ESTATES MEDIATION Geoff Sharp advisers know about how it works the better. In addition, practice as a mediator extends the service that lawyers can TRUSTS AND THE PRA – Andrew Watkins This one-day interactive workshop will arm you with the Dunedin 8 May o€ er the public. 14.5 CPD hours IS THE CASTLE STILL Simon Weil knowledge required to face the challenges of managing Christchurch 9 May STANDING? your client’s expectations in respect of potential PRA issues, trusts and related structures. Join this workshop and develop Wellington 10 May IN-HOUSE COUNSEL Hamilton 15 May 6.5 CPD hours strategies to withstand challenges in this ever-changing environment. IN-HOUSE LAWYERS – Sarah Owen In-house lawyers are faced with particular challenges. Webinar 22 May Auckland 16 May CONFLICTS OF INTEREST Andrea Vujnovich Bound by the ethical obligations common to the profession, New Plymouth 17 May plus distinct demands from serving a single client who is 1.5 CPD hours also their employer. This webinar considers some of the key WILLS AND ESTATES Vicki Ammundsen When clients are contemplating making their wills, the Webinar 6 Jun confl icts of interests In-house practitioners may face and Stephen McCarthy distribution of assets may make perfect sense to them but outlines some practical approaches to help address these 1.5 CPD hours issues can quickly emerge upon death. This webinar will issues. provide an update of the latest cases regarding the Family Protection Act and the Testamentary Promises Act, refl ect PRACTICE & PROFESSIONAL SKILLS on some key Property (Relationships) Act issues, and consider the practical implications of these developments TRUST ACCOUNT Philip Strang To qualify as a trust account supervisor, you must complete Various Jul-Nov for your clients. SUPERVISOR TRAINING 40-55 hours’ preparation, attend the assessment day and pass PROGRAMME all assessments. The training programme consists of self-study IN SHORT learning modules to help you prepare for assessment. 7.5 CPD hours GIFTING AND Theresa Donnelly New Zealand has a rapidly aging population and one of the Auckland 15 May RESIDENTIAL CARE more contentious Elder Law issues in recent times has been SUBSIDIES who should pay for the costs of care for those in geriatric STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 2 5-7 Jul long term rest home care. Following on from a session at the FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a Wellington 13-15 Sep Auckland CPD Top-Up Day in February 2018, this seminar PRACTISING ON OWN barrister, will be required to complete this course. (Note: 2 CPD hours Auckland 3 8-10 Nov will consider the rules and what is being clawed back, the ACCOUNT 2018 From 1 October 2012 all lawyers applying to be barristers sole implications of the recent High Court decision of Broadbent, are required to complete Stepping Up.) Developed with the the Ministry of Social Development’s response to date and the 18.5 CPD hours support of the New Zealand Law Foundation. practical implications for practitioners advising their clients on asset planning.

To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111. For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz SNAPSHOT May 2018 · LAWTALK 917

SNAPSHOT

Adult convictions in 2017

BY GEOFF ADLAM

Statistics New Zealand has released criminal conviction and sentencing statistics for the 2017 calendar year from data provided by the Ministry of Justice. The data for adults shows some noticeable variations when analysed by ethnicity, gender, age and sentencing court. The information for a centre covers both District Court and Proportion of outcomes resulting in a conviction, lowest High Court (where applicable). Courts Total outcomes Convicted % Convicted Sentencing outcomes Queenstown 623 430 69.0% Just under 83% of the cases in District and High Courts where Auckland 7311 5407 74.0% adults were prosecuted had an outcome resulting in a convic- Greymouth 516 384 74.4% tion. The data is for the most serious offence. A further 8% of Ashburton 389 290 74.6% charges were “other proved” but not recorded as convictions Wellington 2152 1607 74.7% – these included where Police offered diversion or the person was discharged without conviction under section 105 of the Queenstown District Court had the biggest proportion of Sentencing Act 2002. Most of the rest – 9% – were “not proved”. “other proved” (diversion or discharge without conviction) This includes where the person was acquitted or discharged outcomes in 2017, at over 24% of all outcomes. At the other or where the charge was dismissed or withdrawn. A very small end of the scale was Dargaville District Court. proportion of cases (“other”) resulted in a stay of proceeding, the person being found unfit to stand trial or acquitted on Proportion of outcomes resulting in an account of insanity. “other proved” finding, highest Total Other % Other Adult outcomes in New Zealand courts, 2017 Courts outcomes proved proved Outcome Total % Total Queenstown 623 152 24.4% Convicted 64,433 82.9% Waipukurau 119 21 17.6% Other proved 6046 7.8% Alexandra 221 36 16.3% Not proved 7007 9.0% Ashburton 389 61 15.7% Other 235 0.3% Westport 145 19 13.1% Total 77,721 100.0%

Looked at on a court-by-court basis, there was a difference of Proportion of outcomes resulting in an over 20% between the proportion of cases which resulted in a “other proved” finding, lowest conviction – from convictions in 91.2% of all cases in the Thames Total Other % Other Courts District Court down to 69.0% of all cases in the Queenstown outcomes proved proved District Court. Dargaville 212 5 2.4% Proportion of outcomes resulting in a conviction, highest Whangarei 2144 52 2.4%

Courts Total outcomes Convicted % Convicted Whanganui 1324 48 3.6% Thames 454 414 91.2% Te Awamutu 303 13 4.3% Tokoroa 623 566 90.9% Rotorua 2317 104 4.5% Opotiki 356 321 90.2% Thames District Court had the lowest proportion of “not Te Awamutu 303 273 90.1% proved” outcomes in 2017 at just 2.9%, while Auckland District and High Courts had the highest proportion of “not proved” Dargaville 212 191 90.1% outcomes (16.5%).

90 LAWTALK 917 · May 2018 SNAPSHOT

Proportion of outcomes resulting in a Age and Gender “not proved” finding, highest Men made up 78.2% of adults convicted of an offence in 2017. Total Not % Not On an age basis, 51.7% of men convicted were aged under 30, Courts outcomes proved proved and 50.8% of women convicted were aged under 30. Auckland 7311 1209 16.5% Adult convictions in 2017 (most serious offence) Greymouth 516 68 13.2% Age range Female % Female Male % Male Wellington 2152 277 12.9% 17 to 19 1311 9.4% 5114 10.2% Otahuhu/ 7503 902 12.0% 20 to 24 2830 20.3% 11070 22.1% Manukau 25 to 29 2936 21.1% 9732 19.4% Waitakere 3559 417 11.7% 30 to 39 3523 25.3% 11628 23.2% Proportion of outcomes resulting in a 40-plus 3340 24.0% 12499 25.0% “not proved” finding, lowest Unknown 296

Total Not % Not Total 13940 100.0% 50043 100.0% Courts outcomes proved proved Thames 454 13 2.9% Whakatane 1110 45 4.1% Waihi 296 12 4.1% Full information for all courts can be found on the Law Society website at Practice Resources/Research and Taupo 773 33 4.3% reviews/Trends and statistics. Tokoroa 623 28 4.5%

Ethnicity and sentences Statistics for adults convicted by sentence type show that Māori adults comprised 44% of adults convicted of an offence in 2017, but made up 58% of adults who were sentenced to imprisonment. The latest Statistics New Zealand data on ethnicity appears to show that around 73% of the population identify as European or “other” ethnicity, 16% as Māori, 15% as Asian and 8% as Pacific (with people often identifying with more than one ethnicity).

Adults convicted by sentence type (most serious offence)

Sentence European Māori Pacific Other Total Convicted 23,450 26,794 5,881 2,724 58,849 Imprisonment 2,550 4,822 620 289 8,281 Community 10,382 12,618 2,618 939 26,557 Monetary 8,130 6,295 1,833 1,247 17,505 Other 1,378 1,608 390 151 3,527 None recorded 1,030 1,451 420 98 2,999

Sentence European Māori Pacific Other Total Convicted 39.8% 45.5% 10.0% 4.6% 100.0% Imprisonment 30.8% 58.2% 7.5% 3.5% 100.0% Community 39.1% 47.5% 9.9% 3.5% 100.0% Monetary 46.4% 36.0% 10.5% 7.1% 100.0% Other 39.1% 45.6% 11.1% 4.3% 100.0% None recorded 34.3% 48.4% 14.0% 3.3% 100.0%

91 LIFESTYLE May 2018 · LAWTALK 917

LIFESTYLE

1 2 3 4 5 6 7 8

9 10

11

A New 12 13

Zealand 14 15 16

Legal 17 18 19 20 Crossword 21 22 23

SET BY MĀYĀ 24 25

26 27

C Y A N I D E N A M I B I A H I N N I U L B L A M I N G T O N R E A V E Across Down O E O H E D C L 1/27 Two Kings, first in Derby 1 Bloke touring these parts of R E D U C E R S G E C K O O E A P R M I Acre, talked regularly to teetotaller, German city (7) F U L L N E L S O N C A I N winner of a landmark case (8,8) 2 Virtue, you say? Absolutely not! O I T L S M I T 5/25/13 "Australian's Hamlet is (2,2,5) R U T H B E S T S E L L E R M U M D M N I rubbish" - poet (6,8,5) 3 Spooner's worker identifies P R O O F P O L I C I N G 9 See 22 Down infusers? (3,4) L G T E R S M U 10 Polish king with minor injury (6) 4 Scotsman claims it's interesting A L I B I D E T E C T I V E G E V I E U D R 12 Sue over returning cat to next door (12) S U S P E C T M Y S T E R Y husband number ten, a father of 6 He digs divorcée; she hides modern anatomy (9) hesitation (7) 13 See 5 7 Type of tube meal (no starter) (5) Solution to April 14 A long time with leader replaced 8 Hindenburg: an old windbag? (7) 2018 crossword by successor exhausts (5) 11 Make your mark with doctor at Across 15 Admit Queen's joint ACLU, perhaps, a pioneer of blood 1. Cyanide, 5. Namibia, 9. Lamington, responsibility (9) transfusion? (5,7) 10. Reave, 11. Reducers, 12. 17 16's centre is low-_____ ... 16 Rugby player to verbally speed Gecko, 15. Full Nelson, 17. Cain, possibly without wanting to be? (9) up Sir Michael (9) 19. Ruth, 20. Bestsellers, 22. Proof, 19 Studied what 16 did, subject to 17 Dad joke at the cinema? (7) 23. Policing, 27. Alibi, 28. Detective, hearing? (5) 18 Get a promise of veracity up 29. Suspect, 30. Mystery. 21 Fragment put together (5) front; second, go for a walk with 23 Lean into slicing range to obtain new shoes (5,2) Down a close shave (4,5) 19 Irish lad has wild time with 1. Chloroform, 2. Aimed, 3. Innocent, 24 Second Sunday in May provides country lover (7) 4. Enthralled, 5. Nine, 6. Murder, 7. the rest (6) 20 Maker-up can begin cunning trap Blackmail, 8. Abel, 13. Post Mortem, 25 See 5 (3-4) 14. Intriguery, 16. Liturgies, 18. 26 Potential runners, like Lyn, 22/9 Al's precursor almost hell-bent Meniscus, 21. Motive, 24. Imide, 25. returning with active direction (6) on filling in for first woman lawyer Lags, 26. Edit. 27 See 1 hereabouts (5,8)

92 LAWTALK 917 · May 2018

LIFESTYLE

Take a train back into history

BY JOHN BISHOP

visible from the train as it passes The TranzAlpine train trip slowly by. There’s also a memorial between Christchurch and to all miners who have died on the Greymouth is well known for its West Coast, in Greymouth itself. spectacular scenery but it’s also a The extraction of natural wonderful journey into the colonial resources, gold, coal and then native history of Canterbury and the West timber, has driven the local econ- Coast. omy for more than a century and a The onboard commentary focuses half. The stories are interwoven with on the achievements, difficulties and the working man’s struggle for living failures of building the railway itself, wages, economic independence for hailed as a marvellous feat of engi- the region, and with a history so neering, particularly for its tunnels. often marred by tragedy. Equally interesting are the tales of The Midland Railway Company is times past that are referenced as the a tragedy of another kind entirely. In ▴ An old across six distinctive landscapes train passes over Canterbury Plains the 1870s there was local pressure to railway and climate by heading down the and heads into the hill country after build a railway line from Reefton to workshop Main South line (formerly known as Springfield. both Christchurch and Nelson, thus at Arthur's the South Island Main Trunk), west Take the story of the ghost swag- linking three provinces. Pass and then southwest until it turns gie sometimes seen in the mist North Island interests were onto the Midland Line at Rolleston. making his way out of the moun- opposed, arguing the North Island The Canterbury Plains are the tain passes and said to be walking Main Trunk had to take priority. largest area of continuous flat land towards Lyttelton to get a boat home In a compromise the government in New Zealand covering 777,000 to his native Scotland. of the day granted land for a line, hectares. Or the inventive policeman faced and a company was floated on the Land use in Canterbury has with multiple thefts of coal from the London Stock Exchange and won changed dramatically since the railyards at Otira. He made small the contract to build the line. Europeans arrived. Forests were explosives, painted them black, hid This was the Midland Railway burned off to create pasture. At first them among the coal bins at the Company, launched in 1886. It was it was all about sheep, with some station, and when a chimney blew to complete 376 km of rail line in beef cattle. up he went to the damaged house 10 years. But by 1895 it had built Crops like wheat, oats, barley, and arrested the occupants. just 131 km and had run out of peas, and seeds like ryegrass have The history of the West Coast money. It collapsed into insolvency, all been grown here, and now it’s gets equal treatment to that of and the Public Works Department dairying and wine in the north Canterbury – indeed the area was (a forerunner to the Ministry of parts. Fat lambs, various kinds of once known as West Canterbury Works which built so much of New stud farms, and deer have had their before it achieved its own provincial Zealand’s infrastructure) took over place too. status, but just before all forms of and completed the job. Close to Christchurch there are provincial government were abol- The Midland name lives on as the plenty of 10-acre lifestyle blocks ished in 1870. name of the railway line even if the and the commentary notes that In the Brunner Mine disaster of company is long gone. 99% of the vegetation now on the 1896, 65 miners were killed in an Canterbury Plains is introduced. explosion, and 33 of them are buried Coast to Coast Only 0.5% of it is native vegetation. in a mass grave in Stillwater, just From Christchurch the TranzAlpine From Darfield there used to be outside the town. The graveyard is train goes on its 230 km journey branch lines or spurs which ran

93 May 2018 · LAWTALK 917

◂ The beginning or end of your journey — Greymouth Station

Avoca, down a steep cliff but pro- ducing high quality anthracite coal. This operated between 1916 and 1928 when supplies ran out, but at its peak it had a workforce of 65 and its own school. The winds were so strong that the toilet in the grounds of the school was secured by guy ropes to stop it blowing away in the frequent gales. A ghost story Here too were the sightings of the Scottish Swagger. He has apparently been seen several times on the old the passengers were expected to get Stagecoach road near Avoca, a short out and push the coach forward. distance from Cass in the centre of From 1906, rail replaced the the Southern Alps. horses between Christchurch and Sightings haven’t been frequent Springfield, but it was still by coach lately, but it makes for a good story after that up to Otira, and then as on a cold night in a warm bar. the railway was extended progres- This is now the high country sively to Arthur’s Pass, and finally where pasture becomes tussock. The all the way to Greymouth, horses measure is acres to the animal, not gradually lost their place altogether. ewes to the acre as in the low coun- Rail cars were introduced to give a try. There are no fences, only natural better level of comfort, but now have boundaries like rivers, mountains been replaced by the TranzAlpine and deep gullies. with its carriages with big windows Even today mustering is by horses for easy viewing, and seatless scenic and dogs, even if the dogs come in cars open to the elements for better by four-wheel drives and helicopters photography. are used to spot the flocks of sheep On the modern rail journey gorse on the hills. ▴ The Miners' Memorial in Greymouth and broom can be seen from the Cass is a small nowhere place Waimakariri River Gorge. Like the made famous by a single painting to Oxford north of Christchurch (1884–1930) and to possum, they were introduced with by Rita Angus in 1936. Once a place Rangiora, but that too was closed in 1959. good intentions, but all three had with a railway refreshment room The first land connection between Christchurch and no natural competitors and conse- and home to various rail and road the West Coast was a road built in the winter of 1865, quently thrived, and now they’re all gangs, it now has a population of because Canterbury interests were keen that the gold noxious pests and nuisances. one. being mined on the Coast should come to Christchurch At Avoca sheep station just short Here passengers used to change banks. West Coasters were not persuaded and sent most of Cass, one of the most remote sta- from rail to coach for the onward of the yellow stuff north to Nelson or across the Tasman tions in the country, the residents journey up the mountains, but it to Melbourne, because there were strong maritime links would hang out a large white sheet, lost its place as the rail line was to both ports. so it was visible to the train head- pushed forward reaching Arthur’s With the road open, Cobb and Co ran coach services ing to Arthur’s Pass, to show that Pass in 1914. using the same Concord coaches as the famous Wells they needed supplies or needed to By the mid-1920s travelling by car Fargo Company used in the United States. make a journey. The message would was a common enough practice, and A coach capable of seating 17 passengers plus their be relayed to the east bound train they too stayed at the Bealey Hotel. baggage and mail was hailed by six horses. The horses which would then stop at Avoca in Fred Cochrane, the publican there were changed every 20 kilometres or so, but it still took the afternoon and take the travellers from 1928 to 1938 transported cars two days for the passengers to complete their journey. to Springfield to shop and do their across the Waimakariri River on a Overnight accommodation was at the Bealey Hotel, business. wooden dray and charged a pound and where the road got steep and the load was heavy, There was also a coal mine at for the privilege.

94 Motorists were free to attempt their own crossing, but ▴ The TranzAlpine Train coming Fred charged five pounds to haul out stranded cars. He into Greymouth station was suspected of dredging the river to boost his revenue, but whatever the truth of that, his little perk ended in ▴ A standard view from the 1936 when a road bridge across the river was opened. TranzAlpine Train journey Later, another Bealey publican also increased his trade at least for a short time, with a very inventive story tunnellers used the experience involving a moa. gained here to dig tunnels under In the 1990s Paddy Freaney claimed he had taken a German lines on the Western Front picture of a moa in the Craigieburn Forest, and it was in World War I. convincing enough to make the news around the world The 8.5 km tunnel rises 359 metres resulting in a deluge of visitors as curious sightseers over 14 km, which is a gradient of and explorers anxious for a sighting themselves flocked 1:33. The engineering was a success. to his hotel. At the time it was the seventh The “moa” didn’t oblige with another appearance, longest tunnel in the world: now and the photo was proven a fake, but Paddy travelled it is the 45th longest, and in New internationally for several years in a row on the proceeds. Zealand both the Rimutaka and Kaimai tunnels are longer. The Otira Tunnel Today the operation of the tunnel The railway station at Arthur’s Pass at 737 metres is the is controlled from Wellington and highest in the South Island and third highest in New From the town has just four rail staff living Zealand behind Waiouru and National Park. Christchurch and working there. Total population It’s a popular stop for the train passengers and the the TranzAlpine is around 45, boosted when the prelude to perhaps the most interesting engineering train goes on publican bought the town and all aspect of the train journey – the Otira Tunnel, the last its 230 km its houses and leased them out to and most significant link in the Midland Line. journey across people seeking a cheaper lifestyle. The railheads had reached Otira from the western six distinctive Rainfall is 5 metres a year and in side in 1900, and Arthur’s Pass from the east in 1914, landscapes midwinter the sun is seen only for but the question was how to link the two by rail. Many and climate by a few hours a day. options were canvassed but a conventional rail tunnel heading down But this is exactly the kind of was considered the most desirable and feasible. the Main South hardship that the pioneers who John McLean and Sons were given the job, but like line (formerly built the road and the railway the Midland Rail Company, it was broken financially known as the endured year on year in Otira and by the difficulty of the job, and by industrial strife and South Island Main other places along the way to create union militancy. It went bankrupt in 1912, and again the Trunk), west and a modern rail link now enjoyed by Public Works Department picked up the task. then southwest thousands of visitors from New Construction had begun on both sides in 1908 and until it turns onto Zealand and overseas each year. ▪ hole-through occurred in July 1918, although the offi- the Midland Line John Bishop travelled on the cial opening didn’t take place until 1923. Some of the at Rolleston. TranzAlpine at his own expense.

95 LIFESTYLE May 2018 · LAWTALK 917

LIFESTYLE

Sutherland’s Law – a law man in the heyday of crime caper TV

BY CRAIG STEPHEN

So, a lot of prestige was at stake for BBC Scotland in commis- Television producers have always sioning this series. Its life began as a pilot in 1972 featuring Derek found the legal profession to be a healthy Francis as the new man in the job and who is thrown straight source for programme making. These days into a possible murder case, investigating whether a fisherman’s the lawyers and others in the profession we fall from the deck of his vessel was accidental or not. It proved see on television tend to be immaculately popular enough to warrant a series, but Francis wasn’t considered coiffered, smartly dressed and in posses- for the lead role. sion of supermodel looks while working The spectacular opening sequences promised viewers, whether out of glitzy offices. living in Surrey, the Shetlands, or even Stratford, Taranaki that The UK, however, has been drawn to they would be seeing attractive Scottish locations – snow-capped down-to-earth characters and locations mountains, rocky coastlines, highland cows and purple heather. and Sutherland’s Law was often set out- But it didn’t say much about what it was actually about, and the doors, in mountainous Scottish terrain. twee ‘traditional’ music only seemed to offer further confusion. Sutherland’s Law ran to 46 episodes, over Soon, however, we discover that John Sutherland is a Procurator five series and aired on the BBC from 1973- Fiscal, who investigates evidence and decides whether to lay the 1976, attracting up to 17 million viewers at case before the Sheriff – a position that’s unique to Scotland but its peak, albeit at a time when there were similar to what a District Attorney would almost no other distractions. Its success in do in the United States. Britain meant it was picked up by the New Zealand Broadcasting Corporation and its The town of Glendoran successor channel. Sutherland is based in the fictional town The series featured the inimitable of Glendoran in the West Highlands, in Scottish actor Iain Cuthbertson, whose reality the often wet coastal resort town height, rugged features and gravelly voice of Oban. He is aided by two assistants. were ideal for the role of John Sutherland, Guest appearances were made by many the hard-nosed Procurator Fiscal relocated familiar faces in British television, or who to a small Highland town. It was a role The spectacular would become so, including Martin Shaw reversal for the actor whose biggest role opening and one Geoffrey Palmer. to then was in Budgie, in which he played sequences The series’ creator, Lindsay Galloway, the gang boss pulling the strings to Adam promised viewers, defined a Fiscal as something of a local Faith’s fall guy. whether living hero, someone with a deep understanding in Surrey, the of why crime occurs and with a decent Important landmark Shetlands, or amount of compassion. If needed he would One TV expert, Billy Smart, has described even Stratford, climb mountains or get his hands dirty. For the now largely forgotten show as an Taranaki that authenticity he roped in a former retired “exceptionally important landmark in they would be Procurator Fiscal, John Stevenson, as Scottish television history”. seeing attractive technical adviser. He notes that its inception coincided Scottish locations Cuthbertson fitted the bill well, which with the London-based BBC’s five-year – snow-capped was helped by his empathy for the char- plan for programme development in mountains, acter’s role and traits. Scotland, opening new hi-tech studios to rocky coastlines, “I approve of Sutherland. He’s not a make expensive productions for a UK-wide highland cows and cardboard figure. Although, like many audience. purple heather. who work out other people’s problems,

96 he’s not too good at sorting out his own relevant storyline. As well as the moun- ▴ The exteriors of the series were all life. But these Fiscals are extraordinary. tains and steep clifflines, viewers liked the filmed in the coastal resort town of They are paid less than their colleagues quaintness of the shots of Oban. Which Oban, Scotland.  David Hamill bn in private practice yet there’s no evidence is understandable if you lived in a former of corruption. They are dedicated men,” he mining town in Yorkshire or a soulless new smooth-talking Edinburgh-based insur- said at the time. town like Milton Keynes. ance investigator who turns out to be in Sutherland might have been a big shot However, the BBC Programme Review cahoots with a group of bank robbers, and from the city (Edinburgh) but Glendoran Board didn’t share the view of millions a bent Glaswegian cop who engineers the wasn’t the sleepy provincial town he of fans; finding the show over-reliant on revenge killing of a murderer on the streets might have expected as he was thrown attractive settings. of Glendoran. Meanwhile, one edition into investigations into mysterious hit-and- In the tradition of rural crime shows, the focused on the plight of a crofter – a farmer runs, deadly pollution and a killing on a city is held up as an example of where not working with a small area of land, a role sabotaged ski slope. to be, and where crime is often imported particular to the Highlands – in his battle The rural-areas-aren’t-actually-nice from. Sutherland’s Law is no different, against big-city bureaucracy. Sutherland formula would be later repeated, to more with several episodes centring around the is portrayed, naturally, as a defender of success in other British TV crime shows, Fiscal’s battle with visiting hardmen from local values. such as Bergerac (the island of Jersey) and Glasgow and Edinburgh. By 1976 it had run its course, just as Midsomer Murders (a mythical county in In one such episode Sutherland is told British audiences had become accustomed southern England). he is out of his league: to the action-packed detective series The “I don’t doubt for a minute you’re the Sweeney and other series that involved Locations work terror of the local poachers and the guys high-speed car chases, organised gangs The locations worked – 15 BBC Audience who throw toffee papers away on the and street language. ▪ Research reports on the series frequently street. Do you not think you’re a wee bit mentioned their approval of the landscape, out of your class?” Sutherland’s Law is now available for especially when this was justified by a Sutherland also investigates a all on YouTube.

97 TAIL-END May 2018 · LAWTALK 917

TAIL-END

What has changed?

Back in 1987 and 1997 the New Zealand Law Society commissioned some research into the legal profession and its clients. The lawyer research was promoted as a “poll of the profession”, while the client research was a “poll of the public”.

1987 – how lawyers passed their time 2018 – areas of practice Lawyers in firms said they spent an average of 48.7 hours a Not as comprehensive as in 1987, but all lawyers are now asked week on legal work. Those working outside firms spent an to estimate how much of their time they spend working in 23 average of 33.4 hours a week on legal work (with it being specified areas of law. The top 10 at 1 February 2018 where noted that a number worked part-time). lawyers spent some of their time: When asked about the things they did during a typical week, around two-thirds picked domestic conveyancing, which was Area of law Proportion of lawyers closely followed by “reading professional journals, etc”: Company and commercial law 49% Property 42% Type of work Proportion of respondents Trusts/estates 36% Domestic conveyancing 66% Civil litigation 36% Reading professional journals, etc 65% Family law 30% Office administration 64% Employment law 27% Company and commercial law 62% Criminal law 22% Commercial conveyancing 58% Administrative/Public law 17% Estates 41% Intellectual Property 15% Family law 40% Resource Management 15% Dealing with other legal affairs 36% High Court civil litigation 33% District Court civil litigation 32%

Notable Quotes

❝ [44] … It is inexplicable that the Executive arm of ❝ John Fraser is not a lawyer. He is the proud spokesperson Government believes it has the ability to ignore orders and marketing associate of Preszler Law Firm. Since 2006, made by Courts, particularly when the Executive has no he has helped the firm deliver a positive message relating lawful status in relation to this particular child.❞ to access to justice.❞ — Judge Stephen Coyle is unimpressed with the actions and — Toronto law firm Preszler Law Firm explains on its website inaction of Oranga Tamariki. Nikau v Tatchell [2018] NZFC that a distinguished-looking white haired man used in its 1239. TV and print ads is actually an actor. Following a meeting with the Law Society of Ontario, the firm has also agreed ❝ The state of Alabama had every intention of killing me for to remove its claim to be the “Official Personal Injury Firm a crime I didn’t commit. They didn’t care whether I did it. of the Toronto Blue Jays” after being reminded that it has They cared about the colour of my skin. As the prosecutor never worked for the team. said: ‘Even if we didn’t get the right one, at least we got one off the street’.❞ ❝ A handful of corporations have been raised to a level of — Anthony Ray Hinton, 61, who spent 28 years on death row legal untouchability hitherto only bestowed upon certain in Alabama after an almost unbelieveably racist judicial diplomatic missions and royalty.❞ system wrongfully convicted him of murder. Mr Hinton has — Paris-based Danish lawyer Dan Shefet who is leading the just published The Sun Does Shine: How I Found Life and legal fight against global technology companies and the Freedom on Death Row. right to privacy.

98 LAWTALK 917 · May 2018 TAIL-END

1997 – What’s going to be big in the future? 1987 – What the The 1997 survey listed 17 areas which it said “may or may not public thought of their be developing or potential new areas of law”. Respondent lawyer’s gender lawyers were asked to indicate which areas they believed The 1987 public research asked respond- were developing or potential new areas of law for the legal ents for their preference between a profession. Interestingly, several are now common areas of male lawyer and a female lawyer (15% practice: of lawyers were women then) – 67% had no preference, 21% stated a preference New areas of law Proportion of respondents for a male lawyer, and 9% a preference Sports law 77% for a female lawyer. Of those who had Alternative dispute resolution and mediation 73% never been to a lawyer, 15% said they would prefer a female lawyer. Intellectual technology [correct] 68% When asked to give a preference for Employment law 61% a male or female lawyer for each of 13 Energy and resource law 58% matters, preference for a female lawyer Lobbying 57% “rose sharply” for Matrimonial Matters and Aged persons law 57% Other Personal Matters, but was lower than average for Business Matters, Traffic/ Practical seminars for clients or others 56% Crime, and Town Planning/Tribunals. Accident or injury claims 52% “Changing the public perception of Taxation planning and advice 49% women lawyers will require an ongoing PR programme,” the survey summary states. “Perhaps using and highlighting women lawyers who are successful in various areas of the law; not just in the areas currently perceived by the public.”

❝ A Google search for ‘famous New Zealand lawyer’ returns ❝ When male lawyers are direct and they’re doing their a list of people either dead or Mai Chen.❞ job and they’re dealing with clients in a particular way, — The Spinoff writer Callum Henderson wants to bring back they’re not accused of being shrill or curt or criticised for the 1990 TV series Bungay on Crime, but wonders who not being, well, ‘lady-like’.❞ could front it. — Canadian lawyer Sarah Leamon who has set up the Women’s Association of Criminal Lawyers to support women lawyers ❝ We are walking to seek an answer from the Chinese legal in reaction to what she sees as rising discrimination in system. Is China really a country with rule of law?❞ criminal law practice. — Li Winzu, wife of Chinese lawyer Wang Quanzhang who disappeared in August 2015 during a crackdown on human ❝ Awaking from surgery, the lawyer asked ‘why are all the rights lawyers. Li has since been told he has been detained. blinds drawn?’ The nurse answered ‘there’s a fire across the Her comments came before she started to march over street and we didn’t want you to think you had died’.❞ 100km from Beijing to Tianjin, where she believes her — The beginning of a Sydney Morning Herald article “How husband is imprisoned. On the seventh day of her march to choose the right lawyer for you”. she was returned to Beijing and placed under house arrest. ❝ It was obvious from the video interviews that were ❝ The cops rang my lawyer and said ‘Tell him to plead guilty conducted by the police of two of the complainants or we’ll make sure it goes in the Truth’.❞ and two so-called ‘eye-witnesses’ that their stories were — A man convicted of homosexual offences recalls the pre- hopelessly vague, inconsistent and implausible.❞ 1986 environment. The Criminal Records (Expungement — Marc Corlett QC, counsel for a teacher who was falsely of Convictions for Historical Homosexual Offences) Act accused by some of his students and then prosecuted for 2018 means he can now apply for expungement of his indecent assault. The jury took less than an hour to find convictions. him not guilty.

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