LAWTALK NEW ZEALAND LAW SOCIETY NZLS EST 1869
25 MAY 2012 / 796
FOR THE NZ LEGAL PROFESSION
Social networking If social media is used right, it can be a powerful tool for lawyers
FEATURE PAGE 4
THE ESSENTIAL IN-HOUSE ELEMENTS
MY CLIENT MADE ME DO IT
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FEATURE: SOCIAL MEDIA
“Our intuition tells us that there are some things that a client can’t instruct his or her lawyer to do.” p. 21
“It’s not about huge numbers, it’s about quality.”
CLANZ Conference 2012 By RACHAEL BRECKON
The Essential Elements of In-House was the theme for this year’s CLANZ conference with the speakers and the topics tying into the chemistry of success...
11 Four lawyers win CLANZ awards The contributions of four outstanding in-house lawyers were recognised at the CLANZ Gala...
12 Elected to lead the Law Society’s three sections The New Zealand Law Society’s three sections – the Property Law Section, the Family Law Section and CLANZ – recently held elections for officers...
Mediation masterclass very successful
Social media: A virtual cocktail party?
The partnership between the New Zealand Law Society and Massey University offering mediation training for lawyers has moved to the next phase...
By RACHAEL BRECKON
Social media is arguably the most abstract of current marketing platforms. It’s a soft sell approach focused around visibility akin to physical social networking...
New Community Law website bulging with resources
The social frontier
By HANNAH GRANT
By HANNAH GRANT
A new national face of community law in New Zealand has been unveiled...
New Zealand is one of the most technologically connected nations on the planet, enabled largely by social media. Whether it’s blogging, tweeting, Facebooking, or LinkeIning, everybody’s embracing the social frontier...
SOCIAL MEDIA FACT SHEET
21 My client made me do it By DUNCAN WEBB
A lawyer’s function is to help his or her client achieve their objectives. It is fundamental to this that the lawyer follow the client’s instructions...
People in the law
From the Courts
Lawyers Complaints Service
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LAWTALK 796 / 25 MAY 2012
FROM THE LAW SOCIET Y JONATHAN TEMM
he New Zealand Law Society works hard to maintain the integrity of our countryâ€™s legal profession, both domestically and internationally. The Law Society takes an active role in international legal organisations. These include the Presidents of Law Associations in Asia, the International Bar Association, LAWASIA, the American Bar Association and the Commonwealth Lawyers Association (CLA). I recently attended and spoke at the CLA Regional Conference in Sydney. At this conference it was remarkable to see countries as diverse as Nigeria, Jamaica, Ireland, Malaysia and Canada brought together due to a shared colonial history and contemporary common law bonds. Integral to this annual event is human rights promotion and discourse, a significant part of the CLA workload and interest. The CLA member countries come with a wide spectrum of human rights issues and rule of law rankings.
Some of the CLA projects and achievements are very impressive. I encourage any New Zealand lawyers with an interest to visit the CLA website or consider becoming a member for around ÂŁ40. Back on the New Zealand scene, I would also like to take this opportunity to briefly touch on lawyer to lawyer complaints. As you should be aware, lawyers have a duty to contact the Law Society when they believe a fellow practitioner has breached the rules, failed to honour undertakings, defalcation or other serious misconduct. Unfortunately, some lawyers are using the complaints process to continue petty arguments, further litigation arguments on mutual files, or just to aggravate another practitioner. This is quite wrong and wastes the resources of your professional organisation. Practitioners should reflect before commencing complaints against another lawyer. I strongly recommend that if you are contemplating making such a complaint, that you seek some independent objective advice from a senior practitioner away from your firm or chambers.
I am proud to represent New Zealand, which is seen as an international human rights leader. We were the best performer in the Asia Pacific region in the 2011 World Justice Project rule of law index. Our main function at the forum was as a donor country, sharing our knowledge and giving guidance on how an effective democracy can function.
LAWTALK 796 / 25 MAY 2012
Jonathan Temm New Zealand Law Society President
LAWTALK More than 12,000 copies of LawTalk are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certificate. Although the number of lawyers with practising certificates varies, it is typically around 11,500. Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.
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Coming up … Mapping the common law A line-up of high-powered speakers will address the Legal Research Foundation’s Mapping the Common Law conference to be held in Auckland on Friday 29 June. The seminar, subtitled Testing the boundaries between contract, tort, restitution and equity, is the foundation’s major event for 2012 and will be of interest to the judiciary, common law practitioners and legal philosophers. The symposium will examine the classification of the common law with the aim of exploring how and why the law organises itself in this way. Common law and equity are classified into super types, including tort, contract, restitution and equitable claims, as well as subtypes, such as trespass, negligence and detinue.
judicial appointments and other matters relating to judges; specialisation and the future of the commercial list; and representation.
This event, which follows on from the launch of the New Zealand Justice Forum just over a year ago in the Beehive, will be held from 12:30-5pm, on the 10th Floor of Otago University’s Richardson Building and is open to all lawyers and judges in the South Island. See www.otago.ac.nz/law/lic/ forum/index.html. RSVP to law@ otago.ac.nz with “Civil Justice Forum” in the subject line by 5 June.
See www.legalresearch.org.nz to download a programme, or email info@ legalresearch.org.nz to register. Places at the conference dinner are strictly limited.
This first series will explore:
DESIGN: Jesse Cogswell Ph +64 4 463 2981 firstname.lastname@example.org
Subtitled Towards a new Courts Act, the forum is co-hosted by Otago University’s Legal Issues Centre and the Law Commission. The aim of the forum is to elicit a wide range of legal (and some lay) opinion
ACC DISPUTES? The views expressed in LawTalk are not necessarily those of the New Zealand Law Society. Articles may be reproduced provided acknowledgment is given to LawTalk.
Inaugural sports law series
A South Island Civil Justice Forum will be held in Dunedin on 13 June.
Discussion therefore will focus on three areas:
Speakers include Professor Michael Lobbam, Professor of Legal History at Queen Mary University, London; Professor Peter Watts of Auckland University’s law faculty; Fordham University School of Law Professor, Benjamin Zipursky; and the Chief Justice, Dame Sian Elias. Conference chair, Justice Stephen Kos QC, will both open and close the conference with remarks from the chair.
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throughout the South Island, to discuss the Law Commission’s second Issues Paper in its review of the Judicature Act 1908, Review of the Judicature Act 1908 – towards a Consolidated Courts Act (NZLC IP29, 2012).
JOHN MILLER LAW
Level 1, 13 Leeds St I PO Box 6314, Wellington +64 (04) 801 5621 I firstname.lastname@example.org www.jmlaw.co.nz
The Australia and New Zealand Sports Law Association (ANZSLA) and AUT will hold their inaugural sport management seminar series next month. Called Sport Management Think Tank 2012, it will be held from 4:30-6:30pm on 5 June at AUT North Shore. •
Ambush Marketing with Sue Ironside (Partner, Baldwins) and Sean Phelps (PhD, AUT Sport & Recreation); Grassroots Event Leverage with Kerry Clark OBE (CEO, Bowls NZ) and Katharine Hoskyn (MPhil Post-Grad, AUT); and Sport Labour Migration with Raelene Castle (CEO, Netball NZ) and Richard Wright (PhD, AUT Sport & Recreation).
See www.anzsla.com.au/content/ anzslaaut-sport-managementseminar-series. LT
• Wish to refer them to a specialist ACC law firm? • With nationwide coverage? • We deal with ACC matters only and will not represent your clients in other areas.
LAWTALK 796 / 25 MAY 2012
The social frontier By Hannah Grant New Zealand is one of the most technologically connected nations on the planet, enabled largely by social media. Whether it’s blogging, tweeting, Facebooking, or LinkedIning, everybody’s embracing the social frontier.
accounts in New Zealand; • New Zealanders are the fourth largest global user of LinkedIn; and • You Tube is the most viewed entertainment site in New Zealand.
• 2,402,080 plus New Zealanders are on Facebook, almost half of our population;
High as these figures are, though, they don’t seem to translate to our legal profession, which has been doggypaddling rather than freestyling in the social media waters. This is not surprising as using social media for professional services marketing is a challenge; there is a fine line between sinking and swimming.
• there are 199,800 plus Twitter
The sometimes enormous exposure
Statistics, compiled by social media agency Catalyst90, speak volumes: • 96% of New Zealanders who use the internet are active on social media;
LAWTALK 796 / 25 MAY 2012
gained through social media use means it’s a medium not to be scoffed at as an avenue for marketing. As more people are spending more time on the internet and social media sites, they are often finding services they need through these sites, whether directly or indirectly. A recent United States report from ALM Legal Intelligence says that the importance of social media in attracting business to law firms has grown substantially. It showed that of the law firms surveyed almost half were gaining new clients through the use of social media (49% of United States law firms said that blogging and social
SOCIAL MEDIA networking have helped produce new business leads). This indicates that law firms may be gaining confidence in the use of social media as a serious business development strategy. ALM’s Kevin Iredell says “the scepticism of a decade ago has given way to a growing appreciation for the ways that blogs and various other social media and networking tools can be deployed to help build the reputation of individual lawyers and practice groups, as well as enhance law firms’ overall marketing efforts.” Hayden Raw, Managing Director at the Common Room, a strategy-led business marketing company in Auckland, says that social media works really well for some people, but for others it’s a waste of time. It’s all based on what people are trying to achieve. Law firms should first sit down and think about what they want to get out of social media, Mr Raw explains. Firms should ask themselves how social media could best be used to reach their marketing/business objectives, such as thought leadership and/or business generation. “We sometimes ask people what sort of persona they would take on at a party. Would they be the loud boisterous one; the quieter one who sits in the corner and has in-depth conversations; or the funny entertainer for the frivolous side of conversation? “Once you understand that, you can know what kind of personality you should portray in a social space. It all depends on the marketing goal. Whether it is content on your website, blog entries, tweets, posts or press releases, what gets your firm attention is valuable content. When using social media it is important to be relevant and insightful.
direct and to the point; concision is what fuels social networks, especially Twitter.
of someone in a company taking ownership of social media activity and being brand advocates in the process.
Tom Reidy, CEO at Catalyst90, says that being brief is important as people nowadays have short attention spans.
“People should own the content. Social media is person to person not business to business. If a business is personable, you will get followers/likes.
He says that to be attractive to the social media market you should engage as an individual first and interest in you and your brand/company will follow.
Through social media, professional services should be trying to break down that barrier that people have with lawyers and accountants and making people want to interact with you. It’s not about huge numbers, it’s about quality
Hayden Raw “I’m a fan of using people within the organisation and championing them and making them be the voice of the company through social media.
“Through social media, professional services should be trying to break down that barrier that people have with lawyers and accountants and making people want to interact with you. It’s not about huge numbers, it’s about quality,” says Mr Raw.
“Accountancy, for example, is not the sexiest profession to be in, which provides a challenge for social media, so we try and build a bit more of a relationship with the key staff, rather than making it too corporate. That way it’s more accessible. If it’s too corporate, it’s not that fun and people won’t be interested.
In New Zealand, Twitter currently has over 50,000 active users. If you manage to grab the attention of a few of your followers through 140 characters, your musings have the potential to spread like wild fire through many social media channels.
“It comes down to just having conversations with people but through a different medium. What I would be doing on the professional services part of things is providing useful information about the industry you are in,” he says.
To do this, your content needs to be
Mr Reidy also stresses the importance
Through social media, ultimately you want to lead people to your website somehow to get in touch with you, Mr Reidy explains. “Facebook can be a great way to connect with other New Zealanders because there are 2.4 million people on it but you can’t search Facebook through Google. Twitter, on the other hand, is really great for search and you can engage with more influential people. “One of the simplest social media strategies to put in place is that if someone talks to you though one of your channels, talk back!” he says. In the ALM report mentioned above, more than 40% of those surveyed said that blogs and social media networks have helped to increase the number of calls their firms receive from the media and also increased the number of speaking invitations their lawyers receive. Lawyer Joshua Hitchcock runs a blog (http://roiamaori.wordpress. com/) and a Twitter account (@ jcphitchcock) and says that his public profile has grown substantially since he started using the media. “I have been approached by various media about Māori issues, native affairs and indigenous law. I certainly have much more of a profile than I did a year ago when I started,” he says. If social media is used right, it can be a powerful tool for lawyers to engage with communities and potential clients and build their profile, Mr Hitchcock explains. “You always need to remember, though, that it is a public medium. One of my professors once told me to never say anything, or write anything down that you want to see on the front page of the Herald.” He says that this is great advice to conduct your social media dealings. “It’s quite apt because there have been days where I have seen my blogs quoted in the New Zealand Herald. My advice is similar. Don’t do anything online that you wouldn’t do in your professional dealings.” LT
LAWTALK 796 / 25 MAY 2012
Social media: a virtual cocktail party? By Rachael Breckon Social media is arguably the most abstract of current marketing platforms. It’s a soft sell approach focused around visibility akin to physical social networking. Unlike a fleeting face-to-face encounter at a professionally orientated cocktail function, the work you put into an online presence is permanent and searchable for years to come. If done right it can be an on going database proving a practitioner’s skills and expertise. Take this LawTalk article for example. All commentators were found, not through word of mouth or previous professional connections, but through online searches and social media networks. Could LawTalk find you? If not, don’t stress. It may not be panic time … quite yet. Professional services marketing on social media is still in its infancy according to barrister John Edwards (@ JCELaw). He uses his position on the New Zealand Herald’s list of the top 50 tweeters to illustrate this: “Everybody is still learning. I am not an expert.”
focused LinkedIn (often referred to as an online CV) to advertise for staff and connect with people. “If you are looking for a candidate, it’s not just putting an ad on Seek or Trademe any more. There are a whole range of places you need to be,” he says. He warns not to be fooled into believing social media is enough to build strong relationships. “I think that even if you have a relationship on LinkedIn that you still meet [that person] for a coffee,” Mr Sutton says. “You need human communication as well.” Cathy Mellett, who manages social media for Quay Law in Auckland, says choosing a platform is about “horses for courses”. Quay Law strategically uses social media to “build rapport” with potential and existing clients. The Auckland-based firm ensures their content is well placed so existing and potential clients can pick up some useful information, interact and share with the community they are part of.
Facebook pages to check out New Zealand Supreme Court Blog: www.facebook.com/ nzscblog. Wellington Young Lawyers committee www.facebook.com/ younglawyerscommittee. Victoria University of Wellington Law Students Society www.facebook.com/ VUWLSS. Chapman Tripp www.facebook. com/chapmantripp?ref=pb.
Successful legal tweeters to check out Jeremy Sutton: https:// twitter.com/#!/jeremysuttonnz. John Edwards: https://twitter. com/#!/JCELaw. Quay Law: https://twitter. com/#!/aucklandlawyer. Media Arts Law: https:// twitter.com/#!/MediaArtsLaw. Rick Shera: https://twitter. com/#!/lawgeeknz.
As a specialist in information law, Mr Edwards says he must be on social media platforms to maintain professional integrity.
But, Cathy warns, “you have to have nous as once you have done something, it’s out there”.
New Zealand LinkedIn groups for lawyers
“Issues come up about social media, so I feel that I need to be there to have any credibility. So I have signed up for everything,” he says.
Social networking styles
New Zealand Business and Professional Network
The use of social media has also been a way to market his professional services, and through this forum Mr Edwards is able to paint the picture that he’s “a guy that knows about information law”. “I have had tweets turn into news stories on occasion. I have had people ‘direct message’ me about legal issues,” he says. Barrister Jeremy Sutton from Specialist Family Lawyers (@jeremysuttonnz) says through Twitter you can reconnect to previous colleagues and employers, meet other lawyers and refer clients to each other. Mr Sutton also uses the professionally
LAWTALK 796 / 25 MAY 2012
Below are different ways New Zealand firms and practitioners are using social media to successfully promote themselves in different ways.
New Zealand Lawyers Network
Some are chatty and personal while others are more focused on sharing and exchanging professional information. Like people, each one has a different style, feel and network.
Law Society social media presence
One way to approach social media is to look around, get a feel for it, and think about what style would work for you and/or your business. Then plan an approach. “There is still plenty of scope there for people to develop [social media] and find their own way,” according to Mr Edwards.
The Law Report Group
• www.facebook.com/mylawsociety. • https://twitter.com/#!/mylawsociety. *** Please note this by no means intends to be a comprehensive guide to legal social media sites in New Zealand. It is a limited collection of a few lawyers using social media in a variety of styles, which may be of interest to practitioners who are interested in embarking on a social media marketing campaign. LT
96% of New Zealanders who use the internet are active on social media. Of these, 79% use Facebook, 16% use LinkedIn and 9% use twitter.
Facebook is only five years old, but has more than 800,000,000 users – making it the third largest population in the world.
Publicly introduced 15 July 2006. It took 3 years, 2 months and 1 day to send the first billion tweets. Now it only takes six days.
There are 199,800+ Twitter accounts in NZ.
Twitter regularly reports breaking news before mainstream media. It incites social, political and economic change with access to people that mainstream media cannot command.
Social media network for business professionals. In New Zealand, there are 530,000+ LinkedIn users. New Zealanders are the fourth largest global user of LinkedIn.
More than 50% of Facebook users log in every day.
Niche Social Networks
The average user has 130 friends. Google+: direct competitor to Facebook. 90m+ users globally. People spend over 700 billion minutes on Facebook every month.
Instagram: sharing through photos. 10m+ users globally.
1,150 new Facebook pages are opened every day.
Path: intimate sharing with family and friends through pictures, thoughts and music: 500,000+ users globally.
New Zealand users spend an average of 311 minutes per month on Facebook.
Pinterest: online pin board with sharing. Tumblr: the easiest way to get blogging. 39.5m blogs as at January 2012.
43% of Facebook users in the US click ‘unlike’ on a brand because the brand has overmarketed to them.
Yelp: restaurant rating network. 54m+ users per month reading 17m+ reviews. Flickr: 32m users globally. 4Square: 10m users globally Non-English Markets: Qzone (China – 480m). Badoo (Latin America/Europe – 133m). Orkut (India/Brazil – 100m).
YOUTUBE You Tube is the most viewed entertainment site in New Zealand. 48 hours of video are uploaded every minute, eight years of content uploaded every day. 150 years of You Tube video are watched every day on Facebook.
When consumers join a brand’s community, whether it be Facebook, Twitter or elsewhere: 79% do it to get more information on the company. 71% are more likely to purchase from the brand. 66% are more brand loyal. 63% will recommend the brand to friends/family.
Satictics compiled by social media agency Catalyst90 at November 2011.
LAWTALK 796 / 25 MAY 2012
PEOPLE IN THE LAW ON THE MOVE Alistair Bowers has begun practising as a barrister sole in Nelson, specialising in civil litigation and relationship property matters. Louisa Boyd has joined Buddle Findlay’s Auckland office as a solicitor in the banking and finance team, specialising in tax and charities law. Before joining Buddle Findlay, Louisa worked at a general practice law firm and in the tax team at another firm. Bridget Smith has been appointed a partner of Swarbrick Beck MacKinnon. Bridget joined SBM as senior associate in March 2011 and has 10 years’ experience in employment law. She advises both employers and employees. Kellie Dawson has joined North South Environmental Law as an associate. Kellie has a background in civil litigation, including experience in property law, company law, contract and tort. Kellie specialises in civil litigation of environmental disputes, law of the sea, and resource management law.
LAWTALK 796 / 25 MAY 2012
Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. You may also send photos (preferably colour) in hard copy, on disk or by email in JPG format scanned at 300dpi. Items should be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, tel (04) 463 2982, fax (04) 463 2985, email email@example.com. The usual editorial discretion applies.
Ben Lenihan, previously an associate in the Christchurch corporate commercial team of Duncan Cotterill, has moved to the firm’s Auckland office. Ben specialises in the TMT (Technology, Media, Telecommunications) sector, having a background in IT and e-commerce. He is also experienced in general commercial acquisitions, mergers and joint ventures. Steve Taylor has commenced practice as a barrister and mediator in the Hutt Valley, after release from the New Zealand Defence Force as Director of Legal Training and A/Director Legal Services (Wellington Region). Steve’s practice is in criminal, traffic, family, employment, military law and mediation. Construction law specialist Brian Clayton has joined Chapman Tripp’s Auckland office. Brian joins the firm from Shearman & Sterling’s Abu Dhabi office, where he was a partner in the project development and finance team and ran the firm’s construction practice. Brian will become a partner once he has satisfied New Zealand Law Society obligations. Brian specialises in construction and projects, with particular expertise in the energy sector, and has also practised in
London, New Zealand and Australia. Tonia Brugh has been appointed a senior associate in Tompkins Wake’s commercial and corporate team. Ms Brugh specialises in trademarks and brand strategy and the protection and commercialisation of intellectual property. Carl Rowling has been appointed a consultant to Tompkins Wake’s specialist local government team. Mr Rowling provides legal and strategic advice in the context of complex commercial transactions in both the private and public sector with a particular focus on local government.
PEOPLE A Memorial Sitting to acknowledge the unique and significant contribution of John Haigh QC to the practice and development of employment law in New Zealand will be held in the Employment Court in Auckland at 4pm on 8 June. Counsel are invited to robe. The sitting will be followed by a reception at the Rydges Hotel in Federal St.
PEOPLE IN THE L AW David left that firm in May 1978 and established the Haigh Lyon partnership with Frank and John Haigh. On 1 June he will have completed 34 years at Haigh Lyon. David’s practice is based on personal clients. Third generation clients are numerous and fourth generation not unusual. Arriving at 7am each morning, he is the first in the office. He works a full week. In his more than 50 years in the law, David has missed a mere seven days due to illness.
At the function to celebrate his 50 years as a lawyer, David Lyon and his wife Rosemary.
Haigh Lyon held a very successful function on 9 May to celebrate the 50th anniversary of David Lyon’s admission. The evening was attended and enjoyed by David’s friends, clients, family and Haigh Lyon staff. David began work as a law clerk with Reyburn McArthur and Boyes in 1957. That firm was founded in 1907 by Harry Reyburn, who was joined in partnership by Malcolm McArthur in 1910 and postWorld War II by Rex Boyes. Justice Woodhouse admitted David on 29 March 1962, along with Bruce Berman, Michael Cormack, Ed Doherty and the late David Rich. Bruce and Ed were present at the function. David was made a partner of Reyburn McArthur three days after his admission, which must be a record.
Law firm news Christchurch firm Walker Rodger has amalgamated with Corcoran French. Walker Rodger principal Michael Walker, associate Carol Eddington and four legal executives have joined Corcoran French, making a total of 11 new staff joining the firm over the last three months. Michael’s specialties include property law, wills, trusts and estate administration, and buying and selling rural and lifestyle properties. Carol’s practice includes residential conveyancing, business law, trusts and asset planning, and estate administration. The expanded Corcoran French now has new offices in Christchurch city (Moorhouse Avenue) and Kaiapoi, with satellite offices in New Brighton and Belfast. Michael will continue his regular visits to Akaroa the second Friday of every month.
David is a Sunday farmer. He and long term friend John Lockington own almost 100ha in the upper Henderson Valley where they farm cows and sheep. At home he is a gardener and beekeeper. Most holidays are spent at the family bach at Matapouri, which David unashamedly describes as the world’s most beautiful beach. David and his wife Rosemary have been married for 49 years. They have three children and six grandchildren. Wellington lawyer Amelia Keene has won this year’s New Zealand Law Foundation Ethel Benjamin Scholarship. A solicitor at Chapman Tripp Sheffield Young, Amelia will use the
Professor Mark Henaghan has joined the advisory board of Auckland-based Family Law Results. Professor Henaghan is joined by Michael Masterson, Managing Director at The Bottom Line Expense Reduction Ltd; Selina Trigg, Principal of Family Law Results and Mark Greenslade, General Manager of Family Law Results. It is believed that this is the first advisory board established for a law firm in New Zealand. Advisory boards are becoming increasingly popular with SMEs as an alternative to the more traditional board of directors. They avoid the formal responsibilities and costs associated with a board of directors but can help business owners clarify their business objectives, set strategy and implement change to achieve growth. Rodney Lewis and Treasure McKinstry, partners of Rodney Lewis Law, now conduct their practice from The Radio Network House, Hardley Street, Hamilton, just around the corner from their former premises at 960 Victoria
$50,000 award to undertake an LLM course at Columbia University in New York. Her research paper will compare regulatory models of freshwater management in New Zealand and the United States, focusing on environmental federalism. “The central thesis is that the National Policy Statement on water represents a shift away from regional council autonomy towards central government control,” she says. “There’s been a lot of analysis on environmental federalism in the US, in terms of whether it achieves better water outcomes, from both an economic and a public participation perspective. But it hasn’t been the focus of academic commentary here. “I don’t necessarily think centralism is bad. The question is how we can best structure it to achieve the right balance.” After being admitted, Amelia was clerk for the President of the Court of Appeal, Justice O’Regan. Before that, she gained a First Class Honours degree in law from Victoria, along with a BA in History and Philosophy. The Ethel Benjamin scholarship honours New Zealand’s first woman barrister and solicitor, who was admitted in 1897. Since the centenary of this event, the Law Foundation has awarded this scholarship annually to outstanding New Zealand women law graduates for post-graduate study.
Street. All other contact details remain the same. Anderson Lloyd and Kensington Swan have formed an alliance to provide legal services relating to the rebuild of Christchurch. The two firms say that the move is not a merger and that the alliance is confined to the provision of legal services specifically relating to the rebuild. An audio-visual message to clients was the way technology and intellectual property law firm, Hudson Gavin Martin (HGM), chose to celebrate its new partnership with the Royal New Zealand Foundation of the Blind (RNZFB). In lieu of Christmas presents for their clients last year, HGM donated to the RNZFB’s digital library project. The donation was used to assist the RNZFB in purchasing additional talking book players. To thank their clients, HGM decided to create a brief audiovisual message to record the RNZFB’s appreciation. LT
LAWTALK 796 / 25 MAY 2012
Sir Ray Avery
Mike Brooker, John Sneyd, Colin MacDonald, James Elliot
Nigel Barbour, Vanessa Oakley, Dave Whiteridge
CLANZ Conference 2012 By Rachael Breckon The Essential Elements of In-House was the theme for this year’s CLANZ conference with the speakers and the topics tying into the chemistry of success. In-house lawyer, comedian and MC James Elliot hosted the two days of speakers and seminars in a hazardous materials suit and safety goggles. He combined his professional expertise in law and humour to keep discussion on track and lively. The first speaker of the 25th annual conference was Kiwi Bank New Zealander of the year 2010 Sir Ray Avery, who spoke on Observations of Life, Science and Building a Better a Better World. Sir Ray spoke of his journey from foster care to life on the streets to becoming an award-winning scientist, New Zealander of the Year and being bestowed a knighthood in 2011. The Formula for Success was next on
LAWTALK 796 / 25 MAY 2012
the agenda. Charles Spillane, General Manager Corporate Affairs, Auckland International Airport, Victoria Spackman, Chief Executive, Gibson Group, and Craig Mulholland, General Counsel, ANZ took part in a panel discussion. Each of these prominent in-house lawyers spoke on how to be seen as more than just a lawyer, how in-house counsel can earn and keep their place at the executive table, and how to create opportunities to demonstrate leadership. Former CLANZ president Jeremy Valentine used Richard Susskind’s concept: The law delivers too many ambulances at the bottom of cliffs and not enough railings at the top, in his opening address. Mr Spillane challenged this, pointing out that a cliff was not dangerous if the person had ropes to guide them.
An in-house lawyer’s place at the ethical heart of an organisation was at the forefront of the discussion through this session. The session planted the seed for a conversation on how to communicate to an organisation executive that a proposed course of action is not legally possible. This discussion ran over several subsequent sessions with panel members generally advancing the view that while an in-house lawyer’s duty is first and foremost to the court, an inhouse lawyer should always try to offer an alternative solution that is lawful and enables the organisation’s progress, rather than creating a road block with a straight “no”. A further panel discussion, e = mc2 Delivering Value at the Speed of Light featured three presenters who had all worked in roles that required urgency: Brigadier Kevin Riordan, New Zealand Defence Force, Clare Bradley,
Four lawyers win CLANZ awards The contributions of four outstanding in-house lawyers were recognised at the CLANZ Gala Dinner and Awards ceremony on Friday 11 May. The dinner and awards ceremony was held on the final day of this year’s 25th CLANZ Conference, held in Queenstown. The winners are: Chapman Tripp Public Sector InHouse Lawyer of the Year Bronwyn Arthur, Chief Legal Officer of the Canterbury Earthquake Recovery Authority (CERA), was named the Chapman Tripp Public Sector In-House Lawyer of the Year. Ms Arthur was required to undertake the daunting task of providing interpretation and conveying application of the brand new Canterbury Earthquake Recovery Act 2011 in a state of national emergency. Ms Arthur will receive a scholarship package with a value of $5,000 to be spent on development activities for her and/or her team.
MediaWorks, and Juliet Glass, formerly with Rugby World Cup NZ. All three presenters gave insights on how to give accurate legal advice in times of crisis. The key element of success is the ability to strike a balance between deliberation and decisiveness according to Mr Riordan (via Napoleon). He also began a discussion that was reflected on during subsequent sessions. He suggested asking “urgency mongers” why something was important. This idea of whether you question management or try to prove your worth through acting promptly was debated throughout the subsequent sessions on day two. The debate was seemingly put to rest when Colin MacDonald, Chief Executive, Department of Internal Affairs agreed with Mr Riordan during the session: Creating Chemistry – Building Relationships with your
LexisNexis Private Sector InHouse Lawyer of the Year Victoria Spackman, Chief Executive Officer of the Gibson Group, was named the LexisNexis Private Sector InHouse Lawyer of the Year. Ms Spackman has recently been promoted from Legal and Business Affairs Manager for the Gibson Group to Chief Executive. Ms Spackman has been awarded a scholarship package to be spent on development activities for her and/or her team valued at $5,000. MAS Young In-House Lawyer of the Year Yazmin Juned, a senior solicitor at Housing New Zealand Corporation (HNZ), was named the MAS Young InHouse Lawyer of the Year. The young lawyer was able to quickly grasp a sophisticated appreciation of the legislative and Internal and External Stakeholders. He said it was important to ask why, as things weren’t always urgent just because they came from the top. Conference attendees were also able to choose elective sessions that fitted their professional needs. These included The Theory of Relativity – An Analysis of Directors’ Duties in Light of Recent Case Law presented by Graham Switzer and Gordon Wong from Duncan Cotterill. Jason Weir and Barry Jordan from Deloitte offered information on the critical role technology plays in responding to fraud, breach of regulations and resulting litigation in another session. Katie Carson and Hayden Wilson from Kensington Swan gave practical tips on the “rocket science” of negotiating and drafting effective indemnities and limitation of liability provisions. During the two days of discussion,
political context in which HNZ operates when she joined the team and became responsible for tenancy services. This expertise was soon put under the grill on the factually and legally intricate case of three HNZ tenants, who were evicted, claimed unlawful discrimination and appealed the case right through to the Court of Appeal. This is commonly referred to as the Pomare litigation. Ms Juned will receive a scholarship package with a value of $5,000 to help her develop further in her career. Wigley & Company Community Contribution Award Cameron Madgwick, Associate General Counsel at Contact Energy and chairperson of Community Law Centres o Aotearoa and the Wellington Community Law Centre, received the Wigley & Company Community Contribution Award. A second time winner of this award, in 2009 Mr Madgwick was recognised for the significant pro bono work he had done at the Wellington Community Law Centre. Since then he has extended his work to a national scale. Mr Madgwick will have $7,000 paid to his chosen cause. LT presentation and debate there were also sessions on personal growth and health. Rebecca Kitteridge and Andrea Harcourt spoke on the Art of Alchemy – Bringing Your Authentic Self to Work with advice on how to be successful while also staying true to who you are. Miranda Harcourt spoke on connecting with people and gave advice on the importance of remembering to breathe when you listen, which many of us forget to do. The successful and informative two-day conference was rounded off with: The Theory of Evolution – Wellbeing and High Performance Presented by Dr Tom Mulholland. Dr Mulholland gave tips on healthy thinking and its importance to the legal profession, his journey to discovering it through his own experience with depression, and the hardware and software that make up the brain and how to re-order both. LT
LAWTALK 796 / 25 MAY 2012
Elected to lead the Law Society’s three sections The New Zealand Law Society’s three sections – the Property Law Section, the Family Law Section and CLANZ – recently held elections for officers. In this issue of LawTalk, we feature those who have been elected or reelected to office on the executives of the three sections. The Property Law Section represents
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Chris Moore – chair An inaugural member of the Property Law Section when it was established in 2000, Chris Moore has been on the PLS Executive since its inception. Chairing the PLS is just one part of a big Law Society portfolio Mr Moore holds. He is also President of the Auckland branch – in fact he was its inaugural President – and this year he became the Law Society’s Auckland Vice-President. Mr Moore has prepared and presented numerous Law Society and industry seminars covering subjects ranging from resource management through to construction and law firm management. He has also been involved in NZLS CLE committees and chaired the NZLS CLE Property Law Conferences in 2004, 2006 and 2008. He has served as the section’s representative on the NZLS Representative Advisory Committee from 2008 to 2009, as a member of the NZLS Services Delivery Group from 2009 to now and as the current executive liaison for the PLS Public Sector and Resource Management Technical Committee. A partner of Meredith Connell and a member of the firm’s board, he has nearly 35 years’ experience in commercial and commercial property. Through his involvement in the PLS
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the interests of a large number of New Zealand’s property lawyers. With around 1,400 members, the section provides services and support for its members relevant to the development and practice of property law in New Zealand. The Family Law Section represents the interests of about 1,000 family lawyers. It provides services and support for its members relevant to the in the last 10 years, he has worked to promote the true role of property lawyers. He considers this to be far more than a conveyer of property embodying a multitude of skills and talents including tax, resource management, dispute resolution and similar disciplines all with a common theme centred on property. Mr Moore is married to Heather, a practising naturopath, and they have three children. Two of them in law: daughter Sarah with Minter Ellison in Wellington, while son George works for Chapman Tripp and is currently undertaking his professionals. Son Tom is a marketer in London. He has a wide variety of interests, from reading and spending time with family and friends to sporting interests, which include running, swimming, tennis, windsurfing and snowboarding. Last year, Auckland Transport appointed him to run the inquiry into transport issues arising on the opening night of the Rugby World Cup. He is also deputy chair of the Hearing House, a national charity involved principally with deaf children. Andrew Logan – deputy chair Andrew Logan has been on the PLS Executive since 2002. Previously, he served as the section’s nominee on the NZLS CLE Board and he chaired the NZLS CLE Property Law Conference in Wellington in 2010. A partner of Mortlock McCormack Law in Christchurch, he has 23 years’ experience in property and commercial matters. Mr Logan says he loves what he does and enjoys the ever changing world of property law and the new challenges created by legislative and technological changes. He finds that being on the PLS Executive often puts him at the front of those challenges.
development and practice of family law in New Zealand. CLANZ (Corporate Lawyers Association of New Zealand) supports and represents the interests of over 2,300 in-house lawyers – more than 20% of the New Zealand legal profession. CLANZ members are lawyers who work in corporate, state sector, local government, academic, not for profit and other organisations. Peter Fanning – treasurer Elected to the PLS Executive in 2008, Peter Fanning is also the convenor of the PLS Rural Transactions Committee, executive liaison to the PLS Property Transactions Committee and a member of the PLS Home Equity Conversion Schemes Review Working Group. A partner of Tompkins Wake in Hamilton, he is a director of NZ Law Ltd and NZ Law Financial Planning Ltd. He chairs the NZLS Waikato Bay of Plenty branch Business and Property Law Committee and is a member of the Waikato Bay of Plenty Cost Revision Committee and co-organiser of the NZLS Rural Law Conference. Mr Fanning specialises in property, agri-business, farming, trusts and commercial property. Debra Dorrington Debra Dorrington has been a member of the PLS Executive since 2009, is a Property Council member and a long-standing member of the Property Council’s events committee. She has been a regular presenter for NZLS CLE, including co-presenting the annual Residential Property Transactions workshops. Ms Dorrington is also currently one of two PLS representatives on LINZ’s joint Conveyancing 2020 working group. She is a partner of Auckland firm AlexanderDorrington, which she established with Craig Alexander in 1999. Her particular areas of interest are property developments and commercial lease work. Russell Mawhinney Russell Mawhinney, who was elected to the PLS Executive in 2010, is also currently a District Councillor for the Queenstown Lakes District Council. He is a member of the PLS Promotions Subcommittee,
SECTIONS PROFILES and has been instrumental in developing the section’s marketing and communications strategy. A partner of Preston Russell Law in Queenstown, Mr Mawhinney practises property and commercial law, and has particular experience in property investment, structuring, unit title matters and subdivisions, small businesses, and servicing international investors. He has experience outside the law also, having spent several years in sports administration and marketing both in New Zealand and Hong Kong. David Roughan Elected to the PLS Executive in 2010, David Roughan is also the executive liaison for the PLS Rural Transactions Technical Committee. Principal of Northlaw in Whangarei, he has practised in Wellington, Wanganui, Hamilton and Whangarei as a district solicitor for the Public Trust, a partner in Connell Lamb Gerard & Co for a decade, a locum and as a sole practitioner for two decades. Mr Roughan’s involvement with the Council of ADLS Inc and the ADLS Inc Documents and Precedents and Property Disputes Committees provide a useful conduit for the Executive to keep abreast of opportunities for assisting property lawyers with the services ADLS Inc provides. Todd Whitcombe Todd Whitcombe has been an elected member of the PLS Executive since 2006, during which time he has served as the executive liaison for the section’s Land Titles, and Trusts and Wills Committees. Mr Whitcombe is also a
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Garry Collin – chair Christchurch barrister Garry Collin, who has been on the Family Law Section executive for five years, is the section’s new chair. Mr Collin now practises exclusively in family law, and has done since 2005, the same year he completed a post graduate diploma in child advocacy. In
member of the NZLS Trust Law Review Working Group (jointly formed by the Family and Property Law Sections). He has been actively involved in e-dealing, power of attorney and PPPR issues on behalf of the section, and also contributed to the Land Transfer Act Review Working Group. A partner of O’Neill Devereux in Dunedin, Mr Whitcombe practises predominantly in property transactions, trusts and estates. He also provides commercial law advice. Lindsay Lloyd Lindsay Lloyd was appointed the founding chair of the PLS in 2000. He held that position for four years before stepping down. He continued as an elected member and, since 2010 as a coopted member of the Executive. Mr Lloyd is also a member of the Law Society’s Ethics Committee. A partner of MDS Law in Christchurch, Mr Lloyd advises on all aspects of property law including subdivision and land development, ownership structures and financing. He has provided invaluable leadership, media commentary and advice for the benefit of all property lawyers as part of the Law Society response to the Christchurch earthquakes.
includes conveyancing, subdivisions, trusts and company work. Mr Terris has had extensive involvement with the development and refinement of e-dealing over the past 10 years and has been the Law Society’s e-dealing consultant since 2004. Kate Healy Elected to the PLS Executive this year, Kate Healy is partner in the real estate division at Minter Ellison Rudd Watts. She has a broad commercial property practice advising clients on all aspects of property acquisition/disposition and ownership. Ms Healy has more than 10 years’ public and private sector experience in real estate-related law, with particular expertise in structuring property and financing arrangements and receiverships. Her expertise extends across a range of industries including hospitality, financial services, infrastructure, rural and farming activities, retirement villages and government. Ian Haynes – President’s nominee
Duncan Terris, of Mobile Conveyancing Services, Christchurch, was co-opted onto the PLS Executive in 2007 and elected in 2011. He has been a member of the Land Titles Committee for more than 10 years, is a member of the PLS Land Transfer Review Working Group and is a regular course presenter for NZLS CLE. Mr Terris is a sole practitioner with a primary focus on property. This
Ian Haynes is a past President of the New Zealand Law Society and a former President of the Auckland District Law Society. As a consultant with Kensington Swan, he specialises in commercial property and commercial matters including developments and joint ventures. He has extensive experience in the building, construction and local body sectors. He is frequently engaged as an arbitrator or expert witness in property related litigation matters. Mr Haynes is the architect of the model for the governance of the legal profession on which the Lawyers and Conveyancers Act is based.
earlier years, however, Mr Collin also practised criminal and employment law.
at the Family Law Symposium on the review of the Family Courts, held at Parliament on 3 June last year.
After graduating from Canterbury University in 1983, Mr Collin began as a law clerk at Parry Field. In 1990, he became a partner of the firm. In 1987, he established a branch office for Parry Field called Linwood Law, buying this practice in 2000 and practising in partnership there until he joined the bar in 2007.
He is on the Hague Convention Panel, the PPPR Panel and the Lawyer for the Child Panel. He chaired the Family Law Committee of the Canterbury District Law Society and was the Christchurch regional representative for the FLS for a number of years. He has also presented for the Law Society at the travelling road show on the Early Intervention Programme.
Mr Collin has been involved in three significant ways in the current review of the Family Courts. He was on the Ministry of Justice’s reference committee for the review. He also wrote a paper for and was a presenter
When Richmond Primary School won the Goodman Fielder School of the Year award, Mr Collin chaired the school’s board of trustees, a role he held for two of the 12 years he was a
LAWTALK 796 / 25 MAY 2012
SECTIONS PROFILES board member. He was a member of the Shirley Boys’ High School board for around eight years. He has also been involved with a number of trusts, including the Shirley Community Trust. A keen mountaineer, Mr Collin has climbed many major mountains in New Zealand, as well as climbing in the Himalayas and South America. He also enjoys whitebaiting and was most recently the race director of the North Island section of cycling’s Tour of New Zealand. Mr Collin is married to Anney, principal of Cholmondeley School, and they have four children, aged 24, 21, 20 and 16. Catriona Doyle – deputy chair Catriona Doyle is a director of Family Law Specialists Ltd, Porirua which was formed in 2010 when the partnership of Catriona Doyle and Rohan Cochrane incorporated. She is one of six practitioners (three directors and three associates) all of whom specialise in all areas of family law work for a wide range of clients from Wellington to Levin. Admitted in 1993, Ms Doyle undertakes a range of appointments as Lawyer/Counsel for the child, Counsel for the subject person and as Counsel to assist the court. She also undertakes relationship property, trusts, wills and estate work and Hague Convention matters on appointment from the central authority. Tim Black – treasurer Tim Black is a partner in the Dunedin office of Anderson Lloyd, having joined the firm in 2005 as a partner. Before that, he practised from 1991 at the Balclutha firm of O’Malley and Black, becoming a partner in 1994. Mr Black undertook Youth Advocate appointments between 1993 and 2005 and has been Counsel for Child and Counsel to assist since 1993. Since moving to Anderson Lloyd, Mr Black has focused his family law practice on relationship property and succession issues, although he continues to work as Lawyer for Child/Lawyer to assist. Allan Cooke Allan Cooke is a barrister who has practised as a family lawyer for around 30 years. He represents both parents and caregivers of children and is on the list of those appointed to represent children in Family Court
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proceedings. He is also on the list of those who receive appointments as lawyer to assist the court to conduct mediations. He receives appointments under both the Protection of Personal and Property Rights Act and the Intellectual Disability (Compulsory Care and Rehabilitation) Act. Mr Cooke has a specific interest in CYPF cases and, within that, in issues related to the permanent placement of children who are in care, including support of those children and those who look after them. Murray Earl Murray Earl was instrumental in the formation of the Family Law Section in 1997. He has been a member since its inception through to 2002 and remains on the executive as an exofficio member. Mr Earl is the Editor of The Family Advocate. A Hamilton barrister, Mr Earl focuses on custody and relationship property cases. He chaired the Family Law Conference in 2007 and was awarded a Queen’s Service Order in the New Year’s Honours in 2008 for his services to family law and the community. Mr Earl works with Tracey Gunn to organise Lawyer for Child forums in both Hamilton and Auckland. Tracey Gunn Tracey Gunn has practised family law in and about the Hamilton/ Waikato region for the last 20 years. A barrister, she has a particular interest in Lawyer for the Child and Counsel to Assist assignments. Ms Gunn has chaired the Waikato Bay of Plenty District Family Law Committee for over 10 years. She was the section’s regional representative for Hamilton for many years until joining the executive in April 2008. Ms Gunn has also promoted continuing education. Her interest in education began with organising Lawyer for the Child seminars in Hamilton, Auckland and Whangarei with Murray Earl. Antony Mahon Auckland barrister Antony Mahon has chaired the Family Law Section for the last two years. He has specialised in all aspects of family law for over 25 years and is a former chair of the Auckland Family Courts Association. Mr Mahon co-presented the NZLS CLE seminar on Child Development in 2004. Mr Mahon is on the Faculty for the NZLS CLE Lawyer for Child training and has
co-presented that training since 2007. He chaired the Advanced Lawyer for Child seminar in 2008. Mr Mahon has been a member of the Family Law Section Executive since 2007. Miriam Menzies Newly elected to the section’s executive, Miriam Menzies worked in general practice in the Hutt Valley after graduating in 1988. Since 2002, she has been practising on her own account. While Ms Menzies undertakes predominantly family work, she also handles property, estates, wills, trusts and other court work. She is Lawyer for the Child, Counsel to Assist, Counsel for the Subject Person under the PPPR Act and a Youth Advocate. From time to time, she has acted as Guardian ad Litem. She is on the Law Society’s Wellington branch Family Law Committee and the Ethics Committee, and on the Central Regional Selection Committee for Legal Aid. Sharyn Otene Sharyn Otene, who is also newly elected to the executive, has worked in Auckland, predominantly South Auckland, since starting practice in 1996. Her first position was as a solicitor with King Alofivae Malosi. From 2001 until 2010 she was in partnership with Hana Ellis. In 2010 Ms Otene and colleagues established Quadrant Chambers in Manukau, where the members all have a strong focus on family law. She works predominantly on CYPTF, COCA and PPPR proceedings. She was appointed to the Lawyer for the Child panel in 2001 and acts as Lawyer for Child and as Counsel to Assist the Court. Ms Otene is a past member of the section’s Māori Issues Standing Committee.
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Grant Adam – President Grant Adam was elected the new CLANZ President at the section’s annual meeting on 11 May. After completing his LLB at Otago
SECTIONS PROFILES University, Mr Adam travelled and worked through Africa, Europe, the UK, and Australia for three years before starting work with Trade and Industry as a policy analyst. He was seconded to the Commerce Commission as an investigator, and then into international trade policy with responsibility for managing New Zealand’s interests in 11 negotiating groups in the GATT Uruguay Round world trade negotiations. After policy and investigation work, he joined the Ministry of Commerce as a solicitor and was involved in a wide range of law reform and advisory work. After moving to the Ministry of Health, he designed the legal aspects of changing Crown health enterprises to Hospital and health services and merging the then four Regional health authorities into the Health Funding Authority. Later, he was tasked with redesigning that system by shaping and taking through Parliament the NZ Public Health and Disability Act, which gave us our current system of DHBs. After acting in the role for some time, Mr Adam became the Chief Legal Advisor at the Ministry of Health. During that time, he was tasked with setting up the Gisborne cervical screening inquiry. He oversaw the ministry’s defence of the allegations against it, and later designed the terms of settlement of the class action. He also designed the settlement of the second round Lake Alice claimants and the settlement of the Hepatitis C (“bad blood”) class action. Mr Adam then followed his Chief Executive to the New Zealand Qualifications Authority, where he is today. Mr Adam has presented papers at a number of conferences, with a paper, Assisted human reproduction – legal rights of the unborn in respect of avoidable damage presented at the World Congress on Medical Law in Toulouse and published in the international journal Medicine and Law. Mr Adam has two daughters from his previous marriage and lives with his partner Julianne. He enjoys running, plays indoor netball, loves body-surfing, enjoys mountain-biking
(despite a few injuries), and gets right into hiking, cooking and home maintenance. Charles Spillane – Vice-President, Auckland The winner of the 2011 CLANZLexisNexis In-House Lawyer of the Year award, Charles Spillane is General Manager Corporate Affairs at Auckland International Airport. He is the senior legal adviser and corporate secretary to the airport and is also responsible for corporate communications, governance, government relations, share registry, risk management, and insurance. Before joining the airport in 2002, Mr Spillane practised at Russell McVeagh. He is a Fellow of the Institute of Chartered Secretaries. Outside his profession, Mr Spillane is an avid surfer, although advancing years have resulted in him turning to stand-up paddle boarding. He is married to Jenny and they have two daughters, Eleanor and Natalie. David Dunbar – Vice-President, Wellington David Dunbar is currently the Registrar at the Medical Council of New Zealand. After 12 years as a senior parliamentary officer, he worked in local government regulatory roles, before finding what he describes as “an ideal mix”, of health, legal and regulatory roles. This included five years at the Ministry of Health and, most recently, two years as Registrar for the Dental Council. Mr Dunbar hails from the South Island and moved to Wellington long before it became the “coolest little capital in the world”. Like many, he’s since discovered its pleasures: enjoying stimulating work fueled by primo coffee, quirky bookshops and theatres and some challenging sailing, road cycling and mini golf. Christopher Guy – secretary Christopher Guy is secretary of the CLANZ Committee for 2012. He was conference programme director for the 25th CLANZ Conference this year in Queenstown and conference director for the 2011 CLANZ Conference in Napier. Mr Guy has worked as an in-house counsel for Housing New Zealand Corporation in Wellington for the last nine years. Before that, he was
in private practice in Wellington and London. Outside of work, he follows his children’s sporting and cultural activities and chairs the Board of Trustees of their school. Julian Daly – treasurer Julian Daly is the CLANZ treasurer and Christchurch representative. Mr Daly is general counsel and company secretary at NZX-listed PGG Wrightson. He is part of the leadership team at PGG Wrightson and is responsible for the legal and governance affairs of the company and also has hands-on involvement in the operations and management of several business units. Before this role, Mr Daly was in private practice in the Middle East and was formerly general counsel for DB Breweries. Sarah Gillies – conference director Sarah Gillies, who has been on the CLANZ committee since 2011, is the conference director for the 2013 CLANZ conference. Ms Gillies has been an in-house lawyer at Telecom since 2005. Initially, she was a member of Telecom’s regulatory and competition law team, before moving into a commercial legal role supporting Gen-i, the division of Telecom that provides IT and telecommunications services to corporate and government clients across New Zealand and Australia. Before becoming an inhouse lawyer, Sarah was in private practice in the dispute resolution team at Minter Ellison Rudd Watts. Ian Hasell – communications director Ian Hasell started his legal career as prospectus manager for a small start-up property syndicator in 1997. This syndicator grew over the years to become the listed property company DNZ Property Fund. Mr Hasell’s role with DNZ grew over the years including a number of company directorships and finally a role as general manager corporate services and company secretary. Mr Hasell joined the new legal team at Mitre 10 in April 2011 as associate general counsel. Mr Hasell enjoys mountain biking, skiing and indoor rock climbing though these take second place to playing with his three- and seven-year-old. LT
LAWTALK 796 / 25 MAY 2012
CONTINUING YOUR PROFESSIONAL DE VELOPMENT
Mediation masterclass very successful The partnership between the New Zealand Law Society and Massey University offering mediation training for lawyers has moved to the next phase. Professor Laurence Boulle of Bond University, Australia, an acknowledged expert mediator and teacher with an international reputation, recently completed two masterclasses as part of the 2012 NZLS CLE programme. The joint venture builds on and extends the two existing joint venture workshops: Undertaking Mediation and Mediation for Family Lawyers. Professor Boulle is well known in New Zealand mediation circles and recently returned to Australia after two years as the Issy Wolfson Professor of Law at the University of the Witwatersrand in Johannesburg, where he was also the Director of the Mandela Institute. He also co-authored the book Mediation Skills and Techniques (LexisNexis 2012). His masterclass involved teaching and reflecting on, as well as practising, the skills of handling emotion, dealing with impasse, addressing power imbalances and the vital skill of reframing. Professor Boulle also drew on other professional
disciplines to show how learning from them can enhance the skills of the mediator and extend the horizons of the reflective practitioner. Participants in the two masterclasses Laurence Boulle included some of delivering a masterclass in mediation. New Zealand’s senior lawyer mediators and the most experienced practitioners in the room provided a valuable resource in the stimulating environment of the workshop. Learning and teaching went hand in hand, as did theory and application. Virginia Goldblatt, the academic responsible for Massey University’s role in the partnership with NZLS CLE, is also one of Laurence Boulle’s co-authors (with Wellington barrister Phillip Green) of the companion book on mediation in New Zealand, Mediation: Principles. Process, Practice. She describes Professor Boulle’s visit as making an important contribution to the international profile of the profession
of mediation and reinforcing the strong commitment of both the Law Society and the university to the development and delivery of mediation education for lawyers and its role in dispute resolution in New Zealand. The Law Society’s President, Jonathan Temm, hosted a small reception for Professor Boulle when he was in Wellington and this gave a chance for people who have been significant in the Massey-Law Society partnership to meet him. The masterclasses filled quickly, well before the closing date, and there are plans to bring Laurence Boulle back to New Zealand to give others the chance to attend a further session of the masterclass. Professor Boulle’s masterclass is just part of the high quality mediation training NZLS CLE Ltd provides. CLE also has its “part A” mediation training, that covers the significantly different skills required to be able to offer mediation services. This lays the foundation for CLE’s specialist “part B” mediation training, which is both more advanced and tailored to specific practice areas. LT
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LAWTALK 796 / 25 MAY 2012
FROM THE COURTS Battered men can also receive sentence discount A sentence discount is available to males who have suffered to the same extent as females who have “battered women’s syndrome”, the Court of Appeal has said. The ruling came when Toa Tuau successfully appealed his sentence for wounding his father with intent to cause grievous bodily harm (Tuau v R  NZCA 146). On 21 October 2010, Mr Tuau punched his father in the head, “perhaps 15 times,” the judgment, given by Justice Keane on 17 April, said. Once his father was unconscious, Mr Tuau collected a boning knife from the kitchen and stabbed his father in the left eye. Following surgery for a fracture to his left eye socket and an injury to the eye itself, his father has since made a complete recovery, though he still suffers a degree of double vision. “In R v Whiu ( NZCA 591) and in other cases, this court has accepted that women for sentence for violent offending, who have suffered violence at the hands of their victim, or others, and suffer from ‘battered women’s syndrome’ may be entitled to discounts in the vicinity of 25%,” the Tuau v R judgment said. “There is no reason in principle why a man who has suffered to the same extent should be denied such a discount.” The court quoted a report for the purpose of sentence by clinical psychologist Ms Raethel. “[She] summarises the extent of research into the effects of severe child abuse on the ongoing lives of children, both as children and adults: ‘When children experience severe and prolonged physical abuse from a young age they are likely to be living in a climate of tension and ongoing helplessness. The actions of their abusers are likely to be random and unpredictable. They frequently do not know what actions on their part will precede violence and they become hypervigilant and chronically fearful. They are usually unable to defend themselves against the abuser.
Retaliation or resistance is likely to lead to further and more severe violence toward them.’ “Ms Raethel continues to say: ‘Survivors of physical abuse appear to show more autonomic arousal; eg, tension, jumpiness, flinching and intrusive thoughts of being violent or of suddenly being injured’.
When children experience severe and prolonged physical abuse from a young age they are likely to be living in a climate of tension and ongoing helplessness.
Ms Raethel “She concludes her report with this statement from a 1992 text (J Briere, Child Abuse Trauma: Theory and Treatment of the Lasting Effects, Sage Publications, Newbury Park California, 1992): ‘Reactions in physical abuse survivors are often triggered by the survivor’s own angry or rageful feelings, overt conflict with others, violent events, or being in the presence of someone who is physically frightening’. “In her report, Ms Raethel makes no distinction between men and women who have suffered such abuse as children. “Nor can there be. Rather, what seems to us essential when any such claim is made, as this court said in Whiu, is that there be an ‘evidential basis’ for concluding beyond a mere likelihood that there has indeed been ‘prolonged abuse’ and that it ‘materially contributed’ to the offending for sentence,” the judgment said. “Highly pertinent to this issue on
sentence, we consider, were the materials the judge had relating to Mr Tuau’s father’s 1998 conviction for assaults on his younger brothers and sisters, 11 such offences, six with a weapon, and a number representative in character. That he was sentenced to imprisonment for two years is a measure of their seriousness. “Mr Tuau’s father, as it appears from the statement of facts on sentence, did not deny having assaulted his then 14-yearold daughter, once by using a stick, hitting her everywhere, including her head; and, during her primary school years, especially when he had been drinking, slapping and kicking her to a number of parts of her body. “Mr Tuau’s father admitted as well to assaulting his then 11-year-old son from the age of five, perhaps once a week; to dragging his son across the floor and banging his head into a wall; to punching him with a closed fist to his head and body; to slapping him across the lips; to hitting his head with a wooden bread board; to hitting all parts of his body with a metal pipe; and to lifting him off his feet by the throat, choking him. He admitted to further serious assaults on his still younger children, aged eight, seven and four. “This sustained pattern of violence to which Mr Tuau’s father admitted has to supply an objective basis for Mr Tuau’s claim to have been assaulted in just those ways by his father. “That pattern explains how he decided he had no alternative but to attack his father to avoid being attacked; and no alternative but to render his father unconscious and stab him out of fear that, unless he went that distance, his father would retaliate with even greater force,” the court said. Mr Tuau’s sentence of five years, six months was quashed, and he was sentenced to imprisonment for four years, six months. The decision is on the NZLII website, www.nzlii.org/cgi-bin/sinodisp/ nz/cases/NZCA/2012/. LT
LAWTALK 796 / 25 MAY 2012
THE BOOKSHELF WILLIAMS & KAWHARU ON ARBITRATION
confine one’s attention to the Act and its interpretation would be to ignore much of the law on arbitration.
By David Williams QC and Amokura Kawharu with contributing authors Daniel Kalderimis, Anna Kirk, and
If one had to choose the single most significant feature of W&K, it would be the way in which it places New Zealand arbitration in its wider international context. There are constant references to overseas jurisprudence, experience, and commentary. New Zealanders are fortunate to have the benefit of the unique international experience of the authors. Our local arbitration law will be the better for it.
Campbell Walker Reviewed by Robert Fisher QC* Williams and Kawharu (“W&K”) is a major arrival on the local arbitration scene. Its 1245 pages make it easily the most comprehensive hardcopy text on the subject in New Zealand. At 393 pages Anthony Willy’s Arbitration (Thomson Reuters 2010) is necessarily more concise. Green & Hunt on Arbitration Law & Practice is available in electronic form only. W&K is divided into four parts – I: Introduction; II: The Arbitration Act 1996 (NZ) and its Amendments; III: International Commercial Arbitration; and IV: Investment Treaty Arbitration. The appendices include the Act itself, relevant High Court Rules, a multitude of international source materials and three useful precedents. Part I, the Introduction, is a scholarly survey of arbitration history and concepts. Parts III and IV, International Commercial Arbitration and Investment Treaty Arbitration, are self-explanatory. The heart of the book is Part II. Part II will be the one resorted to by the average New Zealand practitioner. The title to Part II, “The Arbitration Act 1996 (NZ) and its Amendments”, is misleading and over-modest. Recognising that the Act is not an exhaustive code (W&K p 36), Part II ranges well beyond the Act in order to cover the topic of domestic arbitration in New Zealand as a whole. Take the first chapter in the Part, Arbitration Agreements. Although the chapter includes passing reference to the formal statutory requirements for an agreement, it is nothing less than a comprehensive survey of concepts and decisions relating to arbitration agreements in general. The authors have appropriately recognised that to
LAWTALK 796 / 25 MAY 2012
For the most part the international perspective has been successfully melded with existing New Zealand law and practice. In isolated cases one suspects that the authors’ enthusiasm for overseas sources has distracted them from law and practice already established here. For example, the authors’ assumption that arbitrators have no power to stay proceedings (W&K p 442) is based on an English Departmental Advisory Committee Report. New Zealand authority (Carter Holt Harvey Ltd v Genesis Power Ltd  3 NZLR 794  to  and McConnell Dowell Construction Ltd v Pipe Flow Technology Ltd (High Court, Auckland, M2029/98, 25 March 1999 at p 9) is to the contrary. Then again the assertion that there is a “developing trend in domestic commercial arbitration to award a successful party the whole of its costs” (W&K p 455) appears to be based primarily on English and Dutch sources. In the absence of arbitration statistics in New Zealand one should not try to be dogmatic about local practice. However the very different costs philosophy that has always prevailed in New Zealand, analysis of our own legislation, most of the reported decisions recording the level of costs that have been awarded in arbitrations, and inquiries of other arbitrators, all tend to suggest that New Zealand has its own approach. Most arbitrators do appear to award a reasonable contribution towards actual costs rather than an indemnity. Of course that may change one day, not least because W&K’s remarks could prove to be a selffulfilling prophecy.
None of this must be allowed to detract from the authors’ achievement. W&K has undoubtedly taken its place as a key resource for anyone dealing with arbitration in this country. It will also provide the reader with a useful springboard into international commercial and investment treaty arbitration. Its two great contributions are its comprehensiveness and its internationalism. In a small country we need more books like this. WILLIAMS & KAWHARU ON ARBITRATION by David Williams QC and Amokura Kawharu, LexisNexis, December 2011, 9781-927183-08-3, 1245 pages, $184 (GST incl, p&h excl). Available in paperback. *Hon Robert Fisher QC is an Auckland arbitrator and mediator. Williams & Kawharu on Arbitration takes JF Northey Prize Williams and Kawharu on Arbitration by David Williams QC and Amokura Kawharu and published by LexisNexis has won the JF Northey Memorial Book Award 2011. The $2,000 prize was awarded by the Legal Research Foundation for the best legal monograph or text by a New Zealand author published between 1 January and 31 December 2011. The prize has been awarded annually since 1982. David Williams QC is an Auckland Queen’s Counsel and Honorary Professor of Law at Auckland University. Amokura Kawharu is a senior lecturer in law at Auckland University. As well as the principal authors, the book also included contributions by Daniel Kalderimis, Anna Kirk and Campbell Walker. The award was announced at the Legal Research Foundation’s Annual General Meeting in Auckland on 8 May. For the first year, the foundation released a short list of contenders before the award was announced. The other book finalists were Claudia Geiringer,
David Williams QC (left) and Amokura Kawharu receiving the JF Northey Memorial Book Award from Justice Raynor Asher, President of the Legal Research Foundation.
Polly Higbee and Elizabeth McLeay (What’s the Hurry? Urgency in the New Zealand Legislative Process, Victoria University Press), Mark Hickford (Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire, Oxford University Press) and David V Williams (A Simple Nullity? The Wi Parata Case in New Zealand Law and History, Auckland University Press). As well as the book award, the foundation also makes three other awards. All of these were announced at the AGM. The Sir Ian Barker Published Article Award was won by Hanna Wilberg for “In defence of the omissions rule in public authority negligence claims”, Torts Law Journal 2011. The Unpublished Post-Graduate Paper Award was won by David Griffiths for “Section 15 NZBORA: The Case for Transplanting US Religion Clause Doctrine”. The Unpublished Student Paper Award was won by Samuel Wevers for “Recognising Rangatiratanga: Sharing Power with Māori Through CoManagement”. Colorado takes digital legal information lead Colorado has enacted the Uniform Electronic Legal Material Act, making
it the first state in the United States to do so. The Act establishes an outcomesbased, technology-neutral framework for providing online legal material with the same level of trustworthiness traditionally provided by publication in a law book. The Act requires that official electronic legal material be: (1) authenticated, by providing a method to determine that it is unaltered; (2) preserved, either in electronic or print form; and (3) accessible, for use by the public on a permanent basis. New Zealand is well down this track with legislation, with our Legislation Online website. New app aggregates free material for in-house counsel Thomson Reuters in the United States has announced the launch of a new free app for the Apple iPad which it says aggregates news, research and online CLE information for general counsel. The “GC Advisor” app is 2.8 MB and is said to include “thought-leadership articles” from noted authors, industry intelligence, and fresh angles on topics gathered for corporate lawyers. Tablets used more on the move than for e-books Thomson Reuters’ New Zealand office has released the results of an online
survey of 543 “professionals” and their use of tablet devices. Over 27% said they already owned a tablet and about half of those without intended to purchase one within the next year. Baby boomers appeared to be the early adopters, making up 45% of the tablet owners. As far as usage goes, 79% said they used tablets to work on the move, 17% used them for reading e-books, and 8% had one as a status symbol. Beyond the title The conventions of naming law books appear to require a title which describes the contents as neutrally as possible. While the title of the winner of the latest JF Northey Award follows the rule, the other three finalists all appear to break the stereotype somewhat. In the interests of providing a benchmark for the future, the following three genuine titles of past law books are provided: Taking Life Imprisonment Seriously in National and International law by Dirk van Zyl Smit (Kluwer Law International), Cannibalism and the Common Law by AW Brian Simpson (Chicago University Press), and the looseleaf service Butterworths Corporate Manslaughter Service by Gerard Forlin (now apparently renamed after winning a prize for the most oddly named book of the year). LT
LAWTALK 796 / 25 MAY 2012
Linda Clark of Chapman Tripp with Cameron Magdwick
New Community Law website bulging with resources By Hannah Grant A new national face of community law in New Zealand has been unveiled. The Community Law website (www. communitylaw.org.nz) now fronts cyberspace for the 26 Community Law Centres across New Zealand. At its launch, Wellington Community Law Centre (WCLC) chair Cameron Madgwick said the website was a valuable resource which demonstrated community law centres were a collaborative body working together for common objectives. Chapman Tripp’s Linda Clark officially launched the website by acknowledging all the people – motivated by social justice and access to justice – who came together for the project. Ms Clark, who grew up with a solo mother in a state house in Christchurch, drew on her own life experience to illustrate the importance of community and pro bono legal services for families struggling financially. At periods in her life when her family needed a lawyer, the provision of legal
LAWTALK 796 / 25 MAY 2012
services free of charge were appreciated and necessary for justice to be obtained. “These types of events change the way we think about things, especially in terms of understanding and access to justice,” she said. Along with expected information such as the locations and functions of community law centres, the website contains a law library which has three main levels which have many different kete (baskets). These kete are full of useful resources produced by Community Law. Kete on the “KNOW” level contain legal information and answers to legal questions; Kete on the “TEACH” level contain teaching resources. People can use these resources, such as facilitator guides, PowerPoint presentations and games to teach themselves the law, or to teach others; Kete on the “CHANGE” level contain resources produced by Community Law about areas of the law it wants to change. Users can search to see what law centres around the country are saying about a particular bill or issue.
WCLC Community Education Worker, Alex Keeble, said that through education projects with different groups in the community they were able to understand the issues facing the community. “From these projects we were able to develop quick and useful tools to place in the community law library, which is a massive pātaka (storage space) filled with bundles, or kete, of high quality resources”. Ms Keeble illustrated this with a clever 3-D display of real kete filled with objects to help people understand legal issues and their rights. One kete had a phone, handcuffs, and a pamphlet to highlight one of the resources on the website that educates people on their rights when arrested, namely the right to make a phone call straight away to a PDLA (Police Detention Legal Assistance scheme) lawyer from the police person’s phone. “We have always been great at creating these resources but our new website means we can get better at sharing them. It wasn’t created in a vacuum”. LT
My Client Made Me Do It By Duncan Webb* A lawyer’s function is to help his or her client achieve their objectives. It is fundamental to this that the lawyer follow the client’s instructions. The duty to act as a principal directs is a basic principle of the law of agency – and it should always be remembered that lawyers are agents of their clients. The Rules of Conduct and Client Care don’t explicitly articulate the duty to follow instructions. This may be due to the fact that the duty to follow instructions is so obvious. The rules do mention the duty to act in accordance with the terms of retainer (rule 3) and to discuss what steps will be taken to implement instructions (rule 7.1). Special mention is also made of the need to obtain informed instructions (and to follow them) in respect of criminal matters (rule 13.3). However nowhere in the rules is the most fundamental principle that a primary duty of the lawyer is to do what his or her client wants clearly articulated. There can, however, be little doubt that such a duty exists as a professional obligation, and even less doubt that it exists as a legal duty attaching to the relationship of lawyer and client. The principle is stated by Justice Eichalbaum in Apatu v Peach Prescott & Jamieson  1 NZLR 50 at 64 when he stated: “So far as a solicitor is concerned there can be little doubt that if in the course of his retainer he does an act directly contrary to instructions causing loss to the client, he will be liable: Butler v Knight (1867) LR 2 Exch 109, 112.” That statement taken alone, however, paints with too broad a brush. It was noted in the same breath in Aputu that a contract of agency is subject to an implied term that the agent will obey all lawful and reasonable instructions of his principal in relation to the manner in which the agent is to carry out his duties. Our intuition tells us that there are some things that a client can’t instruct his or her lawyer to do. One of the main themes of the Rules of Conduct and Client Care is delineating what a lawyer ought not to do, notwithstanding the instructions
of the client. Those prohibitions range from not committing blackmail (rule 2.7) to not contacting another lawyer’s client directly (rule 10.2). It is obvious that a lawyer may not assist in a crime or fraud (rule 11.4) and while a lawyer may use all legal skill to get a criminal defendant “off”, this cannot extend to hiding physical evidence (R v Murray (2000) 144 CCC (3d) 289), or threatening opposing witnesses (R v Taffs  1 NZLR 69).
Our intuition tells us that there are some things that a client can’t instruct his or her lawyer to do. This duty to do what the client says also pops up in statute. Probably the starkest example can be found in s110 of the Lawyers and Conveyancers Act 2006 and provides that “a practitioner who, in the course of his or her practice, receives money for, or on behalf of, any person … must hold the money, or ensure that the money is held, exclusively for that person, to be paid to that person or as that person directs”. In Fletcher v Eden Refugee Trust  NZCA 124, Mr Fletcher had acted for the trust. The trust was for a religious purpose (and therefore charitable). Unfortunately the church was riven with dissention and ultimately Mr Hohepa became the last remaining trustee and held significant assets (real estate) for the trust. Mr Hohepa elected to sell the property owned by the trust, which of itself was unobjectionable. However, from that position he embarked on a course of conduct which stripped the trust of a large part of its assets for his personal benefit. He did this from Spain where he gave various instructions to Mr Fletcher to remit trust funds to him to fund his travels and various ventures. On no analysis could these arrangements be seen as within the purposes of the trust and the court found that any honest person
would have known that Mr Hohepa was in breach of his obligations as a trustee, wrongfully depriving the trust of its funds for his personal benefit. Mr Fletcher was successfully sued in the High Court for “dishonestly assisting” in the breach of trust. On appeal he pressed an argument that he was obliged to follow his client’s instructions and pay the funds to Mr Hohepa as and when requested. The duty in s110 (or s89 of the Law Practitioners Act 1982 as it was at the time) was, he argued, absolute. Justice White, for the court, gave this argument the treatment it deserved. His honour reviewed a number of Australian authorities and reached the obvious conclusion that the section, while strict, was not absolute. It does not compel or allow the solicitor to become party to a criminal offence (para ), nor does it justify the lawyer becoming a recipient of property obtained in breach of trust or dishonestly assisting in such a breach (para ) Arguably there was a shorter route to the same conclusion. As trustee, Mr Hohepa was empowered to deal with the trust property only in accordance with the trust deed (of which Mr Fletcher had a copy). Any instructions which were in clear breach of the terms of the trust were outside of the authority of Mr Hohepa. Where a client is themselves an agent of another entity (such as a grantor of a power of attorney, company or trust) the lawyer must always hold in mind who the client is. Where the instructions clearly fall outside of the authority that the attorney/director/trustee has (whether actual, implied or ostensible) then they are not the instructions of the client. The client will not be bound by those instructions and the lawyer follows them at his or her peril. *Duncan Webb is internationally recognised as New Zealand’s leading expert in professional responsibility and liability. In fact, he wrote the book that is the key text in this area: Ethics, Professional Responsibility and the Lawyer, now in its second edition. A former law professor at Canterbury University and Legal Complaints Review Officer, Mr Webb is now a partner of Lane Neave in Christchurch.
LAWTALK 796 / 25 MAY 2012
Lawyers’ role in reducing Maori incarceration By Rachael Breckon Lawyers have been called on to investigate the use of existing legal mechanisms to help reduce the Māori prison population. This request came at the official launch of Wellington-based advocacy group JustSpeak (profiled in LawTalk 792). At the 1 May launch, the group released a position paper: Māori and the Criminal Justice System: A Youth Perspective. The well-attended launch at Te Puni Kokiri attracted judges, politicians and young leaders working with people in the criminal justice system. JustSpeak steering group members Sarah Kuper and Tai Ahu introduced the paper, which is available online at www.rethinking.org.nz/Default. aspx?page=3565. The issues paper makes 12 key proposals. They include implementation of the recommendations in Moana Jackson’s 1988 report He Whaipaanga Hou, the first report to look at the criminal justice system from a Māori worldview, as “many
facets of his analysis have been ignored”. Attention needs to be paid to the interconnectedness of problems resulting in high levels of Māori incarceration. The group of 16- to 25-year-olds would also like to see Māori who have been in the criminal justice system empowered to talk about their general and cultural experiences. Along with the issues paper release, Dr Pita Sharples, Sir Eddie Durie, Moana Jackson and Justice Joe Williams spoke to attendees on Māori in prison and paid homage to JustSpeak.
youngest legal minds are putting their hands up to do the work. Like us, they see that the problems are real, so the solutions must be real.” Sir Eddie outlined some of the observations he has made over the years about Māori in the justice system. This included the emphasis on remorse in sentencing. He believes remorse is a “European Christian” concept and does not sit with Māori ideals of mana.
Justice Joe Williams accredited the multicultural group as being the “face of the new generation of Aotearoa”.
Mr Jackson outlined some of the findings he has made in a revisit to his 1988 report which will be released in September this year. He also listed three things he would like to see occur in the criminal justice sphere.
Dr Sharples acknowledged that many JustSpeak members were probably not even born when He Whaipaanga Hou was released 24 years ago.
The first is the de-politicisation of crime and punishment and law and order, so they are no longer seen as a way to catch votes.
“We have come a long way since then – but as JustSpeak’s report states: we have not come far enough.
The second is to have new and more reasoned debate on Māori justice system values and ethics and thirdly, which he admits is the “most unrealistic of all”, is to see the abolition of prisons. LT
“There is a lot of work to be done but it is reassuring to see that some of our
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C H R I S T C H U R C H
LAWTALK 796 / 25 MAY 2012
N E L S O N
W E L L I N G T O N
A U C K L A N D
S Y D N E Y
Alcohol interlocks – the next step This article was supplied by the NZ Transport Agency to acquaint lawyers with the new provisions relating to alcohol interlocks.
On 9 May 2011, Royal assent was given to the Land Transport (Road Safety and Other Matters) Amendment Act 2011. The amendment provides two new sentencing options for dealing with repeat drink-driving offenders and some first time offenders. From 1 July 2012, courts will be able to order the use of alcohol interlocks and/ or a Zero Alcohol Licence (see ss65A and 65B of the Land Transport Act 1998). Current penalties for drink-driving will remain and sentences will be handed down on a case-by-case basis. An alcohol interlock is a device similar to a breathalyser that is connected to a vehicle’s starting system. Before the vehicle can be started, the driver must conduct a breath test. If the result is over the pre-programmed breath-alcohol level, the vehicle will not start. For those participating in the alcohol interlock programme, this pre-programmed limit will effectively be zero. The sentencing option will be available for dealing with offenders convicted of a drink-driving offence within five years of the commission of the offence being dealt with by the court. The option can also be used for first time offenders convicted of driving with a breath or blood alcohol concentration twice the legal limit or higher. The alcohol interlock programme aims to assist the offender to change their drink-driving behaviour. The sentence includes a licence disqualification of three months, subject to the application of s81 of the Act, followed by an order authorising the person to apply for an Alcohol Interlock Licence. This licence, coloured pink to help distinguish it from standard licences, entitles the person to drive only a vehicle or vehicles to which an alcohol interlock has been fitted. There will be some instances where an alcohol interlock sentence may not be appropriate; for example, where the offender has caused a crash resulting in injury or death. The Alcohol Interlock Licence must be held for a minimum of 12 months, and the person may apply to exit the alcohol interlock programme if: •
they have not violated any of the requirements of the Alcohol
Interlock Licence during the six months preceding the date of removal; or they have not violated any of the requirements of the Alcohol Interlock Licence during the three months preceding the date of removal and completed a successful assessment at a Ministry of Health-approved drug and alcohol assessment centre.
The devices will be available from two approved providers. Each provider has a network of installers around the country, who will only install devices approved by the Minister of Transport by notice in the Gazette. The applicant will have to pay: •
an Alcohol Interlock Licence application fee of $200 to the NZTA; and
a device installation fee and a monthly fee for lease of the device.
Fee information will be detailed on the NZTA’s and provider’s websites once it is known. The device will require a monthly service check, which will also enable the installer to download data on vehicle use and compliance with the requirements of the Alcohol Interlock Licence. After the first few months with the device fitted, the service check period may be reduced to bi-monthly where the offender is found to be compliant with their licence conditions. It is intended that new regulationmaking powers will be used to impose additional requirements of the Alcohol Interlock Licence.
measures. Attempting to tamper with an interlock can immobilise the vehicle, requiring the device to be reset by an approved service agent. They have safeguards built in to prevent the driver having someone sober blow into the device for them. They also prompt the driver to perform further breath tests during their journey.
Zero Alcohol Licences Alcohol interlock programme participants who have met the criteria to exit the alcohol interlock licence stage must apply for a Zero Alcohol Licence as the next mandatory step. From 1 July 2012, the Zero Alcohol Licence will also be available to courts as a standalone sentencing option when dealing with repeat drink-driving offenders. Repeat offenders and alcohol interlock programme participants must hold a current Zero Alcohol Licence for three years. A person who drives with any alcohol in their system while on the Zero Alcohol Licence or the Alcohol Interlock Licence commits an offence.
Zero alcohol v alcohol interlock The following table summarises the differences between these two new types of sentences and licences. Zero alcohol sentences and licences
Alcohol interlock sentences and licences
Repeat drink-driving offenders.
Repeat drinkdriving offenders and first time offenders with double the adult alcohol limit.
Licence application fee
Alcohol interlock device installation fee and monthly lease fees.
Applying for additional licence classes and endorsements
Is entitled to apply for additional licence classes or endorsements.
Not entitled to apply for any additional licence classes or endorsements.
Not automatically precluded from obtaining a Limited Licence.
Not entitled to a Limited Licence.
Do alcohol interlocks work? Overseas research on similar alcohol interlock programmes suggests that a short period of disqualification followed by being restricted to driving only vehicles fitted with an alcohol interlock device is a successful alternative to long-term licence disqualification in preventing repeat impaired driving offences. Use of the device aims to assist the offender to change their behaviours by helping them develop the habit of not consuming alcohol before driving. Part of what makes alcohol interlocks effective while installed are the build in anti-circumvention and anti-tampering
Further information about the alcohol interlock programme and the Zero Alcohol Licence will be made available from mid-June on the NZ Transport Agency website, www.nzta.govt.nz. LT
LAWTALK 796 / 25 MAY 2012
New Immigration and Protection Tribunal practice notes Judge WK Hastings, chair of the Immigration and Protection Tribunal, comments on the issue of amended Practice Notes.
Practice notes The Immigration and Protection Tribunal has now been in operation for nearly 18 months. It commenced operation on 29 November 2010 with two Practice Notes, one for deportation (resident) hearings, and one for refugee and protection hearings. The Practice Notes were issued under s220(2)(a) of the Immigration Act 2009. By 30 April 2012, the tribunal had held 73 deportation (resident) hearings and 220 refugee and protection hearings. The Practice Notes have been amended to address several issues which have arisen as a result of these hearings. It is hoped that these amendments will refine the Practice Notes to an extent that hearings can be conducted in an even more orderly and expeditious manner. Important amendments are: Practice Note 1 (Deportation hearings) Clause 2 sets out the periods specified in the Act for lodging an appeal. Clause 19 clarifies the limitations upon making recordings of tribunal hearings by members of the public (including the press). Clause 23 establishes the presumption that closing submissions will be made orally at the end of a hearing. Clause 28 establishes the procedure for making enquiries about when a tribunal decision will issue. Clause 29 deals with access to the tribunal’s recordings of hearings by setting out the categories of people to whom access may be given, the grounds on which applications may be brought, and the requirements for confidentiality. Practice Note 2 (Refugee and Protected Person hearings) Clause 13 provides abridged times for filing evidence and submissions where the appellant is in custody. Clause 25 establishes the presumption that closing submissions will be made
LAWTALK 796 / 25 MAY 2012
orally at the end of a hearing. It also sets out the different hearing procedure in a cancellation application. Clause 30 deals with access to the tribunal’s recordings of hearings by setting out the categories of people to whom access may be given, the grounds on which applications may be brought, and the requirements for confidentiality. Clause 31 establishes the procedure for making enquiries about when a tribunal decision will issue. The amended Practice Notes come into force on 1 July 2012 and can be found at www.justice.govt.nz/tribunals/ immigration-protection-tribunal/ tribunals-practice-notes.
Timely filing The timeframes for filing documents and submissions in the Practice Notes have not changed. In respect of all appeals except for refugee and protected person appeals where the person is in custody (which includes custody at the Mangere Refugee Centre), these are: (a) all evidence, including statements, must be filed at least 14 days before the hearing; and (b) submissions must be filed at least three clear working days before the hearing. The tribunal will give priority to refugee and protected person appellants in custody and will endeavour to set the appeal down for hearing within 10 days. In such cases, the time for filing is necessarily abridged in the following manner: (a) all evidence, including statements, must be filed at least two clear working days before the hearing; and (b) submissions must be filed by 5pm on the last working day before the hearing. Compliance with these time limits is important to the smooth running of hearings. Compliance ensures
that all counsel, advisors and the appellants themselves have adequate time to reflect on the evidence and submissions, and to present their best case. The member(s) hearing an appeal need to have the evidence (particularly the statements) to hand 14 days before the hearing because it is often only at that point that the real nature of the appeal emerges. Research may be required as a consequence of the evidence and statements, and there are often further steps which need to be taken (obtaining Corrections Department reports in deportation appeals, for example). Non-compliance with the time limits compromises the parties’ and the tribunal’s ability to conduct a hearing that will produce a comprehensive and well-reasoned decision.
Binding and tabulation evidence The tribunal expects all documentary evidence to be presented in a bundle which is bound, page-numbered, tabulated and indexed. If less than about 1 cm thick, it should be ordered as follows: (a) statements; (b) documentary evidence; and (c) country information. If the bundle is thicker than about 1cm, the country information may be presented in a separate bundle, again bound, page-numbered, tabulated and indexed. The method of binding is optional but should allow the bundle to lie flat when open. “I am grateful for the goodwill shown by counsel and advisors at hearings conducted by the tribunal in its first 18 months of operation,” Judge Hastings says. “Compliance by counsel with the amended Practice Notes will improve upon the already high standard in which hearings are conducted.” LT
OVERSEAS Lawyers online
Profit up for British law firms
The “virtual lawyer”, social media and online communication by bars and lawyers is the focus of a landmark congress taking place in Brussels this week.
British law firms continue to rebuild profitability while keeping a tight rein on overheads, according to the annual bellwether of the sector’s financial health, the Law Society Gazette reports. Practices are also relatively bullish about future fees, with most expecting a 3% rise in 2012.
These topics will be the main discussion points during the General Congress of the Federation of European Bars (FBE) from 24 to 26 May. As well as holding the congress, the FBE is also celebrating its 20th anniversary.
Outstanding woman lawyer The International Bar Association (IBA) Women Lawyer’s Interest Group has awarded Chief Olufolake Solanke, Senior Advocate of Nigeria (SAN), the 2012 IBA Outstanding International Woman Lawyer Award.
Chief Olufolake Solanke
The award, given in recognition of Chief Solanke’s professional excellence and her ongoing contribution to the advancement of women within the legal profession, was presented at the IBA’s 5th World Women Lawyers’ Conference in London last month. Among the many achievements of a remarkable career in law, begun just under 50 years ago in 1963, Chief Solanke was appointed as the first female commissioner in the western region of Nigeria (1972); became the first female SAN (1981); was appointed Life Patron of the International Federation of Women Lawyers (FIDA) Ibadan branch (1986) and was honoured as a Fellow of The Nigerian Institute of Advanced Legal Studies in 2009.
Support for same sex marriage The Law Council of Australia told the Senate Committee on Legal and Constitutional Affairs on 3 May that it supports amendments to the Marriage Act that would allow for same sex marriages. The committee is inquiring into a private members bill for same sex marriage. Law Council of Australia President, Catherine Gale, said the Law Council supported efforts to remove discrimination against same sex couples and believed the Marriage Act should be amended to remove such discrimination. In its opening statement to the inquiry, the Law Council made three key recommendations: to amend the definition of marriage to refer to the union of two people rather than a man and a woman; repeal the prohibition on recognising same sex marriages solemnised overseas; and make related amendments to the Marriage Act. The Law Council considers marriage to be an important human right which should be available to all people irrespective of sexual orientation or gender identity, Ms Gale said.
These are among key trends revealed in the 12th Financial Benchmarking Survey, published on 3 May by the Law Society’s Law Management Section (LMS) and covering the 2011 accounting year. Some 181 firms took part in the study, which is regarded as the sector’s definitive financial health check, particularly for the smaller end of the profession. Among the headline findings was a 2% rise in median profit per equity partner to £114,853, a level not seen since the onset of the economic downturn in 2008. Practice fee income rose by 1% in 2011, continuing a recovery that began the previous year. In 2009, firms saw a 6.5% fall. Fee income per equity partner was £562,000.
Insolvency revision planned The European Commission is planning to revise the current European Regulation on insolvency proceedings as part of its “Justice for Growth” action plan, Brussels Agenda (April) reports. The commission considers that “a modern insolvency law helps good companies to survive, encourages entrepreneurs to take risks and permits lenders to lend on more favourable terms”. As such, it takes the view that insolvency law can be an important economic tool, but it considers also that the current legislation needs to be updated. To that end, the commission has launched a consultation, seeking views to help it create a new insolvency law system which reflects alterations in the economic and political environment and changes in national laws since the existing rules were laid down in 2000. LT
The expert in professional liability and discipline LANE NEAVE LAWYERS CONTACT DUNCAN WEBB:
T 03 3793 720 M 021 244 3346 E email@example.com
LAWTALK 796 / 25 MAY 2012
Online registration and payment can be made at www.lawyerseducation.co.nz
Construction Contract Issues for Non-litigators
Carolyn Culliney The Construction Contracts Act, now in its 10th year, is generally working Auckland Howard Thompson well, although some issues have arisen that are a cause for concern. This Tauranga seminar will identify these issues and their implications. It will also consider what legislative matters you should be aware of when drafting a contract.
28 May 29 May
Insurance Law – a practical guide
Lindsay Lloyd Paul Michalik
The catastrophic happenings of 2011 were a wake-up call and made us realise how it is easy to be wise after the event. Things we perhaps should have contemplated, and taken into account, hadn’t been. If you have any dealings with commercial purchases or leases, bodies corporate, residential purchases or businesses you need to be aware of the pitfalls so that you can give your clients comprehensive insurance advice. This seminar will take a practical look at insurance; what it is, and the many issues that can arise, especially in relation to property.
29 May 30 May 31 May 31 May
Lawyer as Negotiator
Building on participants’ own experience, this one and a half day workshop Christchurch 29-30 May provides hands-on practice and feedback, as well as a conceptual framework Wellington 2 30-31 Oct for preparing for and undertaking negotiations. It uses cutting edge research Auckland 2 7-8 Nov to examine different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, for addressing specific issues which participants might wish to raise and for generally enhancing skill and confidence in this vitally important aspect of practice.
Search & Surveillance
Michael Heron Dale La Hood
The Search and Surveillance Act 2011 brought major reform to search and surveillance powers and has subsequently had further amendments. This seminar will discuss the impact of the key changes – what are the new powers, how are they assessed, how can they be used? A live two hour webinar will be held for smaller centres.
Dunedin Christchurch Wellington Hamilton Auckland Webinar
5 Jun 6 Jun 11 Jun 12 Jun 13 Jun 11 Jun
Lending and Securities – changes to consumer and commercial credit laws
Sarah Simmers Stuart Walker
Credit law and lending practices have come under scrutiny as a consequence of the global financial crisis, third-tier lenders practices and recent litigation involving lenders. The government has proposed amendments to the Credit Contracts and Consumer Finance Act 2003 to protect consumers including introducing new responsible lending requirements. The presenters will summarise and offer their perspectives on these changes. A live two hour webinar will be held for smaller centres.
Christchurch Dunedin Hamilton Auckland Wellington Webinar
5 Jun 6 Jun 11 Jun 12 Jun 13 Jun 13 Jun
Succession Planning for Farming Families
Tim Black Frazer Weir
Presenters will discuss how practitioners who advise agricultural families can Your help guide clients through a thoughtfully managed process of communication, computer planning and good structuring to a fair and successful outcome, acceptable Webinar to all family members and avoiding unnecessary accounting and legal costs.
Property Law Conference
Chair: Andrew Logan
The biennial 2012 Property Law Conference will be held on Monday 18 and Auckland Tuesday 19 June at the Pullman (formerly the Hyatt) in Auckland. The chair is long-time PLS Executive member Andrew Logan of Mortlock McCormick Law, Christchurch. With nine plenary sessions, two lots of breakout sessions and a stellar line-up of presenters this is an event not to be missed.
Corporate Governance Intensive
Chair: Justice Paul Heath
Corporate Governance is one of the major themes in the courts at present Wellington with many corporate governance issues arising out of recent finance company Auckland collapses. The issues are both civil and criminal, and there are a lot of lessons to be learnt. This intensive will take a close look at the issues highlighted by recent cases.
21 Jun 22 Jun
Expert Witness Programme
Director: Terry Stapleton
This two-day programme follows the tried and tested teaching methods Wellington pioneered by the prestigious United States National Institute for Trial Advocacy (NITA). There are the same learning-by-doing methods that have proved so successful in both the annual basic level NZLS CLE Litigation Skills Programme and the advanced course. This course concentrates on working with expert witnesses. The course is designed for all litigators from civil, criminal, family and other specialist jurisdictions with at least five years’ experience.
21-22 Jun (Full)
SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012
Christchurch Wellington Auckland Live videoconference
Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see www.lawyerseducation.co.nz or email firstname.lastname@example.org or contact CLE information, tel 0800 333 111.
SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Fonterra Update and Federated Farmers
Sean O’Sullivan Chris Spargo
Presenters will cover two areas of dairy sector issues commonly encountered by Your rural practitioners. Firstly, Fonterra milking contract issues, the Trading Among computer Farmers scheme and new rules being implemented by regional councils. Secondly, Webinar employment relations and contractual provisions in the rural sector.
Stepping Up – Foundation for practising on own account
Director: John Mackintosh
The new national course Stepping Up replaces the various local Flying Start courses. Christchurch All lawyers wishing to practise on their own account whether alone, in partnership, Auckland 2 in an incorporated practice or as a barrister, will be required to complete the course. Wellington Developed with the support of the NZLF.
19-21 Jul 6-8 Sep 8-10 Nov
Litigation Against Directors and Companies
Colin Carruthers QC With the recent successful prosecutions, are you confident that you are giving the Victoria Heine best advice to company directors and officers? This seminar gives an overview of current law and law reform proposals, including the range of new enforcement actions under the Financial Markets Conduct Bill and enforcement under the Commerce Act. Key practical and strategic issues which need to be considered when advising directors facing regulatory investigations, or litigation will also be discussed.
Litigation Skills Director: Jonathan Krebs Deputy Director: Janine Bonifant
Dunedin Christchurch Wellington Auckland Webinar
This highly regarded residential week-long course is open to applicants with at Christchurch least three years’ litigation experience. Based upon the National Institute for Trial Advocacy (NITA) teaching method, selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. Applications close 22 June 2012
24 Jul 25 Jul 26 Jul 27 Jul 26 Jul 19-25 Aug
TRUST ACCOUNT TRAINING PROGRAMMES Trust Account Supervisor Training Programme
Mark Anderson, John Hicks or David Littlefair. And David Chapman, Bob Eades or Lindsay Lloyd
To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, attend the assessment day and pass all assessments. Make sure you register in time to do the preparatory work before the assessment day as listed on the right.
Hamilton Wellington Auckland Christchurch
11 Jul 12 Sep 14 Nov 21 Nov
ENTRY LEVEL PROGRAMMES
Developed with the support of the Law Foundation
Introduction to Company Law
Jeremy Blake Andrew Leete John Horner Anne McLeod Graeme Switzer Daniel Wong
This is a practical two-day workshop for practitioners in their first three years’ of Wellington practice with small, medium or large firms. It will cover issues such as acquiring a business, funding, governance, distributions, expansion, shareholder disputes, financial problems and the sale of shares. Participants will gain many practical tips to enable them to develop good practice and provide quality advice to their clients.
28-29 May (Full)
Residential Property Transactions
Debra Dorrington Simon Ellis Nick Kearney Duncan Terris
This very popular two-day, limited-number workshop, for solicitors at the start Christchurch of their property law career and legal executives with some experience, follows Wellington three files from client instructions to settlement and beyond. Hamilton Auckland
11-12 Jun 16-17 Jul 18-19 Jul 23-24 Jul
Duty Solicitor Training Programme
Duty solicitors are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. You will: • complete pre-course reading on the key tasks of a duty solicitor • learn about penalties, tariffs and sentencing options • observe experienced duty solicitors (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty solicitor at a practice court • be observed and assessed while appearing as a duty solicitor (a full day).
Hamilton Tauranga Rotorua Dunedin Invercargill Wellington 2 Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei
1 Jun, 20 Jul, 21 Jul 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 13 Jul, 31 Aug, 1 Sep 13 Jul, 31 Aug (in Dun) 1 Sep (In Dun) 3 Aug, 14 Sep, 15 Sep 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 21 Sep, 26 Oct, 27 Oct 21 Sep, 26 Oct (in Man), 27 Oct (in Man)
Programme brochures, online registration and booket purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz
BRANCH NEWS GISBORNE NEW ZEALAND LAW SOCIETY NZLS EST 1869
Gisborne President re-elected at AGM Alistair Clarke was re-elected President of the Law Society’s Gisborne branch at its annual meeting on 27 April. A partner of Burnard Bull, Mr Clarke specialises in litigation with a strong focus on criminal law. He also practises in mental health law, in the Youth Court, where he is a Youth Advocate, and in general practice work. Mr Clarke has an interest in land law and all aspects of conveyancing and estate work. He is a pro bono lawyer for Gisborne Age Concern and the Pacific Islands Community Trust. After graduating LLB from Auckland University in 2003, he was admitted in
Jessica MacLellan, Jacqueline Haapu, Maja Harris, Julie Mettrick, Cerys Lloyd.
2004. Mr Clarke joined Burnard Bull as a law clerk in 2003 and became a partner of the firm in 2007.
The new Gisborne branch VicePresident is Maja Harris, a staff solicitor with Woodward Chrisp.
An avid hunter, fisherman and diver, Mr Clarke is married to Deborah and they have one daughter, Isla.
The branch council members are: Bryony Shackell, Aaron McIlroy, Toby Moore, Phil Dreifuss and David Ure.
WAIKATO BAY OF PLENTY NEW ZEALAND LAW SOCIETY
NZLS EST 1869
Young lawyers meet the judiciary The invitation for Waikato Bay of Plenty young lawyers to meet the judiciary drew a large crowd on 26 April. Over 40 practitioners attended the event held at the Tompkins Wake Boardroom to meet seven Hamilton judges. At the function, Judge David Ruth spoke about the impacts the Christchurch earthquake has had on the legal community.
Morgan Steele, Ryan Smith, Stephanie Robb, Lauren Priest, Alice Balme, Tamsyn Harris.
Judge Barney Thomas spoke about his time at The Hague. Waikato Bay of Plenty Young Lawyers convenor Katrina Hamblin said the event was very successful with the young lawyers having an opportunity to mix and mingle with judges one-on-one. LT
LAWTALK 796 / 25 MAY 2012
Katrina Hamblin, Judge David Ruth, Judge Merelina Burnett and Benedict Ryan.
Anamika Singh and Jess Gilby-Todd.
LAWYERS COMPLAINTS SERVICE Lawyer fined for ‘irreconcilable’ conflict of interest A Lawyers Standards Committee imposed a substantial fine on Tauranga lawyer David Small after he acted for a client couple and their investment company in a property purchase where he was also one of the buyers and the property was then leased to his law firm. The committee also directed name publication. The facts In 2003 Mr Small had offered the clients the chance to buy a half-share in a Tauranga property. The other half share was bought by Mr Small and several others. A mortgage for some or all of that half share was secured over the property. A further advance under this mortgage was spent on improvements payable by all the parties. The client husband personally guaranteed the mortgage. The property was bought in the name of a company set up for this purpose. Half the shares were owned by the client husband, while the lawyer and his law partner owned 19% each and the other four buyers the remaining 12%. The clients’ investment company loaned more than $780,000 to the buyer company for the purchase, but this loan was not documented or secured. The clients also paid a share of the costs of fitting out the property for it to be occupied by Mr Small’s law firm and other tenants. Mr Small acted as the lawyer on the purchase of the property, on the bank loans, and on the lease to his firm. He also acted on the formation of the buyer company and on a shareholders’ agreement − which, however, was not concluded or signed. Finally, he had acted as attorney for the client husband for a bank advance to the buyer company. These funds were to enable Mr Small to buy out two of the other shareholders.
The complaint The clients complained of negligence, conflict of interest, and unethical conduct. Their complaint specified, among other things, that Mr Small had not offered them legal advice and had wrongly used the client’s power of attorney.
The lawyer’s response Mr Small confirmed that the couple and their investment company had been his clients and that he had acted on the purchase, the lease and other transactions. He said, however, that when he signed for the bank advance as the client’s attorney he had understood that the client was overseas, although he conceded he hadn’t attempted to confirm this. The committee said it appeared the husband had, in fact, been in New Zealand.
The findings The Standards Committee said there had been an irreconcilable conflict of interest in this case. Mr Small had offered his clients the chance to share in buying a property when he was also to hold a share and personally be a lessee. The committee found it “surprising and reprehensible” that at that point he had not insisted on the clients getting independent legal advice and facilitated them getting it. The committee said that if the clients’ investment company had been independently advised it would have insisted on its loan to the buyer company being documented and secured. There should also have been a robust constitution for the buyer company and a shareholders’ agreement. The committee said an independent lawyer may also have taken a “dim view” of the terms of the lease, which didn’t include any rent review until the renewal date in six years’ time. The committee added that it was “seriously reprehensible” that Mr Small had arranged for a further loan as attorney so that he could buy out other shareholders. He had made a
commitment to the bank on the client’s behalf without the client’s approval and without facilitating him getting independent advice. Mr Small had continued acting for the couple until December 2010. His conduct therefore spanned both the old disciplinary regime under the Law Practitioners Act 1882 (LPA) and the provisions of the Lawyers and Conveyancers Act 2006 (LCA), which came into force on 1 August 2008. The committee found the lawyer’s pre-August 2008 conduct amounted to misconduct, and that after that date he had been guilty of unsatisfactory conduct under the LCA. It said he had abused his clients’ trust and confidence and had failed to act in their interests and provide them with competent, independent advice.
Penalty The committee said it was clearly open to it to refer this case to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. However, it decided on balance that it had adequate powers to make appropriate orders. For his conduct up to August 2008 the committee censured Mr Small and fined him $2,000, the maximum under the LPA. For the more recent conduct, it censured him, ordered him to apologise to the clients, and fined him $12,500. It also ordered him to pay $1,500 costs to the Law Society. The clients had claimed compensation, but the committee said it was difficult to quantify their loss until the property was sold and their loan to the buyer company was repaid. The clients had also asked a valuer to assess the extent to which Mr Small’s firm had been paying below-market rent. The committee said it considered that the courts would be the proper forum for assessing whether the clients had suffered, or would suffer, a loss as a result of their lawyer’s actions and the extent of any loss. It said quantifying any loss would likely involve expert evidence and possibly serious conflicts of evidence.
LAWTALK 796 / 25 MAY 2012
L AW YERS COMPL AINTS SERVICE
Publication The committee directed Mr Small’s name be published. In reaching this decision, the committee had regard to (among other things) the seriousness of Mr Small’s conduct, the need to protect legal consumers by ensuring they are informed of this matter, and the need to protect the profession’s most valuable asset − its collective reputation. LT
Lawyer suspended after lending to clients through his “investment vehicle”
could get independent advice. He told them there was no time for this, as settlement was scheduled for a few days later. The clients signed the funding agreement. Mr Dallison asked them to have the documents separately witnessed, but at no point did he advise them to get independent advice. As it happened, the business was not successful and the clients could not keep up the monthly payments. Mr Dallison took proceedings against them to recover the money, and the couple were declared bankrupt. The lawyer himself was left with a $100,000 loss.
The charge Mr Dallison admitted a charge of misconduct that specified several breaches of the Conduct and Client Care Rules:
When he initially set out the funding proposal in an email without disclosing his connection with the lender, Mr Dallison had breached rule 5.4.1, which requires lawyers to disclose to a client any interest they have that touches on the matter on which they are acting, even if there is no conflict. In addition, or alternatively, Mr Dallison had misled or deceived the clients, a breach of rule 11.1.
By acting for the clients in the loan transaction, Mr Dallison had breached rule 5.4.2, which bars lawyers from acting in any transaction in which they have an interest, unless the matter is uncontentious and the interests of lawyer and client correspond in all respects.
Several days later, Mr Dallison emailed his clients a written funding proposal. This was a profit-sharing proposal where the company would advance them $140,000 and they would pay $5,000 a month as an advance of a half-share of the business’s net profits. The clients recognised this would be financially debilitating for them, but they decided to accept the proposal as they felt they had no other options.
By entering into the loan arrangement as director and co-owner of the lender company, Mr Dallison had breached rule 5.4.3, which bars lawyers from entering into any financial, business or property transaction or relationship with a client if this could compromise the relationship of confidence and trust between lawyer and client.
The client service information Mr Dallison had given the couple had not stated the basis on which fees would be charged or when fees had to be paid, in breach of rule 3.4(a). The information stated instead that the “basis on which fees will be charged will be advised at the first interview”.
The next day Mr Dallison sent the clients the funding documents to be signed. It was only then, in the last paragraph of the cover letter, that he revealed to them that the proposed lender was his and his wife’s “investment vehicle”. The letter asked the clients to treat this confidentially.
Factors relevant to penalty
Nelson lawyer Peter Dallison has been suspended for four months by the Lawyers and Conveyancers Disciplinary Tribunal and barred from practising on his own account after he arranged for clients to borrow from a company co-owned by him and his wife. Mr Dallison disclosed his interest to the clients only when he gave them the loan documents to sign and did not advise them to seek independent advice.
The facts The client couple had signed an agreement to buy a business, but after they had already declared the contract unconditional their finance became unavailable. The clients asked Mr Dallison to seek an extension of the settlement date, but he dismissed this as a possibility. Several days later he told the couple he had another client, a company, that might provide funding. At that point, Mr Dallison did not tell his clients that he and his wife were the directors and owners of this company.
The tribunal took into account that Mr Dallison had engaged counsel and admitted guilt early on. Both clients had also been aware of the conflict of interest before they signed the loan documents, and one of them was also an accountant.
Given Mr Dallison’s obvious conflict of interest, the clients again asked him to seek a later settlement date, so that they
However, the tribunal noted the evidence of one of the clients that there had been no time to do anything other than accept the proposal, given Mr Dallison wouldn’t seek an extension as they had asked. The tribunal said that while the business sales agent had provided other options to the clients, it was Mr Dallison, their lawyer, who was telling them they Providing professional indemnity and specialist insurance products to the legal profession had to proceed.
Visit our website www.justitia.co.nz for further information and application forms or contact:
Mr John Martin, Aon New Zealand
(04) 819 4000 • fax (04) 819 4106 email email@example.com
LAWTALK 796 / 25 MAY 2012
Mr Dallison told the tribunal his motive had been to help a client who was in real financial difficulties. However, the tribunal said there had
L AW YERS COMPL AINTS SERVICE been an opportunistic element of potential self-gain in the lawyer’s behaviour. It pointed to his failure to seek an extension or to secure the clients separate advice, and to his request that they keep the matter confidential. The tribunal also noted that the agreed monthly payments, if calculated as an interest rate, were roughly 43%, whereas the late settlement rate under the contract was only 18%. Mr Dallison told the tribunal he had taken rehabilitative steps by merging his practice with another and working under the supervision of a senior lawyer. This mitigating factor was diluted by the absence of any affidavit from this other lawyer in support of Mr Dallison or to describe the level of supervision. The tribunal also noted that Mr Dallison had been found guilty of an earlier disciplinary breach in 2005. The charge referred to conduct unbecoming, but the disciplinary tribunal in that case had also described his behaviour as “professional misconduct”. The tribunal said Mr Dallison’s own loss of $100,000 could not be considered as a mitigating factor, because it had arisen directly out of his offending.
Penalty The tribunal said there had been a blatant conflict of interest and Mr Dallison should immediately have sent the clients for a second opinion. None of the factors in this case outweighed his fundamental fiduciary duty to put his clients’ interests first at all times. As to his failure to give the clients information about fees, the tribunal said it saw this as a less serious breach, but it emphasised that transparency in this area was important and that all lawyers should be aware of the relevant obligations. The Standards Committee that brought the misconduct charge had not sought a suspension, but rather an order barring Mr Dallison from practising on his own account without the tribunal’s permission. The tribunal said, however, that this “would be quite inadequate to reflect the seriousness of this matter”. It suspended the lawyer from practice for four months, as well as censuring him and making the order sought by the committee. The tribunal cited the High Court’s statement that: “It will not always follow that a practitioner by disposing of his practice and undertaking not to practice can avoid or pre-empt an order for suspension” (Daniels v Complaints Committee 2 of the Wellington District Law Society,  NZAR 639). The court had said that the real issue was whether a suspension was an appropriate and necessary response, and that the public was entitled to know that serious disciplinary breaches would not be treated lightly. The tribunal also ordered Mr Dallison to pay the Law Society $7,500 costs, and to reimburse the Society $5,000 for its payment of the tribunal’s own costs. LT
Registry The following people have applied to the NZLS for certificates or approvals.
Admission under Part 3 of the Lawyers and Conveyancers Act 2006
Auckland Branch Maria Elena HAMBER Wing Yi KAM Mo Yee POON Joseph Rajend PRASAD Fei Fei TEH Tofiga TUSIANE Canterbury Westland Branch Shaun Andrew BROOKES Benjamin David Andrew COLLINS Rachel Janet MORRISON Nicholas Steven ROBERTSON Manawatu Branch Hannah Marie COPE
Taranaki Branch Rachel Mary JOHO Lauren Kate TENNENT Joelle Lois AVERY Waikato Bay of Plenty Branch Carlos Anthony Taniwha HARMON Shirlene Nita TAYLOR Alice Rozel BARKER Ryan John Christian KERR-BELL Madison Florence STARK Susannah Elizabeth Margaret GODBAZ Mei-Hsuan (Mandy) LU Jasper Jay Ysrael Racines PIERCE
Otago Branch Michael David Stephen BECK
Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006
Auckland Branch Christopher Paul MERRICK Moala SOANA Nicola Christine THOMAS Canterbury Westland Branch Joshua Michael ORTON
Waikato Bay of Plenty Branch Fiona Hudson THOMPSON (formerly DENNEHY nee LEAF)
The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at http://www.lawsociety.org.nz/home/for_lawyers/registry/ applications_for_approval/ Comments concerning the suitability of any of the above-named applicants for the certificate or approval being sought should be made in writing to me by 31 May 2012. Any submissions should be given on the understanding that they may be disclosed to the candidate.
CONTACT FRANK NEILL editor @lawsociety.org.nz
Lisa Attrill, Registry Manager Email: firstname.lastname@example.org, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989
LAWTALK 796 / 25 MAY 2012
Not to be employed
Legal Aid Tribunal unable to review invoices
The New Zealand Lawyers and Conveyancers Disciplinary Tribunal has ordered that Haylee Anne Faulkner not be employed by any practitioner or incorporated law firm in connection with their practice. The order is to remain in force until lifted by the tribunal.
The Legal Aid Tribunal has no jurisdiction over decisions made by the Legal Services Commissioner on amounts payable to legal aid providers, the tribunal has said.
Background Ms Faulkner was convicted in the District Court of multiple charges of using a document dishonestly for pecuniary advantage. The offences had been committed while she was an employee of a law firm. She had stolen money from her employer by making false entries which generated cheques of about $15,500 and had also forged signatures on the cheques. Ms Faulker was sentenced to 160 hours community work and 9 months supervision and ordered to pay reparation at the rate of $25 a week. Before the tribunal, Ms Faulker admitted a charge of misconduct.
Tribunal’s decision The tribunal made the order not to employ by consent, noting that its focus was not punitive but protection of the public and the standing of the profession. The tribunal ordered Ms Faulker to contribute $1,000 to the Standard Committee’s costs of $11,000. No order was made for Ms Faulker to contribute to the costs payable to the tribunal by the New Zealand Law Society. The tribunal noted that Ms Faulker had been co-operative both before the District Court and the tribunal, and had accepted her wrongdoing. The tribunal also noted Ms Faulker’s personal and family circumstances, and accepted that they had had a serious impact on her. It noted, too, the advice from Ms Faulker’s counsel that the monies stolen had been used to meet household expenses rather than for more indulgent purposes. Ms Faulker was now a full-time student and the reparation of $25 a week would be more significant to someone in her position than someone in employment. LT
In a case before the tribunal on 18 April, an aided person applied for a review of the decision by the Legal Services Commissioner concerning his legal aid provider’s invoice. The legal aid provider had submitted an invoice for $232.76, but his invoice had only been approved for payment of $75.44. The tribunal held that it had “no
We specialize in the areas of property, trusts and litigation and can offer you a good mix of work in these areas.
Fleur Rowe – Associate
You will need to be well organized and efficient, and have at least category 1 legal aid provider status. You will need to have general practice and Court experience. Please apply in confidence to the Office Manager, Eastland Legal, Lawyers, PO Box 977, Gisborne Fearon & Co 56x100 ad_BW.qxd:Layout 1
ENGLISH LAW AGENCY SERVICES
The Partners of Tripe Matthews Feist are pleased to announce that Fleur Rowe has been appointed an Associate of the firm from 1 April 2012.
Fleur’s areas of practice are property law, commercial law, trusts, estate and asset planning.
Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations
VISIT OUR WEBSITE www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 00 44 (0)1483 540840 Fax: 00 44 (0)1483 540844 General Email: email@example.com
00 44 (0)1483 540843
LAWTALK 796 / 25 MAY 2012
We seek a lawyer with at least 2 years’ PQE.
Previously, the Legal Aid Review Panel did have jurisdiction to review such decisions. This case also highlights that lawyers cannot apply to the new tribunal in their own right. Applications must be made in the name of the aided person. LT
Martin Williams www.facebook.com/mylawsociety
jurisdiction over decisions made concerning invoices” under the Legal Services Act 2011. The only exception to this relates to invoices for work done before 1 July 2011, pursuant to s130 of the 2011 Act. On that basis the application was dismissed.
PROPERTY John Phillips
00 44 (0)1483 540841
Francesca Nash 00 44 (0)1483 540842
Regulated by the Solicitors Regulation Authority of England and Wales
Fleur’s contact details are: 38-42 Waring Taylor Street, Wellington PO Box 5003, Wellington, 6145 DX SP 22509, Wellington Tel (04) 472 5079 or DDI (04) 494 8366 Fax: (04) 473 3696 Email: firstname.lastname@example.org
WILLS MONIQUE ANN WENDELKEN Would any lawyer holding a will for the above-named, late of 22B Maclean Street, Cambridge who died on 7 April 2012, please contact Rebecca Whittall at Cooney Law, Solicitors, PO Box 369, Cambridge 3450, ph 07 823 1555, fax 07 823 2442 or email email@example.com.
Solicitor, Legal Services Team, Christchurch Are you ready for a challenging legal role in conservation?
Senior Solicitor, Partnership Potential - Napier Bisson Moss is a highly regarded Napier firm with over 90 years of history. They currently have an opportunity for a selfstarting solicitor to enter into an arrangement that could result in early partnership without a significant capital contribution. You will bring innovation and drive to the practice and take advantage of the existing long-standing client base and be capable of enhancing the firm’s profile.The main areas of practice you will need to be experienced in are: • • • •
Commercial Residential conveyancing Trust/estate planning Non-contentious property relationship matters
There is no court work involved and the successful candidate would join a well-established team of legal professionals with an experienced principal at the helm. With a minimum of seven years’ PQE you will either already be working in the Hawkes Bay and be looking for partnership opportunities, or looking to relocate for work/life balance reasons from a major centre. For further information in strict confidence please contact Ben Traynor or Clare Savali on 04 471 1423 or email firstname.lastname@example.org
We are looking for a lawyer with 3-5yrs experience in resource management and public law, and an interest in giving legal advice on conservation legislation and operations. This is an exciting opportunity to be involved in helping build a new operating model that will provide an integrated professional service to the rest of the Department. You could be working on legal issues that occur from Cape Reinga to Bluff, the Kermadecs to the Sub Antarctic Islands, the Ranger in the field to the Minister of Conservation. The ideal candidate will have experience and practical knowledge in working with legislation administered by the Department. Strong analytical skills and the ability to communicate practical legal advice in a non technical manner are essential. While you will be a committed team player, you will also be a self starter and be able to work independently. An understanding of the principles of the Treaty of Waitangi is an advantage. Applications must include a completed DOC Application for Employment form, a CV and evidence of the required capabilities as per the Role Description. For further information or to apply, please contact Jo Mummery-Smith, email@example.com, or phone 04 741 3268, quoting Vacancy 30/6119. Alternatively you can visit our website at www.doc.govt.nz Applications close at 12pm Monday, 11 June 2012.
Phone: +64 4 471 1423 Email: firstname.lastname@example.org www.nicherecruitment.co.nz
WILLS MARLIO (AKA MARLEO) ROBERT PARAHA
RONALD EDWARD WEMYSS
Would any lawyer holding a will for the above-named, late of 10 Collingwood Street, Whangarei, refinery worker, who died on 23 June 2011, please contact Robyn Mathews, PO Box 664, Whangarei 0140, ph 09 437 3070, fax 09 437 2070 or email email@example.com.
Would any lawyer holding a will for the above-named, late of Edmund Hillary Retirement Village, 221 Abbotts Way, Remuera Auckland, who died on 31 January 2012, please contact Stuart Hickman, Cargill Stent Law, DX KP37002 or PO Box 445, Taupo 3351, ph 07 376 1653, fax 07 378 2697 or e-mail firstname.lastname@example.org.
HELEN ERICA SCHOFIELD (NEE Cowie) Would any lawyer holding a will for the above-named, late of Franklin Zoo & Wildlife Sanctuary, 83 Ridge Road, Tuakau, Auckland, veterinarian, born 21 January 1962 who died on 25 April 2012, please contact Bridget Chrystall of Davidson Armstrong & Campbell, Solicitors, PO Box 54, Waipukurau 4242, ph 06 858 6660, fax 06 858 8481 or email email@example.com.
Julian Antony James Would any lawyer holding a will for the above-named, born on 25 September 1971 of Subiacho, Perth, Australia, data analyst, who died between 28 December 2011 and 29 December 2011 in Auckland, please contact Kathryn Williams of Logan Gold Walsh Lawyers Limited PO Box 562, DX PA89009 Masterton 5840, ph 06 370 6480, fax 06 377 7496 or email firstname.lastname@example.org.
DENIS WILLIAM O’BRIEN Would any lawyer holding a will for the above-named, born 7 October 1948, beneficiary, late of Gracelands Retirement Village, Hastings, previously of 1 James McLeod Rd, Shelly Beach, Helensville, who died on 15 November 2011, please contact Richard Stone, Souness Stone Law Partnership, PO Box 975, Hastings 4156, ph 06 878 7761, fax 06 878 6599 or email email@example.com.
BRYAN JOHN EASTWOOD Would any lawyer holding a will for the above-named, late of Wellington, regional manager, who died on 15 March 2012, please contact Sue Rose, Family Law Specialists Limited, PO Box 50513, Porirua 5240, DX SP32504, ph 04 237 4063, fax 04 237 4062 or email firstname.lastname@example.org.
EDDIE (AKA EDWIN) HUBBARD Would any lawyer holding a will for the above-named, born 28 June 1958, late of Massey East, Auckland, who died on April 18 2012, please contact Melissa, ph 021 201 7370 or email email@example.com.
UNITY ANN ETERNA (aka UNITY ANN ELLMERS) Would any lawyer holding a will for the above-named, who died on April 30 2012, please contact Ian Farquhar, Lawyer, PO Box 1239, Taupo 3351, ph 07 378 1859 or email firstname.lastname@example.org.
Courtney Eric FOLLETT Would any lawyer holding a will for the above-named, previously 316 Hereford Street, Christchurch, but late of 12 Lea Street, Oamaru, who died 7 May 2012, please contact Sharon Pratt, 463 Crane Road, RD 1 Kamo, Whangarei 0176.
LAWTALK 796 / 25 MAY 2012
Civil Litigator 1-3 Years Experience
A Sampling of Our Wellington Vacancies
• Build your personal brand within this specialist
Banking/finance solicitor, 3-5 years: Reporting to a
boutique litigation practice
personable and highly regarded partner, you will fill
• A variety of high profile projects on offer
a very important gap between the junior and senior
This specialist litigation firm practicing in insurance,
members of the team. Broad range of work; high
construction and commercial/property litigation
autonomy. Ref: 29886
is recruiting a motivated self-starter with proven
Senior Litigation/Competition/regulatory solicitors:
experience in civil litigation to include construction
Leading firm seeks two senior solicitors with litigation
and insurance matters. This role will expose you to
or competition/regulatory experience. Experience
some of the larger multi-party and single dwelling
with or interest in staff supervision experience would
building disputes in Wellington.
be ideal. Ref: 22162
The ideal lawyer will demonstrate attention to detail, thorough research and analytical skills and an ability
Intermediate commercial solicitor: 2-4 year PQE
to communicate with a wide variety of clients.
solicitor sought for role encompassing securities,
This innovative firm provides the latest training in
regulatory compliance, superannuation and other
legal practice, up to date technology and competitive
managed funds work. Hone your skills in this expert
remuneration. The role requires a current NZ
team. Ref: 29120
Practising Certificate and recent NZ experience. Wellington Ph: +64 4 499 6161 PO Box 11003 Auckland Ph: +64 9 306 5500 PO Box 105732
To apply, please send your CV to email@example.com quoting reference number JL30110. For further information in strict
Wellington Ph: +64 4 499 6161 PO Box 11003
Marissa Barnao on 04 499 6161.
firstname.lastname@example.org quoting the reference number. For further information in strict
Auckland Ph: +64 9 306 5500 PO Box 105732
confidence, please contact Jennifer Little or
To apply, please send your CV to
confidence, please contact Carla Wellington or Marissa Barnao on 04 499 6161.
Senior Roles, Dynamic Organisation Auckland Council is a progressive dynamic organisation operating in an exciting time of change. This is your chance to make a difference in your community as an integral part of the Council’s growing legal team. These four newly created specialist roles each offer the opportunity to make an impact. Senior Solicitor – Governance and Local Boards A lead advisory role working closely with Local Boards
enjoys establishing client focused networks.
A lead advisory position providing expert advice under regulatory legislation, with a particular focus on the Resource Management Act, Local Government Act and Building Act. Develop your RMA and litigation specialty.
Senior Solicitor – Governance and Litigation
Team Leader – Prosecutions
This role will appeal to a confident advocate who will
Excellent advocacy skills and a high level of specialist
A senior level role leading and managing the Prosecutions services, managing a caseload, and building and maintaining relationships. Prosecute matters in Court, allocate work across the team, manage workflows, oversee work by external providers and within the team.
experience in governance and litigation required.
and acting as their key point of contact in the legal team. Ideal role for an excellent communicator who
assist in Auckland Council’s response to administrative law matters, public law and governance litigation.
Wellington Ph: +64 4 499 6161 PO Box 11003 Auckland Ph: +64 9 306 5500 PO Box 105732
Senior Solicitor – Litigation and Regulatory (RMA focus)
CW30134 To apply please email your CV and academic transcript to email@example.com. For further information (including job descriptions) please contact Meryn Hemmingsen in strict confidence on 09 306 5500. All positions close 1 June 2012 at 10.30pm.
To apply visit www.momentum.co.nz and enter reference number. Alternatively email your CV with reference number to firstname.lastname@example.org