Advocate Summer 2014 by Young Lawyers' Committee Wellington

Advocate Summer 2014

INSIDE THIS ISSUE:

Crossing the great divide Working in London and some tips and tricks for young players Lawyering for Good Public interest law and an interview with Law for Change

Forex disputes can really bug you What happens when a bug in your stock trading software loses you $20,000?

The quarterly magazine of the Young Lawyersâ&#x20AC;&#x2122; Committee Wellington SUMMER 2014

Australia

London

China

Middle East

Hong Kong

Singapore

New Zealand

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YLC Advocate Summer 2014 04 Editors’ Note 05 Convenor’s Note 06 YLC Committee and Executive 2014 07 Upcoming Events and the YLC Calendar 08 Crossing the great divide: working in London and some tips and tricks for young players – Aster Thackery

11 Spotlight on Jelena Gligorijevic 12 Forex disputes can really bug you – Nick Mereu

16 Fashion Page: Coats & Jackets – Ani Chan 18 Event Report: Grad Cruise – Charlotte Christmas

14 Lawyering for Good: Interview with Law for Change – Althea Carbon 15 Event Report: Drinks at Chicago Bar – Charlotte Christmas

flickr user churchofpunk

10 Conversations about our Constitution – Andrew Pullar

Advocate Summer 2014 Editors:

Leah Hamilton & Jess Davies

Design:

Rebecca Walthall

Cover photograph by flickr user lazellion. Reproduced using a Creative Commons licence.

SUMMER 2014

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Editors’ note Leah Hamilton and Jess Davies CO- EDI TOR S

– Welcome back to Advocate for 2014! This issue is full of fantastic content to get you back into the legal groove after the summer break – interesting articles, two new columns, some great interviews, and photos from the first two events of this year: the drinks at Chicago Bar and the Grad Cruise.

In our first edition for the year, we have some excellent articles to keep you up to date with what’s hot in the legal world. First, Aster Thackery discusses what it’s like to hop the big ditch and work as a lawyer in London. She interviews a number of young lawyers who have ‘been there, done that’ to provide you with all the hot tips you need to know to survive. Next, while New Zealand doesn’t have a written constitution, it’s still important to think about and discuss – Andrew Pullar examines the 2013 report of the Constitutional Review Panel, which looks at a wide range of topics, including whether New Zealand should adopt a written constitution, the place of the Treaty of Waitangi, Māori representation, and the status of the New Zealand Bill of Rights Act 1990. Nick Mereu has also provided an excellent case note through his work at Financial Services Complaints Ltd on what happens when a bug in your stock trading software loses you $20,000. We also have a new column for this year’s Advocate. If you want to feel like you are upholding justice and saving the world with your legal skills, check out Althea Carbon’s column on “Lawyering For Good”. Althea’s first column of the year is an interview with Law for Change, about public interest law and what Law for Change does around New Zealand. The “Lawyering for Good” column will be featured in all four editions of Advocate this year. How well do you know your Young Lawyers’ Committee? Check out our interview on page 11 with Jelena Gligorijevic, who talks about her role in the Committee, her favourite book of the moment and what she would eat if she could only eat one meal for the rest of her life. Not only does this edition have the fantastic articles above, but we also give you the lowdown on the events coming up for 2014. On March 6 we had the “Welcome to 2014” drinks at Chicago Bar, with a great turnout – see page 16 for photographs and an event report. On March 20 we sailed away on the always-popular “Meet the Grads” Cruise – so hit the deck to page 20 to see the glamorous pictures. Other events we’ve got in the pipeline are the YLC Mooting Competition, career seminars, the annual ball and more. For more information check out the YLC website, and make sure to like our Facebook page to keep up to date with the latest YLC activities. > www.facebook.com/younglawyerscommittee We also thank the YLC’s general sponsors: MAS and JLegal.

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What would you like to see included in the YLC Advocate? We’d love to hear any feedback about the magazine — especially from potential contributors! So please get in touch at leah.hamilton@minterellison.co.nz 04 YLC ADVOCATE

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Convenor’s note Richard Evans SOL IC I TOR AT T HE T R E AS U RY

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By way of introduction, my name is Richard Evans and I’m YLC convenor for the year ahead.

I experienced this usefulness last year, upon reaching a crossroads in my career (as we all have or will). Because of the YLC, I was able to call on a wealth of guidance and experience not otherwise available – not in my circle of friends, and not in my workplace. The range of experiences and careers open to lawyers are so much more diverse than the options presented at law school. The YLC continues to expose me to these different pathways, in both interesting and useful ways.

Thanks for opening this issue of Advocate – our first for 2014 and the first by produced by the new Young Lawyers’ Committee (YLC) executive.

We’ve begun the year as we mean to continue. The “Welcome to 2014” drinks at Chicago and the “Meet the Grads” harbour cruise were two great evenings, providing a small taste of what the YLC is all about. Credit for the Chicago drinks goes to Lorraine Hercus, Sam Mossman and Annabel Martin, and to Hadleigh Pedler, Natalie Pierce, and Rebecca Garden for the cruise. It was a particular privilege to welcome those new to the legal profession. Partly for their benefit, I’ll use the next few paragraphs to outline YLC’s role in the young lawyer experience. We support the collegiality of the legal profession for Wellington’s young lawyers. We are here to help you network with other young lawyers across Wellington – throughout both the private and public sectors, across in-house teams and private practice, and in workplaces big and small. We’re also here to equip you with knowledge and skills relevant to where you’re at in life, both professionally and personally. Collegiality is a defining feature of any profession, but lawyers do it better than most. Certainly, many of the most rewarding aspects of my legal career have occurred beyond the office. At wine and cheese evenings, the ball, and on harbour cruises, I’ve enjoyed a good time while developing enriching and even useful relationships.

More profound tributes to collegiality are available elsewhere. For the moment, know that the YLC is here to support the collegiality of your profession. More simply, our events are awesome and we’re a key part of the young lawyer experience. Get in touch if you’ve got ideas as to how we could better support you. Our photos are over the page, and feel free to contact me at richard.evans@treasury.govt.nz if you have any questions or comments. We’re keen to hear from you. Advocate is a great expression of our mission. Assembling such a polished piece of work is no mean feat, and for that we’re very grateful to editors Leah Hamilton and Jess Davies, and to designer Rebecca Walthall. We look forward to seeing you at one of our events soon.

SUMMER 2014

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Committee Members 2014 – Althea Carbon; Amberley James; Annabel Martin; Emma Currie; Hadleigh Pedler; Heléna Cook; Helen Arathimos; Jelena Gligorijevic; Jessica Braithwaite; Jessica Davies; Jordan Williams; Leah Hamilton; Lorraine Hercus; Mallory Ward; Matt Dodd; Monica Hamlyn-Crawshaw; Natalie Pierce; Nadia Gastaldo-Brac; Nigel Salmons; Nicky Dalgleish; Nikki Farrell; Penelope Skinner; Rebecca Garden; Richard Evans; Sam Mossman; Simon Wilson.

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YLC Executive 2014

About the YLC

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CONVENOR

Richard Evans

PROFESSIONAL AFFAIRS OFFICER

Natalie Pierce DEPUTY CONVENOR

Amberley James

COMMUNICATIONS OFFICERS

SECRETARY

Nikki Farrell

Emma Currie Hadleigh Pedler

TREASURER

MARKETING OFFICER

Nigel Salmons

Jess Davies

SPONSORSHIP OFFICER

PUBLICATIONS OFFICER

Althea Carbon

Leah Hamilton

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The Wellington Young Lawyers’ Committee (YLC) is a committee of the Wellington branch of the New Zealand Law Society. It works to support young lawyers across the Wellington region by providing networking opportunities, relevant information and training, and by advocating for their interests. The committee currently comprises 26 volunteers from a range of firms and in-house teams in both the public and private sectors. An executive of 10 is responsible for running the YLC on a day-to-day basis. If you’d like to the join the YLC, contact the Secretary, Nikki Farrell at nikki.farrell@justice.govt.nz.

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Upcoming Events – The YLC has some great events coming up this year – check out what we’ve got on offer, and come along! This calendar will be updated throughout the year, so please check back for further updates or changes to dates.

JAN

FEB

MAR

APR

MAY

JUN

JUL

AUG

SEP

OCT

NOV

DEC

10 APRIL

22 MAY

19 JUNE

11 OCTOBER Oktoberfest

DLA Phillips Fox Lawyers’ Toolbox Seminar

YLC Annual Quiz Night

YLC Mooting Competition Final and Prizegiving Ceremony

30 OCTOBER

26 JUNE

YLC and Government Legal Network Event

26 MAY

Bridging the Gap launch

Heats begin for the 2014 YLC Mooting Competition

8 MAY

4 & 5 JUNE

YLC and Government Legal Network Event

YLC Mooting Competition Semi-Finals

29 APRIL

YLC Annual Wine and Cheese Night 30 AUGUST YLC Ball

Event Spotlight

YLC Advocate Writing Prize 2013

DLA PHILLIPS FOX LAWYERS’ TOOLBOX SEMINAR

YLC invites you to the DLA Phillips Fox Lawyers’ Toolbox Seminar, designed to give you access to the tools you need for your future legal career. This is a chance to get some expert advice on the early stages of your career and professional life, including financial tips for young lawyers, recruitment advice for both here and overseas, and tips on maintaining a successful work-life balance. Where: DLA Phillips Fox, 50-64 Customhouse Quay When: Thursday 10 April at 6 pm RSVP: info@younglawyers.co.nz by Monday 7 April at 5 pm. Numbers are limited.

The YLC Advocate Writing Prize is awarded to the best article published in Advocate each year. We were lucky enough to have Dr Caroline Sawyer from Victoria University of Wellington to judge last year’s competition. Dr Sawyer lectures in property law, and has also researched and written extensively on those who do not have full legal status and who consequently may lack human rights. Dr Sawyer looked at the subject-matter of last year’s articles, the treatment of the material and the style of writing, and liked these three articles so much she couldn’t decide on just one winner. Dr Sawyer’s top three (the joint winners of the YLC Advocate Writing Prize for 2013) are as follows:

YLC MOOTING COMPETITION 2014

• Love the thrill of appearing before judges? Want to practice your advocacy skills? Want the chance to get training and mentoring from New Zealand’s top barristers? Enter the YLC Mooting Competition 2014! • After last year’s success, we are delighted to announce that the YLC Mooting Competition will be returning in 2014! The competition will take place from late April to June this year, and will be open to current and past professional legal studies trainees who are not yet admitted, and young lawyers with up to 5 years’ PQE. More details coming soon!

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Case Note of a Recent Supreme Court Decision on Third Party Litigation Funding: Waterhouse v Contractors Bonding Ltd, by Helen Arathimos (Advocate Spring 2013 edition, page 24) The New Zealand Public Health and Disability Amendment Act: in Contempt of the Rule of Law, by Jessica Braithewait (Advocate Winter 2013 edition, page 16) A Step Forward: China’s New Exit-Entry Law and Legal Protection for Refugees in China, by Lili Song (Advocate Winter 2013 edition, page 20)

SUMMER 2014

The good news is that the job market is picking up. A salary survey done this year found that the average salary of a non-qualified lawyer (which is what you will be as an ‘overseas qualified’ lawyer) in London is £50,000. The bad news is that, as an overseas qualified lawyer, there are still a number of hoops to jump through before you get there, and you can’t practise as an actual solicitor or barrister. The type of visa that you arrive on will, largely, influence the types of roles that you will be offered. This article provides some useful tips and tricks that will hopefully help you on your way. Why go to London?

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Crossing the great divide: working in London and some tips and tricks for young players Aster Thackery L EG A L A DVI SER, SOUTH WA R K COUNCI L, LONDON

– So you’re thinking about making the move to London. You have a few friends over there and they seem to be doing alright (especially the accountants). However, you’re not sure what the move will mean for you or if you’ll even be able to find work.

London has a population of over 8 million people. Compare that with New Zealand’s 4.5 million and you will suddenly appreciate that there are opportunities and jobs in London that simply don’t exist at home. As well as that, there are all the other reasons why Kiwis go to London – most notably, to travel the European continent and party up a storm. London is a big city. Keep in mind that there are plenty of other places in the UK that you might like to live in, all of which provide ample opportunities for work and play, and all of which will give you different experiences. What type of visa do you need?

Unless you have a UK passport (or EU passport), you will need to apply for one of the following: 1. Youth Mobility visa (Tier 5) This is the 2-year visa that most Kiwis arrive on. You must be aged between 18 and 30 to apply. Once granted, it allows you to live and work in the UK for up to 2 years. At the time you apply you can specify a future date that your visa will run from – handy if you plan on travelling first. The downside of this visa is that once it ends you have to leave (though the Mayor of London has described this treatment of Kiwis as “disgraceful” and there have been rumblings about making changes).1 2. UK Ancestry visa This visa is for those who can prove that one of their grandparents was born in the UK. Once granted, you can stay and work in the UK for 5 years. At the end of your 5 years you can apply for an extension or apply to settle in the UK permanently. 3. Sponsorship (Tier 2) This visa is for those who have been offered skilled work in the UK. The company you work for must be a licensed sponsor and grant you a certificate of sponsorship. You must work for the company that sponsors you. It is possible to switch from a Youth Mobility visa to Sponsorship once you are in the UK. However, your company must show that no one from within the EU is able to do your job – making these visas more difficult to attain. Note that you need to apply for the Youth Mobility and the UK Ancestry visas from outside the UK. Navigating the London job market

The type of visa that you arrive on will influence the types of roles you will be offered. If you are extremely career minded, and don’t want to suffer any set-backs, then you might want to think twice before leaping on a plane. Instead, you may want to look into your options at home, and see whether you can work for a firm that will sponsor you to move to the UK. 1

08 YLC ADVOCATE

Nicholas Jones “London Mayor: Open Britain’s door to Kiwis” (28 August 2013) New Zealand Herald <www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11115387>

Diliff | Wikimedia Commons

London Eye

On the other hand, if you are a little more relaxed about the work that you do and don’t mind doing something that is less than perfect until you find your feet, then London has plenty of opportunities. Moreover, it is generally accepted that once you have some initial London work experience you are much more hireable.

Permanent You will not be offered a permanent role if you are on a Youth Mobility Visa unless the company is willing to sponsor you (in which case the process of applying for a Sponsorship visa begins). A permanent role is as it says: permanent employment on the company’s payroll.

When applying for jobs, look out for the following job types:

Making recruiters work for you

Temporary/Contract/Freelance The majority of Kiwi lawyers start out as temps or contractors. The term ‘freelancer’ is also commonly used. This is a result of being on a temporary (2 year) work visa. This work is relatively easy to get, and can range from mundane document review to more complex work where you are effectively shadowing a solicitor.

Recruiters have been described as “a necessary evil”. Unfortunately, they play a big part in the London job market, and it is unlikely that you will get a job without using them. A few tips regarding recruiters:

The benefit of this type of work is that it is highly flexible and can pay fairly well. The downside is that there is limited job security and you may end up doing ‘bitsy’ work that you’re not really interested in. Further, you work through an agent who is effectively contracting you to the company (and, of course, they take a cut). Fixed Term Contract (FTC) This is when you go on the company’s payroll. These jobs usually range from 6 months to a year (depending on your visa status) and are often extended. The benefit is that you may get more substantial work experience as the company knows that you’re there for a period of time. You may also be entitled to certain employee benefits (such as sick leave). The downside is that the pay is usually less and, depending on when your contract finishes, it may be hard to get another contract before your visa expires.

• Choose recruiters that are industry specific – that is, ones that know the legal market. Ask around for recommendations of good recruiters. • Know what types of roles you’re looking for and do not deviate – recruiters will try and push you into anything that you seem vaguely qualified for. Remember that they are working for a commission! Don’t let them bully you into something you don’t want. • Manage recruiters carefully and keep a record of where your CV has gone – it is not a good look when you send your CV twice for the same role because you failed to mention it to one of your recruiters. • Always ask where the role is based – recruiters will often suggest roles that may be an hour or more away. While many people do commute for this length of time, think about whether you can manage it and whether it’s a role that is worth it. London does not have good weather or cheap rent. However, New Zealanders are known for their good work ethic and, once your foot is in the door, there are lots of opportunities to be had. In the next issue of Advocate we will look at the London legal job market and what you can do put yourself a step ahead. A

SUMMER 2014

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Conversations about our Constitution Andrew Pullar JU D G E’ S C LE R K AT T HE S U P R E M E C OU RT

The views expressed in this article are those of the author and do not necessarily represent the views of the Supreme Court.

– The review considered a wide In December 2013 the Constitutional Review Panel contributions. I think the more interesting recommendations of range of topics, including whether released its final report, entitled New Zealand’s the Panel are those calling on the New Zealand should adopt a writConstitution: A Report on a Conversation.1 Government to establish processes ten constitution, the place of the to explore options for change on Treaty of Waitangi, Māori representation, the status of the New Zealand Bill of Rights Act 1990, and issues such as the place of the Treaty of Waitangi, the New Zealand electoral matters. The Panel of 12 spent over six months discussing our Bill of Rights Act 1990 and aspects of our electoral system. In particuconstitutional arrangements via meetings across the country, social lar, exploring whether the New Zealand Bill of Rights Act 1990 should media and the Panel’s website. In addition, the Panel received over 5,250 be expanded to include economic, social, cultural and environmental rights could prove to generate quite a valuable public debate, regardless written submissions. of whether such changes are made. In brief, the Panel’s primary recommendations were that the Government support the continuation of the national conversation about our consti- I think these recommendations are the most crucial of the report, not tutional arrangements and develop a national strategy for education on only for the significance of the changes that might be explored but civics in schools and in the community, including on the unique role because whether they are actually acted on could prove critical to of the Treaty of Waitangi. These were supplemented by a number of whether the interest this review process has generated in our constiother recommendations, which largely call on the Government to note tutional arrangements is sustained. Without ongoing discussion on particular trends that emerged from the review. These included rec- potential constitutional change, it is difficult to see how the overarchommending the Government note that there is significant support for ing recommendation that the national conversation on our Constitution entrenching some elements of the Constitution, despite a lack of broad continue will be achieved. Implementing an education strategy is likely support for a supreme constitution. Other recommendations called on to take too long for constitutional issues to remain on the radar. On that the government to set up processes to explore options for the future of front, I think it is unfortunate that this year is an election year. I could be particular aspects of our constitutional arrangements, including the wrong, but I am not optimistic that any significant constitutional change Treaty of Waitangi, the New Zealand Bill of Rights Act 1990 and some will be mooted before the election, particularly seeing as Prime Minister Key has set such an unusually early election date. Ironically, one of the electoral issues. recommendations of the panel was that the Government set up a proThe Report is encouraging on a number of fronts. Considering that con- cess to explore a fixed election date. The cynic in me suspects we may stitutional debate in New Zealand has tended to be infrequent and lim- have our answer on whether that will happen under the Key Government ited, I think this review has been a success at least for the level of public already (unless such a limitation is accompanied by a longer term of participation it achieved. In a country that largely sleepwalked its way to Parliament). Moreover, this Government’s response to the Electoral independence, it is no small feat that the Panel’s work attracted so much Commission’s review of MMP is not an encouraging precedent. engagement and so many submissions. Moreover, the report notes a wide range of thoughtful ideas and perspectives on constitutional It is perhaps a shame that the Panel did not recommend any significhange, which speaks to the quality of the discussion this review process cant change to our constitutional arrangements. It was always unlikely has generated. If implemented effectively, increased education on civics that there would be sufficient popular support for the Panel to recomand citizenship will only enrich this further. I think it is a real shame that mend the adoption of a supreme written constitution, or that the judiI knew very little about our constitutional arrangements until I started ciary be given the authority to assess legislation for consistency with law school, and I know I am not alone in that respect. The more New the Constitution. Nonetheless I find it interesting that despite noting Zealanders are aware of how our Constitution operates and its impor- considerable support for entrenching elements of the Constitution, the tance, the healthier our political system will be. Informed citizens are far Panel did not directly recommend that this occur; nor did it recommend better placed to evaluate government action than those with little or no any particular element even be codified. Personally, I think there is some merit to codification of at least some of our constitutional conventions, knowledge of how our Constitution is supposed to operate. considering many of the times our constitutional arrangements have Nonetheless, recommendations that civic education be increased proved inadequate have been where conventions were not followed. and constitutional dialogue be continued are hardly ground-breaking 1

10 YLC ADVOCATE

The report can be accessed at www.ourconstitution.org.nz.

The refusal of outgoing Prime Minister Muldoon to act on the advice of incoming Prime Minister Lange in 1984 in violation of the convention that a caretaker government will always act on the advice of an incoming government springs to mind, as do numerous instances of governments legislating to reverse the effect of judicial decisions. I accept that there would almost certainly not be a consensus on which conventions should be codified, or even whether some practices are conventions. Yet considering the Panel recommended that the Government set up a process to explore the future of so many other aspects of our constitutional arrangements, I do not think a similar recommendation would have proved amiss in this area, or at least on the broader question of whether more codification or entrenchment of aspects of our Constitution is desirable. Despite this, I think the constitutional review process has been beneficial. Regardless of the strength of our formal constitutional arrangements, constitutional awareness among New Zealanders can itself serve as an important check on governmental authority, insofar as it means constitutionally improper actions translate to political consequences. Regardless of how many of the Panel’s recommendations are taken up, this review has increased that awareness. If this interest continues, it will be interesting to see where our Constitution will go. A

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Spotlight on Jelena Gligorijevic – What’s your role on the Committee? I am a general member of the Committee and provide a link between the Young Lawyers’ Committee and the IPANZ New Professionals. How long have you been on the YLC and why did you join? Just over a year now, and I joined because I think the YLC has an important role in Wellington, and I wanted to be a part of it. What do you do outside of the Committee? I work as a Solicitor at Russell McVeagh. In my spare time, I enjoy running and playing tennis; I also volunteer at the SPCA, and I write intermittently for a couple of overseas-based media publications. What’s your favourite New Zealand holiday spot? My favourite New Zealand holiday spot is Paton’s Rock beach, Golden Bay. If you had to eat one meal for the rest of your life, what would it be? I would choose roasted capsicum salad, with parsley but no garlic.

Avenue | Wikimedia Commons

Are there any books that you have been reading recently that you would recommend to others? “The Immoral Trade” by Baroness Caroline Cox. A

The Treaty of Waitangi forms an important part of our Constitution

SUMMER 2014

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Forex disputes can really bug you Nick Mereu CA SE MA NAG ER AT FIN ANCIAL SERVICES COMPL A I NTS LTD

– What happens when a bug in your trading software loses you $20,000? This case, between a customer and a broker, was one of Financial Services Complaints Ltd’s (FSCL) more complex matters, involving an online foreign exchange trading platform – a financial product that is becoming increasingly popular as an option for investors to make fast financial gains. The facts of this case

Horatio* opened a trading account with a broker, Unintended FX*1, and downloaded a software trading platform to access Unintended FX’s brokerage service. Horatio also used expert adviser software to help him trade. Expert adviser software allows traders to automate their trades by setting predetermined boundaries around when an automatic trade will and will not be conducted. Both pieces of software (the platform and the expert adviser) were developed and provided by third party software developers. Horatio downloaded a software update to his trading platform. The update contained a bug. The bug interacted with Horatio’s expert adviser software, forcing a number of trades outside of the automated, predetermined boundaries that Horatio had authorised. Horatio lost USD 20,000 on these trades and asked Unintended FX for compensation. The dispute

Unintended FX denied any liability to compensate Horatio for his losses. Unintended FX said it was not at fault: the bug was caused by the third party software developer, and in any case there were effective disclaimers and limits of liability in Unintended FX’s standard trading contract with Horatio. Horatio said the terms of the trading contract were unfair, that he was not aware of the terms and, in any case, that Unintended FX must bear some responsibility in the circumstances. FSCL investigated how contract law, tort law, and the Consumer Guarantees Act 1993 applied to the facts. FSCL has jurisdiction to resolve any dispute involving “any act or omission by a Participant, in 1

The names of the parties have been changed.

12 YLC ADVOCATE

relation to a financial service” where the amount in dispute is less than $200,000.2 FSCL’s Participants include over 5,500 Financial Service Providers3 that must, by law, belong to an approved dispute resolution scheme like FSCL.4 Parties to a dispute routinely refer their dispute directly to FSCL, though lawyers providing advice to a client in a dispute about a financial service should note that: • FSCL’s jurisdiction often overlaps with the jurisdiction of the courts. • Parties do not require legal representation to access FSCL’s process. • FSCL’s process is free for the complainant in a dispute. FSCL’s overriding obligation is to do “what in its opinion is fair in all the circumstances of a dispute”, having regard to the law and general principles of good industry practice.5 Did the trading contract between Horatio and Unintended FX effectively exclude or limit Unintended FX’s liability?

Horatio and Unintended FX’s relationship was governed by Unintended FX’s standard form trading contract. While the trading contract disclosed software risks related to Unintended FX’s broking service at length, the trading contract did not specifically disclaim any liability Unintended FX may owe at law to Horatio. The disclosures only went so far as to put Horatio on notice as to potential risks (and therefore losses) he might face in using Unintended FX’s service. FSCL also found that Unintended FX could not rely on any disclaimers of liability in the software licence agreement that Horatio agreed to with the third party software developer when downloading the trading platform. Unintended FX was not a party to this contract. Did Unintended FX owe Horatio a duty of care?

To find that Unintended FX breached a duty of care to Horatio would require an extension of the law of negligence. While FSCL could not make such an extension, a court arguably could on the facts of this complaint. Relevant factors for considering whether a duty of care existed, and whether it had been breached, were: • There were no recognised duties at law directly applicable to customers of an online foreign exchange share trading platform in similar circumstances to this complaint. • The courts have decided in previous cases that an intermediary involved in the supply of a defective product can be liable where the intermediary has: – sold products it knew to be harmful; – failed to pass on manufacturer’s warnings or disclose the product’s potential for harm; or – failed to take reasonable steps to actively inspect the supplied product.6 • There was no evidence that Unintended FX knew or could have known of the bug in the software update before making it available to traders. 2

See FSCL’s Terms of Reference at [7.1] and [8.1(k)], available at Financial Services Complaints Ltd “Publications” (2013) Financial Services Complaints Ltd <http://www.fscl. org.nz/publications-financial-services> Under s 4 of the Financial Service Providers (Registration and Dispute Resolution) Act 2008, Financial Service Provider means “a person who provides or offers to provide a financial service”. Financial service is defined exhaustively in s 5 of the Act, and encompasses the services of financial advisers, brokers, banks and other lenders, insurers, trustees and others. Financial Service Providers (Registration and Dispute Resolution) Act 2008, s 48. The other approved dispute resolution schemes are the Banking Ombudsman Scheme and the Insurance and Savings Ombudsman Scheme Inc. FSCL’s Terms of Reference, above n 1, at [3.1].

Greyson Orlando | Wikimedia Commons

Bugs: cute but troublesome

• Unintended FX clearly outlined and attempted to disclaim the risks of software problems in a risk disclosure document. • The loss was somewhat remote. The faulty software had to interact with Horatio’s expert adviser software before it was capable of causing Horatio a loss. That is to say, not all Unintended FX’s clients using expert adviser software were affected by the bug. • While Unintended FX did not actively inspect the software before making it available to clients and took steps to make clients aware of any issues as soon as they arose, Unintended FX was in the best possible position to go out of its way to test software updates and ensure the software did not harm its customers. On this point, FSCL noted that Unintended FX was in a direct contractual relationship with the software developer. Aside from Unintended FX’s liability as an intermediary, the factors above were also relevant to consideration of whether Unintended FX had (and breached) a duty of care to ensure its service, broadly considered, did not harm Horatio.

However, there was a difficult question as to whether Horatio was capable of receiving CGA protection at all. Horatio first needed to prove he was a consumer under the CGA. Section 2(1)(a) of the CGA defines a consumer as someone who “acquires from a supplier goods or services of a kind ordinarily acquired for personal, domestic, or household use or consumption”. This definition focuses on the attributes of the good or service, not the attributes of the person acquiring the good or service. A business that buys ballpoint pens may therefore be a consumer.8 On the other hand, a person using a company’s shrink wrapping services was not a consumer under the CGA because the shrink wrapper “for the most part” supplied its services to construction and renovation professionals rather than to individuals for their personal, domestic or household use.9 FSCL’s view was that it would be very difficult for Horatio to prove he was a “consumer” under the CGA, given the lack of evidence regarding the use of trading platforms and foreign exchange broking services by New Zealanders in personal, domestic or household capacities. Outcome: a negotiated settlement

Did the Consumer Guarantees Act (CGA) apply?

FSCL found that Unintended FX breached the guarantee of acceptable quality of goods in the CGA as it supplied Horatio with a defective product.7 Unintended FX may also have breached CGA guarantees relating to its broking services. 6

Following the Donoghue v Stevenson [1932]AC 562 (HL) line of cases. Watson v Buckley, Osborne, Garrett & Co Ltd [1940] 1 All ER 174 and Hurley v Dyke [1979] RTR 265 are also relevant. In Watson a distributor of hair dye was liable for supplying over-concentrated hair dye to customers without testing the dye first. In contrast, an auctioneer selling a dangerous car on the basis that it was being auctioned “with all faults” was not liable for subsequent injury to the buyer of the car in Hurley. Computer software is included in the definition of goods in s 2(1) of the Consumer Guarantees Act 1993. Section 6 guarantees that goods supplied are of “acceptable quality”. FSCL found that Unintended FX “supplied” software to Horatio. Section 15 of the Act states that the guarantees apply when a good is supplied in connection with a service (such as Unintended FX’s broking service).

In large part, accepting either Horatio or Unintended FX’s arguments would require an expansion or elaboration of existing law. FSCL can only apply the law, not expand it or elaborate on it where there is uncertainty. While FSCL could not uphold the complaint in a formal recommendation, FSCL could (and did) negotiate a settlement between the parties to avoid costly and time consuming litigation. FSCL negotiated a USD 10,000 settlement agreement between Horatio and Unintended FX. A

As per an example used by Blanchard J in the leading case on the definition of consumer in the Consumer Guarantees Act: Nesbit v Porter [2000] 2 NZLR 465 (CA). Kaori Ltd v Shrinkforce Shrink Wrap Services Ltd (in Rec) [2012] NZHC 3204.

SUMMER 2014

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Lawyering for Good Althea Carbon SOL ICI TOR AT CH A PMA N TR I PP

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As the sole lawyer in my flat of young professionals and a volunteer for non-profits, I often received a variety of questions on topics such as consumer, tenancy, and employment law.. Even though as a corporate lawyer I didn’t necessarily know more about some areas of law than the average person, at least I knew where and how to look for the answers. The difference between the average person and me was that I had more confidence navigating my way through the legal system and I was more comfortable with legal jargon. It made me wonder how many people are disempowered simply because they don’t know the law, and how I could address this issue. Law for Change made me aware of the different opportunities available for me to use my legal skills for good. Law for Change Wellington

Law for Change Wellington is a youth-driven organisation that provides a forum for graduates and young lawyers to engage with public interest legal issues. Law for Change Wellington serves three purposes: as a forum to connect like-minded people, as an umbrella to coordinate and promote a cohesive public interest legal community, and as a channel to recognise existing public interest organisations and connect them with interested individuals. Law for Change runs events throughout the year with the aim of inspiring and empowering the legal community to effect positive change. Luke Fitzmaurice, one of the co-founders and regional coordinators of Law for Change, says he became involved in the organisation because he is passionate about the idea that everyone has something unique to give, and that they just need the platform to enable them to do so. Law for Change’s Mentor Lounge series last year is a perfect example of this platform. The series connected young lawyers and law students with people who work in public interest law. This was an awesome opportunity to have one-on-one conversations and pick the brains of passionate and talented people working in fields as diverse as social enterprise, human rights, and environmental law. These are the types of conversations that will hopefully spark interest in young lawyers and encourage them to think about what “giving back” to society means for them.

Michael ~Manas | Wikimedia Commons

“Knowledge is power.” This phrase captures the essence of public interest law. It was only in my first year as a lawyer that I truly appreciated what public interest law meant.

Lady Justice

This year

Law for Change Wellington has a range of events and projects planned for the year. The first Speaker Series is on Tuesday 8th of April, 5.30pm at Russell McVeagh. Amelia Evans, a human rights lawyer and founder of MSI-Integrity, and Steven Price, a barrister and a lecturer at Victoria University, will share their stories and journeys in public interest law. The event will also give people the opportunity to find out a bit more about Law for Change as an organisation, what they’ve done so far, and what they’re planning to do this year and beyond. Also in 2014 Law for Change will be re-running the Mentor Lounge, and from mid-year will be producing a monthly newsletter full of public interest law news and opportunities in Wellington. Be involved

There are so many ways of using our legal skills for good. We don’t all have to become full time public interest lawyers, but there are many ways, big or small, that we can serve. Law for Change may be able to “help you help others” or connect you with people/organisations who can. Law for Change Wellington wants to hear from anyone who is interested in being part of the team, has connections with other public interest organisations, or knows of potential sponsors who want to support the public interest law community. You can reach them at lawforchangewellington@gmail.com or at www.facebook.com/lawforchangewellington. They’ll also be updating their Facebook page with details about upcoming events, so like the page and share it with others who might be interested. A Thank you to Luke Fitzmaurice for giving an interview on behalf of Law for Change.

14 YLC ADVOCATE

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Event Update Drinks at Chicago Bar Charlotte Christmas GRADUATE AT R USSEL L MCVEAG H

– To kick off the 2014 social calendar for the YLC the “Welcome to 2014” drinks were held on the 5th of March at Chicago Bar. The place was full of Wellington’s young legal eagles shortly after the event’s 5.30pm start time – this was a likely result of the promise that upon arrival the first 100 people through the door would receive two free drinks. The crowd was a mix of fresh faces new to the Wellington legal scene, as well as a number of YLC event veterans. Chicago was abuzz with the chatter of old friends catching up and swapping stories of summer, and the small talk from the many newbies breaking the ice and meeting others for the for the first time. No doubt a number of these meetings were the beginnings of some wonderful friendships that will be solidified at future YLC events! Despite Wellington’s attempt to keep people away with some typically horrendous weather the event boasted an impressive turnout. Making one’s way from the entrance of Chicago to the bar was no mean feat. It was only through careful navigation of the dense sea of young lawyers that you could make it to the other side, inevitably having been caught up in a conversation or two on your way to grab a beverage. As Richard Evans so eloquently expressed at the event, a huge thanks goes to MAS and JLegal for sponsoring the drinks. A big thank you should also be extended to all those who came along and made the night such a success. We look forward to seeing you at other YLC events throughout 2014! A

SUMMER 2014

COATS & JACKETS Ani Chan

Case Officer, Supreme Court www.ahintofchic.wordpress.com

Buying a coat is never easy and often there many aspects to consider. The style, the colour, the texture and the quality are all major components to a perfect purchase. The winning coat should always be something that is the right fit and length for your body shape and suit the climate you live in.

16 YLC ADVOCATE

1. Cape

3.Matrix Drape

Gorgeous

Falling below the knee towards the floor, these are suited to the tall and the lean. Unfortunately these don’t suit everybody and if you don’t have the height, the coat will drown you out completely. Team this length with fairly minimal outfits to avoid being too over the top.

A.K.A the 360° cozy poncho. The cape is making a comeback this season so if you haven’t given these a chance in the past, you should try it this winter.

Pros: Dramatic and powerful. Always a statement piece and keeps you warm from top to bottom. Cons: Not a very forgiving length and can overwhelm your frame.

Beware of voluminous capes as these can make you look bulky up top. You can offset this by teaming them with cigarette style bottoms. Pros: Different and feminine. Cons: Are often sleeveless leaving your arms out in the cold.

d Sass an

Bide

2.Cheeky

JS Lee A/W14

The standard 3/4 should sit about midway on your thigh. This length is a common option and is most suited to those of an average height.

Cropped

To flatter a curvy body shape or to create a feminine silhouette, choose a coat that has a belt or tucks in at the waist. For those who are top heavy, a lower or v neckline will avoid bulkiness in the area.

Any coat that falls between your chest and above your hip (generally at waist length) is crop. These definitely inject a hint of cool into any outfit and can give the appearance of longer legs when worn with high-waisted bottoms.

Pros: A classic cut that stands the test of time. Cons: Due to being such a popular length, there are too many styles, cuts and colours to choose from! Zara

Pros: Cheeky and flirty. Cons: You may love the look but it may not love you. This is generally a hard style to pull off.

4.Classic 3/4

5.Mid Range

Draping just over your cheeks, this is the mid length coat. Trending this winter are mid length coats that has a straight and streamlined silhouette. Try something oversized and boxy for a more street and casual look. Pros: Pair with short garments and heels to create the illusion of killer pins. Cons: Not suitable for bottom heavy body shapes.

Checklist

Chanel A/W ‘2014

Liam A/W ‘2014

☑ Quality ☑ Fit ☑ Length ☑ Style ☑ Purpose

SUMMER 2014

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Event Update Sail Away on the Grad Cruise Charlotte Christmas GRADUATE AT R USSEL L MCVEAG H

– On the evening of Thursday the 20th of March, the new graduates on the Wellington legal scene were invited to a night of sailing, sipping champagne and sparkling conversation. Our trusty vessel for the event, the Sweet Georgia, was boarded at 5:15pm and punctually left the dock at 6pm before setting out to explore the waters of the Wellington Harbour. The sold-out event saw a large number of new grads come together for the three-hour voyage. Everyone in attendance (from a wide-ranging mix of Wellington organisations) was eager to swap stories of their first few weeks in the legal profession. After a serene day that culminated nicely in the evening cruise, the wind only slightly picked up, making for a delightful night of sailing. As the sun set those who had braved the outdoor decks battened down the hatches and moved inside for some food and warmth. With all the event’s attendees in the covered cabin of the Sweet Georgia, the small area was crowded and made interacting with the other graduates on the boat unavoidable. Whether chatting with old law school chums or navigating a new friendship, the event saw the graduates of Wellington come together for a sensationally social evening on the water. The crew of the Sweet Georgia provided a delicious dinner for the cruise-goers, with particular mention going to the delectable rum balls that were devoured as they were served for dessert. The crew were also extremely proficient at serving the masses of young lawyers who happily took to the cash bar to invest some of their hard-earned money from their first pay cheques. A big thank you must go to JLegal and MAS for sponsoring the evening as well as all the keen sea-faring grads that made the cruise such an excellent affair. We’d love to have you all on board for more YLC events in 2014! A

18 YLC ADVOCATE

YOUR FRIENDS WILL CALL IT LUCK. YOU CAN CALL HIM GRAHAM.

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Call us today:

0800 800 627 Visit us online at mas.co.nz MAS is a Qualifying Financial Entity (QFE) under the Financial Advisers Act 2008. Our QFE disclosure statement is available at mas.co.nz or by calling 0800 800 627.

SUMMER 2014