NZ Lawyer issue 6.04

nzlawyermagazine.co.nz

Issue 6.4

TAKING FLIGHT Air New Zealand general counsel John Blair on representing a Kiwi icon

NEW ZEALAND LAW AWARDS 2014 MEET THE WINNERS

WELLINGTON CITY REPORT LAWYERS IN THE CAPITAL ANTICIPATE REGULATORY REFORM

LITIGATION AND DISPUTE RESOLUTION ARE CLASS ACTIONS THE NEW FRONTIER?

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Employment Law in New Zealand

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LexisNexis N e w Z e a l a n d L a w D i c t i o n a r y • 8TH EDITION • Peter Spiller

Gordon Anderson • John Hughes

Employment Law in New Zealand New Zealand Law Dictionary 8TH EDITION • Peter Spiller

A must-have text for anyone who requires a comprehensive overview of this area of the law.

Employment Law in New Zealand

This approachable book helps readers to answer employmentrelated questions and provides a starting point for undertaking more specific research. Chapters include further reading and additional resource suggestions.

Gordon Anderson John Hughes

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While mostly in English, the dictionary contains a wide range of terms relevant to New Zealand, including Te Reo Māori entries, as well as historical terms in Latin and French. The Dictionary is an unparalleled reference tool for New Zealand lawyers, law students, and anyone else who needs to understand legal language.

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Legal Writing

A Complete Guide for a Career in Law

Richard Scragg • EDITOR Lynne Taylor • Simon Dorset • Sarah Hughes • Jonathan Scragg • Andrew Simpson • Stephen Hunter • Matthew Harris • Aaron Sherriff • CONTRIBUTORS

Focus on Resource Management Law provides a straightforward introduction to resource management law. It explains the main statutory provisions, includes summaries of the leading cases, suggestions for further reading and prepares students for exams by including practice exam questions and answers.

Legal Writing: A Complete Guide for a Career in Law is the successor to the legal writing part of Legal Research and Writing in New Zealand. This new, comprehensive is an essential companion for those seeking a career in law. The easy to follow content addresses and demonstrates legal writing for the student and practitioner. It also shows the progression from university law student, to undertaking professional legal training, seeking employment and then working as a lawyer.

Legal Writing: A Complete Guide for a Career in Law includes chapters on: • writing good English

• how to write essays, research papers and dissertations • test and exam preparation and execution • admission to the legal profession • gaining employment

• writing legal memoranda and legal opinions

Focus on Resource Management Law

• letter and email writing

1ST EDITION Ceri Warnock Maree Baker-Galloway

• overseas admission as a lawyer in Australia, England and Wales, Hong Kong, USA and Canada

This new guide has been written by an experienced author team under the general editorship of Richard Scragg, one of the authors of the original Legal Research and Writing in New Zealand. Each contributor brings expertise and a practical understanding of their subject to both academic and professional environments.

LexisNexis Legal Writing A Complete Guide for a Career in Law • Richard Scragg • EDITOR

Focus on Resource Management Law

1ST EDITION • Ceri Warnock • Maree Baker-Galloway

Focus on Resource Management Law

Legal Writing:

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Legal Writing A Complete Guide for a Career in Law Richard Scragg • EDITOR

A Complete Guide for a Career in Law This comprehensive guide is designed to provide law students with the skills they need, from the minute they reach law school right through to admission to the Bar, in multiple jurisdictions. It will help students write their essays, prepare for exams, and support the reader as they prepare for the legal profession.

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12 COVER STORY

Taking flight

Air New Zealand general counsel John Blair on representing a Kiwi icon in a dynamic industry

22

THE WORLD AT YOUR DOORSTEP

FEATURES 16 | Litigation and dispute resolution: Class actions the new frontier?

Litigators gear up for a season of construction disputes and class action claims 26 | Wellington City Report: New Zealand’s employment law landscape With the election over, lawyers in the capital anticipate regulatory reform

26

30

Minter Ellison Rudd Watts’ Mark Weenink offers an international perspective on New Zealand’s legal market

30 | New Zealand Law Awards 2014 Meet the winners 42 | A good sport The World Anti-Doping Agency’s director general, David Howman, and the pursuit of fair and drug-free sport 46 | The art of law District Court judge Arthur Tompkins shares his passion for protecting art during wartime

REGULARS News analysis Deals round-up Legal insight: Law firm life under the microscope Appointments

DECEMBER 2014 | 1

EDITOR’S LETTER / 6.4

STOPPING TO SMELL THE ROSES Kathryn Crossley

“What’s next?”

Everyone is guilty of focusing on this question to some extent.

When a significant project is ticked off a to-do list, most of us will move on to the other waiting tasks without pausing for even a brief moment to enjoy that sense of accomplishment (and sometimes relief ). And the busier we become, the harder it is to notice and appreciate the many small – and sometimes big – wins that we have at work.

This can be particularly difficult for lawyers. When one matter ends, there are always plenty more matters vying for attention, often with deadlines looming so closely that they immediately force the previous matter from mind.

It is rare that people will stop to enjoy their successes, and the occasions when we are able to collectively celebrate our accomplishments are rarer still.

The 10th annual New Zealand Law Awards were a timely opportunity to celebrate the legal fraternity’s many, many achievements. Held at the Pullman Hotel in Auckland on 6 November, the Awards recognised excellence across the profession, from young practitioners to managing partners, from rural and suburban firms to in-house teams, boutique firms and large practices. Congratulations to all the winners and finalists in this year’s Awards. Meet the winners from page 30.

No doubt many firms and lawyers are already working on initiatives and matters that could place them in contention for next year’s New Zealand Law Awards, but with the end of the year fast approaching, now is the perfect time to stop, take a deep breath and smell those proverbial roses.

COPY & FEATURES EDITOR Kathryn Crossley CONTRIBUTORS Sarah Megginson, Sophie Schroder, Mark Divine, Karen Gately PRODUCTION EDITORS Roslyn Meredith, Moira Daniels

ART & PRODUCTION DESIGN MANAGER Daniel Williams DESIGNER Kat Vargas, Marla Morelos, Lea Valenzuela

SALES & MARKETING SALES MANAGER Paul Ferris MARKETING EXECUTIVE Alex Carr TRAFFIC MANAGER Abby Cayanan

CORPORATE CHIEF EXECUTIVE OFFICER Mike Shipley CHIEF OPERATING OFFICER George Walmsley MANAGING DIRECTOR Justin Kennedy CHIEF INFORMATION OFFICER Colin Chan HR MANAGER Julia Bookallil Editorial enquiries Kathryn Crossley tel: +61 2 8437 4702 kathryn.crossley@keymedia.com.au Advertising enquiries Paul Ferris tel: +61 2 8437 4703 paul.ferris@keymedia.com.au Subscriptions subscriptions@keymedia.com.au Key Media keymedia.com.au Key Media Pty Ltd, regional head office, Level 10, 1–9 Chandos St, St Leonards, NSW 2065, Australia tel: +61 2 8437 4700 fax: +61 2 9439 4599 Offices in Auckland, Toronto, Denver, Manila australasianlawyer.com.au Copyright is reserved throughout. No part of this publication can be reproduced in whole or part without the express permission of the editor. Contributions are invited, but copies of work should be kept, as NZ Lawyer magazine can accept no responsibility for loss

ISSN 1175-5148 (Print) ISSN 1179-0830 (Online)

Kathryn Crossley, editor, NZ Lawyer

CONNECT

Contact the editor:

kathryn.crossley@keymedia.com.au

2 | DECEMBER 2014

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NEWS / ANALYSIS

Post-vote What the election result means for New Zealand’s legal market

When discussing an election year, law firms typically comment on the slowdown in work ahead of the poll.

Therefore, it is always a relief for lawyers when the votes have been counted and the results announced.

Clients who have been taking a wait-and-see approach during the campaign begin to execute their plans, and the workflows increase for firms.

This election was no different for New Zealand’s firms, and work is starting to approach pre-election levels. “Things often go a little bit quiet before an election, because the country is focused on the election. Nothing is happening in terms of legislation and nobody is quite sure what those changes might be, because we’re not sure who the government is going to be,” says Buddle Findlay national chairman Peter Chemis. “While this election was reasonably predictable, it did go a little quiet, and now you’re seeing a little bit of a pick-up after the election.”

In the view of Chapman Tripp managing partner Andrew Poole, the timing of the election has also been helpful to firms. “We were lucky to have a government that formed quickly, and enough time between the election and Christmas for our corporate clients to decide that there was plenty of time to get things done,” he says.

4 | DECEMBER 2014

The election result has been well received by the market, and business confidence has increased.

“One of the best immediate indicators of sentiment was the share market … from the moment the election result was announced the market lifted,” Russell McVeagh CEO Gary McDiarmid observes.

WHAT’S ON THE AGENDA? “This government, now that it’s got another three years, will get on and do things,” says Chemis.

“When it does things, like regulate, that’s work for lawyers.”

According to Paul East QC, former New Zealand attorney-general and now a public law consultant at Bell Gully, firms and businesses can expect a range of positive initiatives from the government.

“There will continue to be an emphasis on business-friendly policies, particularly with regard to employment law and bureaucratic regulations,” he predicts.

Most firms interviewed by NZ Lawyer flagged changes to the Resource Management Act as one of the most significant reforms expected during the government’s term in office. Lawyers anticipate that this will free up the supply of land in the major cities for housing development, with likely flow-on effects for resource management,

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construction and property teams. East says: “We can look forward to planning changes and more competi­ tion in the house-building sector to make up for the considerable shortfall we face at the moment.”

Changes to social housing are also on the cards.

The government is looking for more efficient provision of social housing and greater private sector involvement, and foreign investors are expressing significant interest in assisting with New Zealand’s social housing needs.

“We’re likely to see sales of social housing by Housing New Zealand, which has about a $20bn balance sheet,” Bell Gully chairman Roger Partridge predicts. “I don’t think we’re likely to see further SOE privatisations, but we will see sales of assets by Crown entities to get better and more efficient use out of their capital,” he adds.

Infrastructure programs, particularly significant roads projects, are also anticipated.

If the government finalises free trade agreements with South Korea and India during the term, the agreements are likely to generate more export activity and make New Zealand an increasingly popular destination for foreign investment.

East also expects that a range of tax cuts will come through, with positive implications for the economy, and for New Zealand’s law firms. “Our economy has recovered remarkably well since the GFC,” he says, “and New Zealanders can look forward to a program of tax cuts which will be spread over several years and imple­ men­­ted well before the next election.

This should be an added spur to economic activity.”

“There’s a combination of change that will be pro growth … and there will be the status quo in areas which might have acted as something of a handbrake on growth” Roger Partridge, Bell Gully TWIN BENEFITS Partridge believes the result holds twin benefits for firms. While the government’s legislative agenda is likely to drive economic growth, and as a result work for the country’s law firms, the fact that government was re-elected means a number of business-friendly reforms won’t be repealed, as may have been the case had the Opposition formed the government.

“One of the features of the election is that we won’t see some reforms unwound, as might have happened if there’d been a change in government,” he says. “We won’t see a roll-back of the labour market reforms which the National-led government has put in place – I think that’s good for business. We won’t see the power policy, which was going to effectively nationalise the acquisition of electricity, which the Labour and Greens parties were going to introduce and which would have been valuedestructive for the electricity generation sector.”

“I think there’s a combination of change that will be pro growth, particularly in the resources and housing area, and there will be the status quo in areas which might have acted as something of a handbrake on growth,” he says.

“I think the outlook for the New Zealand economy is better than at any time in the last seven or eight years. Growth prospects are strong, we’ve got stable government, [and] confidence levels remain high.” NZL

DECEMBER 2014 | 5

NEWS / DEALS

Deals round-up A$703m Expedia acquisition of Wotif.com The Expedia group’s purchase of Wotif involves the acquisition of 100% of the fully-diluted share capital of Wotif by a scheme of arrangement.

The transaction received approval from the ACCC in October, and the New Zealand Commerce Commission in early November.

The deal between the online travel booking giants saw an international team of advisors assembled. Clayton Utz advised Wotif, while King & Wood Mallesons and Wachtell Lipton Rosen Katz advised Expedia. Chapman Tripp, led by Neil Anderson and Lucy Hare, advised on the New Zealand aspects of the transaction.

The deal will assist Expedia’s Asia Pacific expansion plans, and follows on from last year’s US$632m acquisition of a majority stake in German site Trivago.

6 | DECEMBER 2014

Value (NZ$)

Adviser

Client

Lead lawyer(s)

Additional firms involved

GIC Real Estate joint venture investment with Goodman Property Trust in Auckland’s Viaduct Quarter

$313m

Bell Gully

GIC Real Estate Pte Limited

Andrew Petersen, James Gibson, Amon Nunns, David Chisnall

Russell McVeagh, Harmos Horton Lusk, EY

Crouching Tiger Hidden Dragon 2 production financing

$80m

Bell Gully

East West Bank

Rachel Paris

Deborah Fox Law, Loeb and Loeb, Greenberg Traurig

Orion Health Group Limited IPO on NZX and ASX

Undisclosed

Bell Gully

Orion Corporation Limited

Haydn Wong, David Flacks

Herbert Smith Freehills

Alliance Group Refinance

Undisclosed

Buddle Findlay

Alliance Group Limited

Michael Dineen, Vicky Kim

Russell McVeagh

Dorchester Pacific acquisition facility and receivables financing facility for Turners Group NZ takeover

Undisclosed

Buddle Findlay

Bank of New Zealand Paul Farrugia, Evelyn Jones

Chapman Tripp

The Power Company Limited acquisition financing

Undisclosed

Buddle Findlay

ANZ Bank New Zealand Limited

AWS Legal

Expedia acquisition of Wotif. com

A$703m

Chapman Expedia Inc Tripp

Neil Anderson, Clayton Utz, Lucy Hare King & Wood Mallesons, Wachtell Lipton Rosen Katz

GIC Real Estate proposed joint venture with Scentre Group

$1bn

Chapman GIC Real Estate Tripp

Matthew Carroll, John Strowger

Queenstown Lakes District Council wastewater treatment plant and ‘3 waters’ projects

Undisclosed

Chapman Queenstown Lakes Tripp District Council

Brian Clayton, Hamish Bolland, Aaron Adams

Universal Robina acquisition of Griffith Foods

Undisclosed

Chapman The banks Tripp

Ross Pennington, Callum Harper

Mayne Wetherell

Kerry Freight Services (Australia) acquisition of 51% of shares in Lead Logistics

Confidential

DLA Phillips Fox

Kerry Freight Services (Australia) Limited

Rachel Taylor, Brian Bray

Quigg Partners, King & Wood Mallesons

New Zealand New Milk share issue to Aspen Pharmacare

Confidential

DLA Phillips Fox

New Zealand New Milk Limited

Martin Thomson

KPMG

Transaction

Paul Farrugia, Evelyn Jones

Russell McVeagh

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MAKE SURE YOUR FIRM’S WORK IS RECOGNISED To ensure your firm and its lawyers get the recognition they deserve for their fantastic work, send all your deal details to kathryn.crossley@keymedia.com.au

Transaction

Value (NZ$)

Adviser

Client

Lead lawyer(s)

Additional firms involved

$170m Go Bus Group sale to Ngai Tahu Holdings Corporation and Tainui Group Holdings

Pressure Technologies acquisition of the business and assets of Greenlane Biogas Group

$25m

DLA Phillips Fox

Pressure Technologies

Reuben Woods, Martin Wiseman, Laura Scampion

DLA Piper, Blake Cassels & Graydon LLP, Hesketh Henry, PwC

Go Bus Group sale to Ngai Tahu Holdings Corporation and Tainui Group Holdings

$170m

Minter Ellison Rudd Watts

Next Capital Pty Limited

Silvana Schenone

Chapman Tripp

Pan Pac Forest Products purchase of assets from Southern Cross Forest Products (in Receivership)

Undisclosed

Minter Ellison Rudd Watts

Pan Pac Forest Products Limited

Paul Foley

Chapman Tripp

Prime Panels group of companies sale

Undisclosed

Minter Ellison Rudd Watts

Shareholders of each of the companies in the Prime Panels Group: Prime Panels New Zealand Limited, Arno Limited and Dezignatek Limited

Neil Millar

Bell Gully

Veritas Holdings Limited purchase of Nosh Food Market

Undisclosed

Minter Ellison Rudd Watts

Nosh Food Market

Mark Forman

McGrath Nicol, Harmos Horton Lusk

Harmoney Limited establishment and licensing

N/A

Simpson Grierson

Harmoney Limited

Andrew Harkness, Simon Vannini

Milford Asset Management sale of 50% stake in Complectus to Bath Street Capital

Undisclosed

Simpson Grierson

Milford Asset Management Limited

Michael Pollard, James Hawes

Russell McVeagh

Subscription for shares in TR Group Limited

N/A

Simpson Grierson

Champ Ventures

Michael Pollard, James Hawes

Chapman Tripp

Vocus Communications scrip takeover offer for FX Networks

$115.8m

Simpson Grierson

Vocus Communications Limited

Michael Pollard, James Hawes

Bell Gully

Maori funds Ngai Tahu Holdings Corporation and Tainui Group Holdings have acquired one of New Zealand’s largest public transport operators from Australian firm Next Capital for $170m. NTHC holds two-thirds of the investment and TGH has the remaining stake.

Chapman Tripp, led by partner John Strowger and included senior associate Te Aopare Dewes advised the iwi; Minter Ellison Rudd Watts, led by Silvana Schenone, advised Next Capital.

NTHC and TGH entered into a co-investment agreement in 2007. The investors acquired dairy equipment manufacturer Waikato Milking Systems with Pioneer Capital in February, and were the under bidders for Transpacific Industries’ waste management operations, which was purchased by Beijing Capital Group in March for close to $1bn.

DECEMBER 2014 | 7

LEGAL INSIGHT

LAW FIRM LIFE UNDER THE MICROSCOPE

Our Employer of Choice survey reveals what lawyers think about their firms HOW SATISFIED ARE YOU WITH YOUR CURRENT REMUNERATION?

‘MY WORK PROVIDES SUFFICIENT OPPORTUNITIES FOR TRAINING AND PROFESSIONAL DEVELOPMENT’

Very dissatisfied

6.4%

Strongly disagree

4.7%

Dissatisfied

13.7%

Disagree

7.9%

Neutral

24.8%

Neutral

14.1%

Satisfied

34.0%

Agree

26.9%

Very satisfied

21.2%

Strongly agree

46.4%

0

10

15

20

25

30

35

0

10

20

30

‘MY FIRM PROVIDES ME WITH SUFFICIENT OPPORTUNITIES TO DO INTERESTING AND CHALLENGING WORK’

‘MY FIRM GIVES ME ACCESS TO THE TECHNOLOGY I NEED TO DO MY WORK EFFECTIVELY’

Strongly disagree

3.7%

Strongly disagree

4.0%

Disagree

5.6%

Disagree

7.0%

Neutral

12.7%

Neutral

12.6%

Agree

29.7%

Agree

32.0%

Strongly agree

48.4%

Strongly agree

44.5%

0

8 | DECEMBER 2014

5

10

20

30

40

50

0

10

20

30

40

50

40

50

NZLAWYERMAGAZINE.CO.NZ

‘MY FIRM HAS A STRONG WORK CULTURE AND A HIGH LEVEL OF ENGAGEMENT’

‘MY FIRM HELPS ME TO ACHIEVE A WORK-LIFE BALANCE’

Strongly disagree

5.1%

Strongly disagree

5.5%

Disagree

7.8%

Disagree

7.9%

Neutral

12.6%

Neutral

18.2%

Agree

28.7%

Agree

30.1%

Strongly agree

45.8%

Strongly agree

38.2%

0

10

20

30

40

0

50

HOW SATISFIED ARE YOU WITH YOUR EMPLOYER’S SUPPORT FOR YOUR WELLBEING? Very dissatisfied

Dissatisfied

10

20

30

40

50

HOW LIKELY ARE YOU TO CHANGE YOUR EMPLOYER DURING THE NEXT 12 MONTHS?

6.0%

Unlikely

72.6%

Likely

12.8%

Not sure

14.7%

7.7%

Neutral

15.3%

Satisfied

27.6%

Very satisfied

43.4%

0

20

40

60

80

ANNUAL LEAVE TAKEN IN THE LAST 12 MONTHS

0

10

20

30

40

50

AVERAGE WORKING WEEK

40h

50h

60h

70h

>70h

40 hours or less

50 hours or less

60 hours or less

70 hours or less

More than 70 hours

None

Less than 1 week

1–2 weeks

2–3 weeks

3–4 weeks

More than 4 weeks

Source: Employer of Choice Survey (2014)

DECEMBER 2014 | 9

NEWS / APPOINTMENTS

Appointments LATERAL PARTNER APPOINTMENTS NAME Jane Parker

PRACTICE AREA

LEAVING

Corporate

GOING TO

Chapman Tripp

Minter Ellison Rudd Watts

PARTNER PROMOTIONS

Tony Ryall Simpson Grierson

 Former Health Minister joins law firm Simpson Grierson has announced that former Health Minister Tony Ryall will be joining the firm as head of the public policy practice, starting at the end of January next year.

In the new role, Ryall will be providing strategic and operational leadership to the firm’s public policy practice nationally and internationally.

During his distinguished parliamentary career, Ryall has held a number of portfolios including Minister of Health, Minister of State Owned Enterprises, Minister of State Services, Minister of Justice, Minister in charge of Housing New Zealand Limited, Minister of Local Government, and Minister in Charge of the Audit Department.

“The interface between the public and private sectors in New Zealand is increasingly important, and I am looking forward to working at that interface with [the firm] and its clients,” Ryall said of his new role.

10 | DECEMBER 2014

FIRM

LAWYERS PROMOTED

Chapman Tripp

Rachel Dunne, David Patterson

Russell McVeagh

Allison Arthur-Young, Chris Curran

SENIOR ASSOCIATE APPOINTMENTS FIRM

LAWYERS PROMOTED

DLA Phillips Fox

Charles McGuinness, Richard Tosh

Minter Ellison Rudd Watts

Sophie Carruthers, Tom Logan, Alexandra Parker, Helen Thomson, Michael Thomson

Young Hunter

Karen Welsford

OTHER NAME

FIRM/COMPANY

TITLE

Heath Brunton

Glaister Ennor

Consultant

Simon Cogan

Anderson Creagh Lai

Director

Aasha Foley

James & Wells

Solicitor

Ian Gault

Bell Gully

Deputy chairman

Chris Gordon

Bell Gully

Chairman

James McDougall

DAC Beachcroft

Solicitor

Stephanie Melbourne

James & Wells

Solicitor

Daphne Missirlis

James & Wells

Solicitor

Jack Rao

Chapman Tripp

Consultant

Tony Ryall

Simpson Grierson

Head of the Public Policy Practice

Julia Whitehead

DAC Beachcroft

Solicitor

Murray Whyte

Duncan Cotterill

Associate

NZLAWYERMAGAZINE.CO.NZ

Allison Arthur-Young Russell McVeagh

Chris Curran Russell McVeagh

 Russell McVeagh names new partners Russell McVeagh has announced the appointment of two new partners. Senior associates Allison Arthur-Young and Chris Curran were admitted to the partnership on 1 December.

Arthur-Young has been a member of the firm’s Auckland environment, planning and natural resources group for close to nine years. She is known for her expertise in resource management and planning matters, which is informed by her earlier work in public law and local government.

Curran has been with the firm since 2011 and is a member of the Wellington litigation group, where he undertakes both commercial and public litigation. Prior to joining the firm, he spent seven years with the Crown Law Office in Wellington.

Chris Gordon Bell Gully

 Bell Gully names new chairman and deputy chair Bell Gully has elected partner Chris Gordon as its new chairman, effective 1 January 2015.

With over 27 years’ legal experience in both New Zealand and the US, Gordon has been a corporate and commercial partner with the firm since 1999.

Prior to his appointment, he had been the Wellington office chair for the past seven years, and co-head of the firm’s energy and resources, and infrastructure groups.

Gordon will take the reins from colleague Roger Partridge, who is retiring from the position of chairman after seven years in the role. Partridge will stay on with the firm in its litigation practice.

Auckland-based litigation partner Ian Gault has been named as the firm’s next deputy chairman. Based in Auckland, Gault’s roles within the firm have included litigation department leader and membership of the firm’s board.

Ellis Gould Lawyers is pleased to announce Daniel Sadlier’s promotion to Associate with the firm.

Daniel is an environmental and resource management law specialist with extensive experience advising both private and public sector clients on a wide range issues. Daniel joined Ellis Gould’s resource management team in April this year, after nearly three years as an in-house lawyer at the Auckland Council.

Prior to that, Daniel was a senior solicitor in the resource management team of a large corporate law firm. He is a member of the Auckland District Law Society’s Environment and Resource Management Committee, and is an associate member of the New Zealand Planning Institute. His promotion reflects the strong contribution Daniel has made to the firm this year.

NZL_6.4_Ellis Gould_panel ad.indd 1

Ian Gault Bell Gully

Ellis Gould Lawyers is pleased to announce Jaimee Kinzett’s promotion to Associate with the firm.

Jaimee is a commercial property specialist with experience advising both corporate and private clients on all aspects of leasing, acquisition, disposal and management of commercial property, business acquisitions and sales, subdivisions, financing and various company and contract matters.

Jaimee has been with Ellis Gould for over 7 years and Jaimee’s promotion is in recognition of her strong contribution to the firm and her skill and ability to deliver the best outcomes for our clients.

25/11/2014 12:47:10 | 11 DECEMBER 2014PM

PROFILE / JOHN BLAIR

Taking flight Air New Zealand general counsel John Blair talks to Kathryn Crossley about representing a Kiwi icon in a dynamic industry 12 | DECEMBER 2014

NZLAWYERMAGAZINE.CO.NZ

It was an overseas adventure that eventually led John Blair to his role as general counsel at Air New Zealand, a position he has held for 18 years. Having started his legal career in private practice in Christchurch, Blair headed to Europe for two years’ overseas experience, but as can often happen with an OE, he ended up staying for 15 and worked in London, Geneva and Monaco.

His transition from private practice to in-house happened serendipitously. Having travelled around Europe and worked in pubs, Blair was then employed as an accounts clerk for the recruitment agency Drake. When Drake’s CEO heard about his legal background, Blair soon found himself working in-house. “It wasn’t a planned career change at the time; it just sort of happened that way,” he recalls.

“But that move opened up amazing opportunities.”

From there, he landed another in-house role at the major UK motor vehicle group Tozer Kemsley Milbourn, which then led to a position with BTR Group, where for more than six years he ran the legal team and undertook many multinational M&A transactions and big-ticket litigation work.

“Then as happens with Antipodeans, it was time to come home,” he says. “But the challenge was what would I come back to? The opportunities in New Zealand to do something that matched BTR seemed non-existent from over there.”

By chance, Air New Zealand was looking for a general counsel and Blair is still with the airline almost two decades later. “It sounds like a long time … but the industry and the business change so constantly. You never feel as if you’re getting stale, and everything is a new challenge.”

A BROAD PORTFOLIO For Blair, the fact that there’s no typical day is one of the most rewarding aspects of his role. During his time with the company, Blair has worked on a range of major matters, including Air New Zealand’s alliance with Virgin Australia and earlier attempts to establish an alliance with Qantas. “Those are interesting projects because you just get immersed

“The industry and the business change so constantly. You never feel as if you’re getting stale, and everything is a new challenge” in airline strategy and also need to understand a lot of economics, which to my surprise I found interesting,” he says.

In the early 2000s, Air New Zealand’s acquisition of Ansett and the Australian airline’s subsequent collapse generated a considerable amount of work for Blair and his team. “It took a number of years after 2001 until all of that really died down in terms of the focus it needed. It was an interesting learning experience in all sorts of ways, and you learn a bit about strategy, a bit about board dynamics and governance, and you learn how people respond in a crisis. A lot really occurred in a short space of time during that period.”

Since 2006, the air cargo cartel inquiry has been a significant source of work, with Air New Zealand responding to investigations and lawsuits in the US, Europe, Australia and at home. Blair lists Air New Zealand’s recent successful defences of the class action and the related ACCC prosecution in the Federal Court of Australia as one of the highlights of his career, alongside being exonerated by the European Commission and the US Department of Justice on the same issues.

In addition to running the legal team, Blair is responsible for Air New Zealand’s insurance program and property portfolio, and also manages board and stock exchange issues as the company secretary.

Of course, there are challenges with any role, and keeping up with the workload and staying up-to-date with changes in the industry are his

DECEMBER 2014 | 13

PROFILE / JOHN BLAIR

biggest hurdles. “It’s an incredibly dynamic industry, which makes it interesting, but it does make it difficult sometimes to keep up with everything that’s going on.”

Blair says building a strong legal team – currently numbering eight lawyers – and seeing them develop a passion for the industry has been one of the most satisfying parts of his role. “It’s a very complex industry and you see the level of enthusiasm and engagement build as people get more and more into it, and that’s very rewarding.”

KEEPING IT IN-HOUSE Like most other in-house teams, over the years Blair’s team has reduced the amount of work it sends to external firms. “That’s been a factor of the growth of the in-house team – not just numerically, but as we’ve recruited we’ve continually been able to recruit more experienced lawyers. We’ve got a very high level of capability and experience in the team, and that’s enabled us to do far more of the work in-house that we used to brief out in New Zealand,” he says.

However, in some matters, such as finance transactions for aircraft, firms are usually briefed.

“Most of the aircraft financing and leasing work

KNOWLEDGE SHARING At a conference in Montreal last year, Blair found himself thinking about the teaching of aviation law. Although the host, McGill University, is recognised as the world’s leading educational institution for aviation law, “if you look at the aviation world commercially, you’ll see that the growth in aviation is in the Asia-Pacific region”, he says. “If you’ve got the Asia-Pacific region driving growth, that’s going to be where the need for aviation lawyers is going to grow.”

On his return to New Zealand, Blair pitched the idea of an aviation law course to the University of Auckland. They had hoped for 30–40 enrolments for the first intake, and ended up with 80 registrations.

“It’s an area of law that’s quite different from most other areas of law. It’s a combination of contract, regulation, competition, international treaties and conflict of laws; all sorts of things roll up into aviation law, so it’s quite unique,” he says.

Blair explains that setting up the course was not about addressing a shortage of aviation lawyers in New Zealand. “If you look at the number of jobs in aviation or related to aviation, there are thousands of them, and a baseline course in aviation law I think is helpful to so many roles in the industry.”

Following on from the success of the university course, Air New Zealand is looking to establish an internal equivalent within its training school to assist a range of employees: from members of the strategy team, to analysts and airport staff. Blair believes that some knowledge of aviation law will help provide greater context to activities like the processing of international versus domestic passengers, or border screening. “A basic understanding of the aviation law environment I think adds to people’s understanding of why they are doing what they’re doing.”

14 | DECEMBER 2014

is done in-house between our Legal and Group Finance teams, but when you’ve got a $100m plus transaction, the banks often want to see an external law firm signing off, particularly for the financing,” Blair explains.

“Litigation is something we do brief out; happily we don’t have too much of it. That’s partly an expertise issue but also due to time and resources and familiarity. I think if you’re not a specialised litigator then you risk wasting time and you could do something more productive commercially.”

Overseas work in jurisdictions such as Australia, America, the UK and increasingly Asia makes up the majority of external legal work for the airline.

“We’ll deal with a lot of commercial issues in all those jurisdictions ourselves, but sometimes we need subject matter experts to go to externally to get specific advice on local law.”

Working with overseas lawyers and learning about the laws in different jurisdictions is one of the many things Blair enjoys about his role. “I’ve learned a lot more about US law over the past 10 years than I ever expected to know, and that’s been an interesting educational process,” he says. “It’s instructive to compare the way different jurisdictions apply fundamentally similar laws, and to observe different practices or different styles in law firms.”

Having briefed numerous firms during his career, Blair says external advisers need to be mindful of not only the legal but also the commercial implications of an issue. “I get a lot of law firms telling me from time to time that they are very commercial, but when you scratch the surface of that you tend to find that’s probably not as commercial as they believe, or what you might require of somebody working in-house. In my view, where you’ve got a capable in-house team, they’re the ones who are able to make those quasi-legal commercial calls, and more often with specific expert legal advice you just want the legal advice and you make the commercial call,” he says.

“Now that’s not true of all businesses. Many businesses will look to their legal advisers for that combination of commercial sense and legal sense, and what the risk mitigation approaches might be.

I think that where you’ve got a capable legal team that is very familiar with the business, they’re just better positioned to make the commercial calls. I think it’s about being able to cut to the chase and deal with the key issues quickly and pragmatically and soundly.” NZL

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What has changed?

FEATURE / LITIGATION AND DISPUTE RESOLUTION

Litigation and dispute resolution:

Class actions the new frontier?

16 | DECEMBER 2014

NZLAWYERMAGAZINE.CO.NZ

As long-stop limitations prompt a wind-down of the leaky homes crisis – from a legal perspective at least – litigators are gearing up for a season of construction disputes and class action claims.

Sarah Megginson reports The litigation and dispute resolution practice area has enjoyed robust activity in recent years, and while that level of activity is predicted to continue, the cases that keep litigators toiling away are substantially changing, according to Tim Rainey, partner at Rainey Law. After dominating New Zealand’s litigation and dispute resolution scene for more than a decade, the ‘leaky homes crisis’ is finally beginning to wane – in a legal sense at least.

“We’ve maintained quite a lot of work in the leaky building area; however, that work is very much tailing off and it’s happening quite quickly,” explains Rainey.

“The number of claims coming through is diminishing a lot; it’s become an increasingly small part of our practice over the last 12 months.”

In its place, a number of large cases or test cases resulting from finance company collapses, and a number of Christchurch earthquake property or insurance problems, are now reaching final resolution or the higher appellate stages in the courts, says Gary Hughes, partner at Wilson Harle.

“Reflecting the pick-up in economic activity last year, we have seen a return of matters reflecting disputes over ordinary commercial activity: joint venture relationship breakdowns, RFP/tendering and procurement disputes, leasing problems, infrastructure and construction contracts,” says Hughes, whose firm Wilson Harle received the Litigation and Dispute Resolution Specialist Firm of the Year Award at the 2014 NZ Law Awards.

“Perhaps reflecting the intergenerational change occurring in many traditional New Zealand familyowned businesses, we have also seen an upsurge in trust disputes and governance or control contests, often with significant assets at stake.”

LEAKY HOMES CRISIS WINDS DOWN While leaky home cases may be waning for the legal industry, for those New Zealanders whose dwellings were constructed in the late 1990s and early 2000s the crisis may very well continue.

Homeowners of the tens of thousands of slowly decaying timber-framed buildings built between 1992 and 2005 – shoddily constructed, partly as a result of lax building regulations, inappropriate cladding materials and the government’s decision to drop the apprentice training system for builders – are fast approaching their time limit for making a claim.

Thousands of buildings were, and many more remain, without sufficient weatherproofing, which has allowed decay and mould to proliferate, and in extreme cases has made the buildings structurally unsound. A PricewaterhouseCoopers report has estima­ted that the crisis impacted an estimated 42,000 buildings at a cost of $11.3bn, although some building experts predict that up to 89,000 homes were affected, costing $23bn.

The Building Act 1991 was replaced by the Building Act 2004, which introduced a licensing scheme for building designers, builders and related trades. At that time the government imposed a 10-year time limit on making a claim, which means those homeowners who haven’t yet come forward are virtually out of time.

“Issues continue to emerge; however, the 10-year long-stop limitation for building limitations means that claimants who are only recently seeing problems are out of time. So while the problems are continuing to be discovered, the traditional claims are becoming harder to process,” says Dan Parker, partner, Parker & Associates Barrister & Solicitors in Wellington.

In a landmark decision, the High Court ruled in March 2014 that claims against cladding suppliers

THE LEAKY HOMES CRISIS

42,000 Affected at least 42,000 households

$11bn Claims are valued at $11bn plus

$1.5bn Primarily impacted homes and apartments but also dozens of schools at an estimated cost of $1.5bn

DECEMBER 2014 | 17

FEATURE / LITIGATION AND DISPUTE RESOLUTION

2015: TRENDS TO WATCH INVESTIGATIONS AND ENFORCEMENT “The Commerce Commission has introduced a big new suite of consumer-focused legislation to do with responsible lending and unfair contract terms, introducing some major changes to the Fair Trading Act. Some of them were earlier in the year, some are not yet enforced and will come into effect early next year, so we’ll start to see more investigations and more enforcement and prosecution.”

– Victoria Heine, partner, Chapman Tripp

INCREASED CONSTRUCTION DISPUTES “We’re going to continue to see, especially out of Christchurch, a strong focus on construction disputes. Any time you have the sort of construction boom we’re having there at the present time, you’re going to get more disputes and more litigation arriving out of that.

I think we’re also going to see more recognition of the specialist litigation practice as an acceptable competition to – and complementary to – the barristers chambers.”

– Tim Rainey, partner, Rainey Law

INTERNATIONAL FOCUS “Many disputes increasingly have an international dimension – of course, frequently Australasian but more and more also reflecting New Zealand’s economic ties with China and the rest of Asia …

Particular sectors that we expect to remain busy include technology, healthcare, financial services regulation, building, energy and infrastructure cases.”

– Gary Hughes, partner, Wilson Harle

CLASS ACTION CLAIMS “We’ve got a lot on the go in our own office, with much of our building litigation … moving towards hearings and mediations to get those resolved. We’re working on the class action Kiwifruit Claim, and another similar class action in the building space. The rebuild in Christchurch will also continue to be busy, with a range of interesting things coming out of that.”

– Dan Parker, partner, Parker & Associates

Karen Welsford has rejoined Young Hunter’s litigation team as a senior associate. Having initially joined Young Hunter in 2004 she rejoins the firm after four years at another Christchurch firm. The key area of Karen’s practice is insurance law and litigation. Karen is also involved in a wide range of civil and commercial litigation, insolvency litigation and debt recovery.

were not subject to the 10-year limitation on claims in the Building Acts. This leaves organisations like Carter Holt, a producer of plywood cladding sheets that contri­buted to the leaky homes crisis, open to claims.

“There have been some developments with the Holt decision regarding the design of cladding systems, as they’re not considered to be work covered by the 10-year long stop. That will have a broad impact, I predict, for other potential claimants who have had problems as a result of assisted failure. That as an area is going to be very interesting as it develops,” Parker adds.

“In terms of different trends we see emerging, an increasing number of claims [are being filed] against vendors of properties, for failing to disclose issues or for doing work that is alleged to have required permits that have not been acquired.”

CLASS ACTIONS COME TO THE FORE After seeing “very clear signs” that leaky building work was diminishing, Rainey says their practice has become increasingly involved in litigation arising out of the introduction of the Unit Titles Act. “Litigation has been increasing, in actual litigation work and advice work around it, which has been a significant growth area for us,” Rainey explains.

“General building and construction litigation work has also spun out of Christchurch, a growing practice area that we see continuing.”

But it’s the latest emerging trends in class actions that have piqued his interest, and Rainey says he has made “a couple of attempts at getting things together”.

KAREN WELSFORD Senior Associate Contact Karen: PO Box 929, Christchurch 8140,New Zealand Ph: +64 3 379 3880 DDI: +64 3 974 2020 Mob: +64 27 531 1795 E: kw@younghunter.co.nz Young Hunter House Level 2, 134 Victoria Street, Christchurch younghunter.co.nz

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“We found it difficult. We had one we were contemplating putting together in respect of one of the large finance companies that collapsed, and we had a funding arrangement with someone who was interested in funding it, which of course is half the battle,” Rainey says. “But then the regulator, the Financial Markets Authority, swooped in and filed some proceedings, which took the wind out of our sales. They got first dibs on any insurance money that would have been available.”

The most significant class action cases in New Zealand to date include Fair Play on Fees, which is launching cases against the big banks to recover up to $1bn in fees on behalf of customers, and The Kiwifruit Claim, based on conventional negligence principles and the Biosecurity Act. The latter alleges that Biosecurity NZ allowed a shipment of material into New Zealand in June 2009 which was the source of Psa, a bacteria that resulted in the death of millions of kiwifruit vines. The claim alleges that the Psa incursion caused at least $885m worth of losses for growers around the country.

“The Kiwifruit Claim is about to be launched and involves growers and post-harvest operators going up against the Crown essentially,” explains Parker, whose firm became involved in the case around four months ago. “The entry of that vine disease had a fairly significant effect on the gold and green kiwifruit industry in New Zealand. It manifested itself around 2010 and had a massive effect on kiwifruit growers and harvesters.”

The claim is being supported by a litigation funder, a practice that is “common in Australia and

widespread in the US, but reasonably new in New Zealand”, Parker observes.

The emergence of litigation funders, who play a vital role by providing funding to litigants who might not ordinarily be able to afford the costs, is a relatively new trend that commercial litigator Victoria Heine, partner at Chapman Tripp, believes we’ll see more of.

“We’re seeing the rise of litigation funders,” she says. “With the case against the four big banks around their fees, for example, that’s being funded by a litigation funder from Australia. So we’re seeing a lot of cases being brought on behalf of consumers that wouldn’t otherwise get off the ground.”

It represents such new territory that “we don’t have any rules for class actions in New Zealand”, Heine adds.

“The Rules Committee has been looking at putting some into place, but for now we just work under the existing High Court rules, which could no doubt be improved,” she says. “We’ll continue to see a lot of activity in that space.”

Hughes points to a 2013 Supreme Court ruling which clarified the requirements that a plaintiff disclose aspects of third party litigation funding to their opponents. “As litigation funding becomes more prevalent here, we expect more challenges to be brought around disclosure, security for costs, or potential abuse of process issues,” he says.

“We have worked on cases directly involving class action type issues and funded parties, and also as independent solicitors appointed by the High Court to ensure plaintiffs have access to high-quality independent or supervisory advice.” NZL

Head of Dispute Resolution

Baldwins invites applications from experienced litigation lawyers with 10 to 15 years’ experience to apply for this senior leadership position in the Dispute Resolution Department in our Auckland office. We are looking for a person with substantial litigation experience, preferably in the contentious aspects of intellectual property.

Baldwins is a leading New Zealand specialist intellectual property law and patent attorney practice. Our teams of successful and dynamic lawyers and patent attorneys combine technical and legal expertise to advise clients on management of their intellectual property portfolios.

We have a diverse range of clients from New Zealand start-ups to some of the country’s most successful companies, as well as multi-national corporations.

The successful candidate will have: • Litigation (including courtroom) experience in intellectual property law and commercial litigation • Demonstrated leadership ability • Experience in alternative dispute resolution such as mediation and arbitration • Excellent verbal and written communication skills • Strong organisational skills • A positive frame of mind and a drive for personal development

• A team player with the ability to work collaboratively with clients and other staff across the firm • Ability to develop client relationships and grow business • Client focussed with sound networking skills

Applications close on 28 November 2014. You must be eligible to work in New Zealand to apply for this role.

If you are interested, please email your CV, with copies of your academic transcripts, and a covering letter by email to:

This role has high career progression potential. We offer ongoing development and training opportunities, competitive remuneration and a positive and professional working environment.

Lee Callaghan HR Manager lee.callaghan@baldwins.com

DECEMBER 2014 | 19

PROFILE / MARIA DEW

NZ’s Mediator of the Year on the rise of the resolution In a Q&A with NZ Lawyer, the woman crowned LEADR Mediator of the Year reveals why she thinks there is a growing swell of Kiwi lawyers flocking to embrace mediation LEADR Mediator of the Year award-winner Maria Dew (Bankside Chambers) with Anna Quinn (LEADR)

About LEADR

Maria Dew was officially crowned the LEADR Mediator of the Year at the New Zealand Law Awards, held at Auckland’s Pullman Hotel on 6 November.

The expert in mediation, employment law and independent investigation is a barrister at Bankside Chambers, and has acted as counsel on a vast number of high-profile and notable cases.

Dew sat down for a Q&A with NZ Lawyer to discuss her award, and the trends and challenges that mediators in New Zealand face.

Q.Could you tell us a bit about your background and journey to becoming a mediator?

A.I came into mediation through employment law and saw how effective it can be for parties at the right time in the dispute. When I went out as a barrister I trained through the LEADR mediation program initially to hone my skills as a negotiator,

With a membership of 2,700 across New Zealand, Australia and the Asia-Pacific, LEADR is Australasia’s largest membership organisation for ADR practitioners.

LEADR promotes use of ADR and supports members with information and development.

LEADR began training New Zealand mediators in 1996, and LEADR training is internationally recognised by the Mediator Standards Board in Australia and the International Mediators Institute. LEADR has been accrediting mediators for over 15 years, and LEADR mediator accreditation is widely recognised in New Zealand and Australia. www.leadr.info

20 | DECEMBER 2014

but then became more interested in the role of mediator.

Q. How have you seen mediation in New Zealand change since you started out?

A.Lawyers have steadily become more comfort­able and skilled in the process. Clients also now have more awareness of mediation. My impression is that mediation is now more likely to be an option that clients want to use. This is driving lawyers to want to improve their own skills in mediation. In the last few years I have noted greater numbers of lawyers attending mediation conferences.

Q.Why do you think that mediation is a vital part of the judicial process?

A.I don’t see mediation being part of the judicial process. It is a separate consensual process that often sits alongside current legal proceedings between the parties. Mediation is simply another key option available to resolve a dispute before or during litigation.

Q.What are some of the challenges that mediators in New Zealand face?

A.I am restricting my answer to thoughts on the challenges for commercial mediators, which is where my experience is. I have over the years attended several overseas mediation confer­ences.

The discussion about challenges in mediation are the same for overseas mediators as they are here in New Zealand, including how do you offer parties the most effective mediation experience?

How do you retain your independence and neutrality? How to ensure that mediation is a recognised and credible profession. In attending these conferences I have become convinced that some of New Zealand’s more experienced commercial media­­tors absolutely have skills that match those of overseas mediators.

Q.What are a few future trends you foresee occurring in the disputes resolution space?

A.One of the key trends currently is the develop­ ment of government expertise in mediation. The Ministry of Business Innovation and Employment has recently announced that it is funding a twoyear project for an internal Dispute Resolution Centre of Excellence. The Centre will look broadly across all dispute resolution processes managed by government – courts, tribunals and mediation. I expect that this may well result in more use of mediation within dispute resolution processes designed by government. NZL

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PROFILE / MARK WEENINK

“There’s a real commitment here to creating a place that we all think is a sustainable model”

22 | DECEMBER 2014

NZLAWYERMAGAZINE.CO.NZ

The world at your doorstep Minter Ellison Rudd Watts’ managing partner Mark Weenink shares the keys to being a good communicator and the challenges and joys of leading an evolving firm, and offers an international perspective on New Zealand’s legal market “It’s been a good, fun place to work,” says Minter Ellison Rudd Watts managing partner Mark Weenink of his firm. “There’s a sense of excitement and buzz among our partners.”

It’s no wonder. This year the firm celebrated 30 years as a national law firm and 20 years with Minter Ellison. In that time the firm has acted on the first Maori settlement, advised on the floating of the Port of Tauranga, secured spots on all major bank panels, and created a managed funds business. “There’s a real commitment here to creating a place that we all think is a sustainable model,” Weenink says.

A NEW ZEALAND FIRM IN A GLOBAL CONTEXT In 1997 Weenink left his role as a senior associate at Bell Gully and headed to London, working with Clifford Chance and then McDermott Will & Emery, followed by two years in Sydney with Challenger Financial Services. After a decade abroad, he returned to New Zealand and joined Minter as managing partner.

“I think the thing that was quite interesting really from Minter’s point of view in terms of my experience was, having worked in New Zealand, UK and US firms, looking at the different cultures and structures that they all have in place, particularly as when I was at Clifford Chance and McDermott’s we had quite major mergers with foreign firms, both of which I was involved in,” he says, “I got to see how those different structures work and how the different cultures merge.”

In his view, New Zealand’s law firms have done a good job of selecting the best of foreign firms’ models and applying the strategies locally. “I think there’s a lot of best practice techniques, particularly developed among the UK firms, that are applied in New Zealand,” he says. “I think the really client-centric approach has really been led by a lot of UK law firms; they’ve started to remodel their service offering far more along client-demand lines, and a lot of those things I think have been adopted here quite well.”

While traditionally lawyers have documented deals and undertaken litigation work for clients,

DECEMBER 2014 | 23

PROFILE / MARK WEENINK

Weenink says there’s a range of other areas where lawyers have the skills but they haven’t traditionally provided a lot of support to clients. “I think New Zealand law firms are doing a pretty good job at starting to expand in some of those areas as well,” he observes.

Looking at their international counterparts, Minter Ellison Rudd Watts has adopted a number of alternative offerings for its clients. In the health and safety space, for example, the firm provides legal advice, but also helps clients to set up systems.

RESHAPING A FIRM For Weenink, one of the most enjoyable things about his role is when the strategies come together and the firm’s ambitious goals are met.

“We’ve had three distinct strategies since I’ve been managing partner, two years for each strategy … and we’ve managed to meet those goals.

There’s that sense of accomplishment about doing that.”

10-10-10 STRATEGY Weenink’s role as managing partner commenced towards the beginning of the GFC, and the first strategy he led the firm towards was its 10-10-10 goal, which aimed for three years of over 10% per annum revenue growth, 10% profit growth, and 10 clients over a million dollars’ worth of fees. “That was really about getting our base revenue figure up to a top-tier level,” Weenink explains.

In order to achieve this, the firm reshaped itself to better cater for the practice areas that were poised for growth – insolvency, restructurings, and litigation – and worked to improve its succession planning structure which saw the firm develop a younger partnership.

‘BE FAMOUS’ STRATEGY The following strategy focused on raising the profile of the firm, particularly in directory rankings. “We were under-represented in directory rankings, which was quite natural because a lot of our partners were quite new and young,” he recalls. “We went from I think one team in tier one to three quarters of our teams ranked as tier one over that phase.”

‘FOCUS AND DIFFERENTIATE’ STRATEGY “We’ve got the right partners on the bus in the right seats, we’ve got the right strategy in place, and it’s really about a culture of discipline and being as good as we can be at implementing the plans that we have in place,” Weenink says of the firm’s current strategy.

24 | DECEMBER 2014

Weenink isn’t the only partner at the firm who has worked overseas; about half of the partnership has spent time practising abroad, which he believes brings a broader legal and cultural experience to the firm. Having such an internationally experienced partnership also has other advantages. Given that half of the firm’s partners have worked in Magic Circle firms and have UK qualifications, outsourced work has become a growing area of business for Minter Ellison Rudd Watts, with the firm offering a 24-hour turnaround on work for UK firms.

UNDERSTANDING … AND BEING UNDERSTOOD Weenink’s emphasis on good communication in the firm likely stems partly from his time overseas.

“London is a huge melting pot of different cultures … I think it’s fantastic training not just in terms of the legal experience that you get but in terms of the way people work and the way people are successful in the way they communicate. Something that it really shows you is that everyone is different and they hear messages differently,” he says. “That’s not just a cultural thing; it’s a personality thing.”

The firm’s listen, hear, deliver mantra aims to raise employees’ awareness that much of the messages they hear are through their own filters. “There is a tendency for lawyers to start hearing a problem and start conceptualising what the answer is based on previous answers to similar problems. It gets in the way of hearing what the issue actually is, and how the client would like to address it and what the real pressure points are for them,” Weenink says of the importance of training the firm’s people in active listening and understanding.

Minter Ellison Rudd Watts has also sought to make its written communication clearer and more accessible to clients.

“Within the first 30 seconds of reading any communication from the firm, we need to set out the context, trigger, question and answer, and then really the rest of the communication is detail that the client may or may not want to dive into, but when they’re reading that they already know what the answer is and are not having to try and decipher it from the body of the text,” Weenink says of the firm’s approach, which is an adaptation of Barbara Minto’s pyramid principles of communication.

“That sounds very simple, but it’s extraordinary when you look at the communications that lawyers still send out where you can’t really figure out what is going on until two thirds of the way through.” NZL

NZLAWYERMAGAZINE.CO.NZ

MARK WEENINK ON …

THE CHALLENGES FACING NEW ZEALAND’S LEGAL INDUSTRY “It is a mature industry; there are real pressure points on it. The traditional profit margin of the big firms is in a constant challenge, and the slightly archaic way that a lot of firms have been run is not going to survive in this sort of marketplace. It’s a classic Porter mature market: there’s new entrants coming in, there’s growth of in-house counsel, there’s new technology coming in, clients are more mobile, there’s a whole stream of work which is very dependent on leading experts, but there is a growing level of work which is much more price dependent. There’s a lot of change in the industry, and that’s classic threat and opportunity stuff, particularly for us as a younger and what we think is a more nimble

partnership; that means that we can recognise those trends and hopefully get in front of those ones that we think are here to stay.”

STAYING A FULL-SERVICE FIRM “We’re a full-service firm and we’re very committed to that, but we want to be strong in all the areas that our clients want. We know that other firms are going into a super-boutique type model where there’s only certain very profitable areas that they want to specialise in.

We don’t want to do that; we want to be a long-term sustainable firm where whatever sort of economic cycle we face we have strength and depth in the areas that will be growing … But that means that outside those sorts of cycles, how are we doing things smarter and differently? … We’re challenging partners to think differently and not think that the way things have been done in the past is the way things are going to be in the future.”

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SPECIAL REPORT / WELLINGTON

Wellington City Report With the election over, lawyers in the capital reflect on 2014 and anticipate what the government’s reform agenda will mean for firms in the year ahead

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While Auckland has enjoyed a significant lift in work across most practice areas, and Christchurch firms have been preoccupied with the rebuild, Wellington’s lawyers have had a flatter, business-asusual year in 2014.

In part this has been due to the election, which brought with it the expected chilling effect on commercial activity. It’s always a relief for law firms, particularly those in capital cities, when an election is over, and the latest poll was no different for Wellington. But with coalition agreements now in place, the government has a sufficient majority to progress some reforms, which it may not have been able to do during the previous term, and for law firms the post-election stability and the government’s legislative agenda mean new work is on the horizon.

Lawyers in the capital are keeping an eye out for expected changes to employment laws, the Resource Management Act, social housing, and education reforms.

“The government is looking for better ways to deliver social services, so while you might not ordinarily think that means much for large corporate law firms, [the government] will be looking at different ways to procure those services, so ideas like social bonds and different forms of outcome-based contracts will be looked at, and ways for the government to procure capital projects; not the really big ones that justify the PPPs, but the smaller

“The fact that Wellington is the city where the political and regulatory decision-making occurs, that just drives a different dynamic from any other part of the country” Michael Hodge, Meredith Connell ones,” predicts Chapman Tripp managing partner Mark Reese. “I think that those will become a focus, and there will be opportunities there for people who are innovative and who are close to the right government agencies.”

Reese suggests that local government reform, similar to Auckland’s Super City amalgamation, may also be on the cards for Wellington. “There are a lot of people who think that will make a lot of sense, so that may also be on the government’s agenda,” he says.

THE YEAR IN REVIEW “It has been a continuation of the year before, which in turn was probably a continuation of the year before that,” says Bell Gully deputy chairman Chris Gordon of Wellington’s “slow climb out of the GFC doldrums”.

It hasn’t all been doom and gloom for the capital; firms reported a steady flow of work across a number

DECEMBER 2014 | 27

SPECIAL REPORT / WELLINGTON

of practice areas during the year, including a slight upturn in corporate activity, which was among the bright spots of 2014. Both commercial and regulatory litigation have likewise been standout areas for the year.

Infrastructure projects, particularly governmentdriven infrastructure projects, have been a big contributor of work, with the Transmission Gully PPP standing out as a highlight of the year, and it’s anticipated that more infrastructure projects and foreign investment in those initiatives will keep firms active in 2015. “I suspect that we will end up seeing more overseas investment coming into the country, not the least because there are some initiatives that the government will be working through, but also because now that the political situation has been confirmed … that will give a lot of people comfort,” says Russell McVeagh corporate partner Mei Fern Johnson.

“You will see a bit more investment from East Asia, and I suspect we will see some big infra­ structure being invested in; not just bought but also being improved and being constructed by

some of the foreign investors,” Johnson predicts.

Another big area at the moment is in relation to water, says Russell McVeagh public law and policy partner Tim Clarke. “The ownership of water, access to water, the pricing of water, irrigation – all of those things will drive policy and commercial responses,” he predicts. “The resource sector generally, not just in water but also in offshore upstream, for example, is a big area of growth and opportunity.”

Gordon likewise reports that Bell Gully has been acting for a couple of new international entrants to the New Zealand energy and resources market.

TURNING TO TECH Although government work is probably high on the list of features that set the Wellington market apart from the rest of New Zealand’s legal sector, the capital is hardly a one-client town. Several firms note that IT-sector clients are becoming increasingly active in the capital.

“We’re seeing Wellington, along with Christchurch, but probably more so Wellington, become a bit of a centre of excellence for IT, including media and

A DIFFERENT DYNAMIC For years Wellington firms have witnessed the exodus of corporate head offices to Auckland, frequently taking corporate, M&A, equity market, and debt transaction work with them, and have long grappled with questions of scale and offering.

Some firms have adopted a smaller and more focused approach to the market, but there are benefits to going against the flow. “We have deliberately tried to maintain a breadth of resource in Wellington so that we can do things from Wellington that our competitors can’t,” says Mark Reese of Chapman Tripp’s Wellington offering. The approach appears to have yielded some good results, with the firm acting on the Z Energy float and the ikeGPS IPO completely out of Wellington this year.

Despite the downturn in work during election seasons, lawyers say working in the capital has its advantages.

“The Wellington-based government makes up about three quarters of our government practice, and when you have that flowing into an office, despite the likes of the PPP projects and other infrastructure projects, you do get a steady flow of government-related work, inevitably in good times and in bad,” says Bell Gully's Chris Gordon. “I think whilst the Auckland market would enjoy some pretty significant highs when the private sector is positive, equally when it isn’t so

28 | DECEMBER 2014

positive you get some pretty big lows; you get some bigger peaks and troughs than you do in Wellington.”

Although some firms may see Wellington as a more challenging market, others see only opportunity. Meredith Connell opened its Wellington office in July 2014, and partner Michael Hodge says the physical presence has already opened up new possibilities for the firm.

“Growth and opportunity are very much a part of the mantra for us in opening that office, but equally part of that is solidifying and entrenching, if you like, existing client relationships,” he says. “The fact that Wellington is the city where the political and regulatory decision-making occurs, that just drives a different dynamic from any other part of the country, and for a firm such as ours it’s really essential to be a part of that,” Hodge says.

For Hodge, the Wellington market holds significant potential. “We’ve actually had some feedback from the Wellington market about how refreshing it’s been to have a firm like Meredith Connell actually investing and looking to drive more growth, more opportunity out of Wellington, at a time when the perception, at least that has been expressed to us, is that firms and businesses have perhaps been looking elsewhere.”

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WHAT’S NEXT FOR THE ALL-OF-GOVERNMENT PANEL? Wellington lawyers will be watching the All-of Government (AoG) panel for external legal services closely in 2015. The arrangement was introduced with the aim of streamlining the way government departments and other government entities procure legal services. Following an extensive RFP process, the first panel of firms was named in December 2011 for a two-year period.

“There were lots of firms that missed out and were no longer eligible to get government work,” Reese recalls. “That has been a big change and affected not just the big firms but a lot of small firms and a lot of barristers, and there was quite a fuss at the time.”

ALL-OF-GOVERNMENT EXTERNAL LEGAL SERVICES

40

law firms and barristers

18%

average savings per agency on legal advice

The panel contracts were renewed for a further two years in 2013, and the AoG panel arrangement is currently being reviewed to determine whether the government will exercise its final right of renewal in 2015 and extend the panel’s tenure for another two years, or whether firms will be asked to re-tender.

“It’s been challenging for us in a number of ways.

I think it’s been mostly because there’s somebody else intermediating between us and our client, which we always find a little bit frustrating, and it’s obviously put a lot of pressure on fees … and there are some feedback and reporting aspects of it which are a bit clunky and frustrating, but overall I think it’s been a good thing for the government to do, and it hasn’t been a major issue for us,” Reese reflects.

“The government work that we’ve been doing has probably increased. We do have to manage the work carefully to ensure that it remains profitable for us to do it. It’s had challenges but I think we’ve coped with them well.” NZL

Almao Douch has a vacancy for an Crown Prosecutor.

The firm is the office of the Crown Solicitor at Hamilton and a solicitor with experience in criminal jury trials is required to conduct the prosecution of trials in both the High and District Courts together with attendances in relation to other aspects of the Crown Solicitor’s practice.

Applications from interested practitioners with 3 or more years experience are sought.

In each case the terms of employment will be negotiated to reflect the experience and ability of the successful applicant.

NZL_6.4_Almao Douch_panel ad.indd 1

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government departments, SOEs, universities and local councils use ELS panel providers

Applications accompanied by a CV should be addressed to: Almao Douch PO Box 19173 HAMILTON 3240 Attention: R G Douch

26/11/2014 6:10:49 | 29 DECEMBER 2014 PM

Source: procurement.gov.nz

communications,” says Gordon, adding that a number of companies in the sector have listed, and other listings are in the pipeline.

Johnson has also observed a flow of good IT work in the Wellington market. “After the few hiccups that Wellington has had with IT projects over the last 18 months, we are seeing people invest time and effort, including getting robust, good, rigorous legal advice on IT projects that can very easily go wobbly if not properly managed,” she says, adding that the firm has acted on a number of very significant IT transactions this year.

“From an approach perspective, a lot more care is being put into both the structuring and the manage­ ment of IT projects, as opposed to thinking that you could do it with a template contract. That’s been good because we are being faced with interesting issues that have always warranted attention but perhaps never did get the attention they deserved.”

MEET THE

WINNERS On 6 November, close to 500 of the legal profession’s finest packed the Pullman Hotel ballroom to celebrate the 10th Annual New Zealand Law Awards.

Earlier in the year, NZ Lawyer sought nominations from the legal fraternity, and we were inundated with hundreds of nominations from across the country. Our panel of judges, which was comprised of some of New Zealand’s most respected general counsel, law firm leaders and legal academics, were faced with the daunting task of selecting the winners from a formidable line-up of finalists.

The winners and the finalists highlight the outstanding achievements and the phenomenal depth of talent within the legal profession’s ranks.

Congratulations to all the finalists and winners of the 2014 New Zealand Law Awards.

30 | DECEMBER 2014

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ALLPROCURE Regional/ Suburban Law Firm of the Year

CROWE HORWATH Mid-Size Law Firm of the Year

ICMS CREDIT SYSTEMS Large Law Firm of the Year

Downie Stewart Lawyers

Anderson Lloyd Lawyers

Chapman Tripp

L-R: Gerard DeCourcy (Downie Stewart Lawyers) and Lindsay Haagh (AllProcure)

L-R: Warwick Deuchrass (Anderson Lloyd Lawyers) and Andrew Sayers (Crowe Horwath)

Andrew Poole

WATERSTONE Boutique Law Firm of the Year Webb Henderson L-R: Malcolm Webb, Garth Sinclair, Jordan Cox (Webb Henderson) and Brent Norling (Waterstone)

DECEMBER 2014 | 31

Employment Specialist Law Firm of the Year LangtonHudsonButcher

CROWE HORWATH Litigation & Dispute Resolution Specialist Firm of the Year Wilson Harle L-R: Chris Browne, Kerryn Webster, Gary Hughes, Ian Denton (Wilson Harle) and Scott Mason (Crowe Horwath)

CANON NEW ZEALAND LIMITED Intellectual Property Specialist Firm of the Year

PRENDOS NEW ZEALAND Property and Construction Specialist Firm of the Year

AJ Park

Thompson Blackie Biddles

L-R: Craig Gregory (Canon New Zealand Limited), Pete Boyle and Matt Devine (AJ Park)

Back Row L-R: Sam Greenwood, Tara Worthington, James Blackie, Joe Biddles, Tom Elvin, Greg Thompson Front Row L-R: Emma Haycock, Kylie Tietjens, Ashleigh Lloyd

32 | DECEMBER 2014

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AIG INSURANCE NEW ZEALAND Insurance Specialist Firm of the Year McElroys

LEGAL PERSONNEL Employer of Choice (0- 49 Employees) Armstrong Murray

L-R: Andrew Colgan, Kiri Harkess, Peter Hunt, Andrea Challis, Darren Turnbull (McElroys) and Ryan Clark (AIG Insurance New Zealand)

Rear L-R: John Armstrong, Ruby Piddington, Audrey Muñoz, Chris Davis, Neil Murray, Karen Stubbs Front L-R: Jo Cleal, Sara Brice, Carol Allen, Jackie Cross, Desiree Mason (Armstrong Murray) and Judith Eller (Legal Personnel)

LEGAL PERSONNEL Employer of Choice (50-99 Employees)

LEGAL PERSONNEL Employer of Choice (100+ Employees)

Anthony Harper

Chapman Tripp

L-R: Fleur Templeton, Lisa Gray, Malcolm Hurley, Lisa Jacobs, Richard Smedley (Anthony Harper) and Judith Eller (Legal Personnel)

L-R: Michael Harper, Cathryn Barber, Stephen Lowe, Rachel Dunne, Emma Sutcliffe, Andrew Poole, Paula Brosnahan, Tim Tubman

DECEMBER 2014 | 33

LEADR - ASSOCIATION OF DISPUTE RESOLVERS Mediator of the Year

Young In-House Lawyer of the Year

L-R: Anna Quinn (LEADR) and Maria Dew (Bankside Chambers)

Frances Hook, Canterbury Earthquake Recovery Authority

LEXISNEXIS Young Private Practice Lawyer of the Year

Banking & Finance In-House Team of the Year

Ben Thompson, Hazel Armstrong Lawyers

Heartland Bank

Maria Dew

L-R: Ben Thompson (Hazel Armstrong Lawyers) and Rachel Travers (LexisNexis)

34 | DECEMBER 2014

L-R: Anna-Lisa Strain, Laura Byrne, Rochelle Moloney

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Insurance In-House Team of the Year

RUSSELL MCVEAGH In-House Team of the Year

AIG Insurance New Zealand

New Zealand Treasury

Richard Shine

L-R: Gary McDiarmid (Russell McVeagh) and Adam Wood (New Zealand Treasury)

In-House Lawyer of the Year

NZ LAWYER Lifetime Achievement Award

Charles Bolt and Dave Whiteridge L-R: Charles Bolt (Fletcher Building) and Dave Whiteridge (NZ Transport Agency)

Ralph Simpson, Bell Gully

DECEMBER 2014 | 35

M&A Deal of the Year Beijing Capital acquisition of Transpacific Waste Management L-R: Tim Tubman (Chapman Tripp) and David Hoare (Russell McVeagh) FIRMS: Chapman Tripp, Russell McVeagh

Capital Markets Deal of the Year Meridian IPO L-R: Joe Windmeyer (Russell McVeagh), Adam Wood (New Zealand Treasury), Stephen Lowe (Chapman Tripp) FIRMS: Bell Gully, Chapman Tripp, Harmos Horton Lusk, Russell McVeagh ADVISORS: Derek Johnston (Barrister) IN-HOUSE TEAMS: Meridian, New Zealand Treasury

36 | DECEMBER 2014

Consumer Media Tech Deal of the Year MediaWorks sale and debt restructuring L-R: Will Tipping (Mayne Wetherell) and Michael Harper (Chapman Tripp) FIRMS: Bell Gully, Buddle Findlay, Chapman Tripp, Mayne Wetherell, Russell McVeagh, Webb Henderson BANKS: JP Morgan, KordaMentha, Oaktree Capital, Rabobank, RBS, TPG Capital, Westpac New Zealand

International Deal of the Year Beijing Capital acquisition of Transpacific Waste Management L-R: Tim Tubman (Chapman Tripp) and David Hoare (Russell McVeagh) FIRMS: Chapman Tripp, Russell McVeagh

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Crowe Horwath Managing Partner of the Year Roger Partridge, Bell Gully

KONICA MINOLTA New Zealand Deal of the Year Solid Energy financial restructuring L-R: Paul Foley (Minter Ellison Rudd Watts), Emma Barnett (Westpac New Zealand Limited), Michael Harper (Chapman Tripp), Peter Eady (Simpson Grierson), Steve Flynn (Simpson Grierson), Cathryn Barber (Chapman Tripp), Patrick Brockie (ANZ), Warwick Beban (Konika Minolta).

Firms: Chapman Tripp, Mayne Wetherell, Minter Ellison Rudd Watts, Simpson Grierson Banks: ANZ, BNZ, Commonwealth Bank of Australia, Westpac New Zealand

DECEMBER 2014 | 37

Sponsors AIG

Canon

AIG is a leading international insurance organisation serving customers in more than 130 countries. Operating in New Zealand since 1970, AIG serves commercial, institutional and individual customers through one of the most extensive worldwide property-casualty networks of any insurer.

Canon New Zealand is a leading imaging organisation, actively inspiring with imaginative ideas that enable people to connect, communicate and achieve more than they thought possible.

To best partner with businesses across New Zealand, our goal at Canon Business Solutions is to help you do what you do better. We have solutions for all your technology needs, from printing and copying, connecting your branches, to educating and sharing.

AIG’s Financial Lines provides innovative management liability, cyber liability, mergers and acquisitions liability and specific professional indemnity protection tailored to fit the individual needs of New Zealand and multinational organisations. Our global capacity, expertise and claims capabilities, coupled with our local presence, provide clients with the tools needed to mitigate the emerging board-level risks they face while striving towards a successful future.

CONTACT Ryan Clark, manager, financial lines P: 09 355 3144 E: ryan.t.clark@aig.com W: www.aig.co.nz

CONTACT Madeleine Furley, public relations and communications consultant P: 09 926 9352 M: 021 448 336 W: www.canon.co.nz

Crowe Horwath

LEADR

Crowe Horwath offers a full range of accounting services, including tax, audit and business advice, across our 22 New Zealand offices.

With a membership of 2,700 across New Zealand, Australia and the Asia-Pacific, LEADR is Australasia’s largest membership organisation for ADR practitioners. LEADR promotes the use of ADR and supports members with information and development.

As part of the global Crowe Horwath network, we have the resources and proven experience to maximise our clients’ growth potential. Clients value our practical, commercial, industry-specific advice and our ability to translate accounting information and financial reports into pragmatic advice. We cater for all sizes of business and work with you to identify and implement the right structures, funding options and efficiencies to deliver your aspirations for growth, profitability and personal wealth.

CONTACT Marnus Beylefeld, associate principal P: 09 968 8511 M: 021 162 1431 E: marnus.beylefeld@crowehorwath.co.nz

38 | DECEMBER 2014

LEADR began training New Zealand mediators in 1996, and LEADR training is internationally recognised by the Mediator Standards Board in Australia and the International Mediators Institute. LEADR has been accrediting mediators for over 15 years and LEADR mediator accreditation is widely recognised in New Zealand and Australia.

CONTACT Catherine Cooper, general manager New Zealand P: 0800 453 237 E: leadr@leadr.co.nz W: www.leadr.co.nz

NZLAWYERMAGAZINE.CO.NZ

Legal Personnel

Prendos

Legal Personnel is a full-service specialist legal recruitment company recruiting permanent, temporary and contract positions for senior associates, solicitors, legal executives, legal secretaries and administration positions (including practice managers, accounting and trust accounts staff).

Prendos is a leading consultant to the property and construction industry.

With more than 25 years’ experience across all building types and market sectors, the company delivers independent, expert advice through a network of offices across New Zealand.

Market mapping, searches, identifying talent for the future, succession recruitment and helping small firms and sole practitioners transition to new firms successfully are all in a day’s work. Our career workshops offer clarity and confidence in finding purpose in what we do and to be able to articulate the value you bring to the role you take on.

CONTACT Judith Eller, director P: 09 359 9244 E: judith.eller@legalpersonnel.co.nz W: www.legalpersonnel.co.nz

Prendos’ services cover the complete spectrum of the property life cycle, including acquisition, occupancy, development and disposal.

Project management Fire engineering Structural engineering Residential building surveying Quantity surveying Commercial property Architecture consultancy Property valuation Dispute resolution CONTACT Desiree Prendergast, new business manager P: 09 970 2615 or 021 637 338 E: desiree@prendos.co.nz W: www.prendos.co.nz

Russell McVeagh

Waterstone

Russell McVeagh is an awardwinning firm with an established history of excellence.

Waterstone is an innovative insolvency firm based in Auckland. Operating since 2006, the practice has grown to 14 staff, including an in-house legal team of four who have a reputation for creating case law and enforcing directors’ liabilities.

Widely regarded as New Zealand’s premier law firm, we employ more than 250 lawyers across our offices in Auckland and Wellington. Our solicitors advise across nine key practice groups: competition, corporate, employment, environment planning and natural resources, finance, litigation, property, public law and tax.

We represent leading corporations, financial institutions, state-owned enterprises, government entities and multinational companies on their most complex, challenging and high-profile transactions. Russell McVeagh is committed to understanding our clients and providing commercially focused solutions.

Waterstone is setting a new benchmark in what creditors can expect.

CONTACT Steven Khov, general manager P: 0800 256 733 or 021 649 585 E: steven@waterstone.co.nz W: www.waterstone.co.nz

CONTACT P: 09 367 8000 W: www.russellmcveagh.com DECEMBER 2014 | 39

Sponsors Konica Minolta New Zealand

AllProcure

Konica Minolta New Zealand is a market leader in the provision of document management and print solutions, with more than 40 years’ experience helping New Zealand businesses to efficiently manage information flow and harness new document technology. Owned by CSG Limited, a leading Australasian IT services company, Konica Minolta New Zealand still has close ties with Konica Minolta Japan, which retains a shareholding in the company. Our global connections and local focus allows us to provide customers with solutions tailored to fit their business.

AllProcure uses the buying power of all its members combined to achieve more competitive terms than your firm can secure alone – with both pricing and service levels.

CONTACT Angela Hunter, Legal Solutions Specialist P: + 64 9 356 6056 E: Angela.Hunter@konicaminolta.co.nz W: www.konicaminolta.co.nz

ICMS ICMS is a well established debt collection and credit reporting agency specialising in consumer and commercial debts. We offer neutral third party collections with no emotional attachment to any relationship between the debtor and client. It is our top priority to maximise returns while maintaining business relationships of our clients. Our credit reports enable our clients to analyse the risk associated with doing business with a potential client before they do so.

CONTACT Clyden Manikkam, Team Leader P: 0800 DEBTOR E: clyden.manikkam@icms.co.nz W: www.icms.co.nz

40 | DECEMBER 2014

AllProcure offers a unique opportunity for law firms to reduce costs and improve procurement processes while remaining completely independent. This translates directly to an improved bottom line for your firm. As an AllProcure member firm you will have access to member only pricing and special terms from our carefully selected suppliers.

CONTACT Lindsey Haagh P: 04 233 6370 E: Lindsey@allprocure.co.nz

LexisNexis LexisNexis® Pacific is the leading provider of local and international news, business, tax and legal information, using leading-edge technology, tools and digital solutions. Both in Australia (www.lexisnexis.com.au) and New Zealand (www.lexisnexis. co.nz), LexisNexis Pacific works in close collaboration with its customers to provide content-enabled workflow systems for professionals in law firms, corporations, government, law enforcement, tax, accounting, academic institutions and compliance assessment.

CONTACT Michaela Williams P: +64 9 368 2180 E: michaela.williams@lexisnexis.co.nz

Are you spending A fortune on archIve storage for dead fIles?

Is your fIrm challenged by growIng volumes of paper? do you have resources tIed up on document scannIng Instead of bIllable work?

We can help. At Konica Minolta, we recognise that the effective management and sharing of information held in documents is a critical success factor for all law firms.

We partner with you to provide end-to-end solutions tailored to fit your firm, enabling you to: • Increase productivity and capacity for billable hours • R educe operational costs associated with managing and storing documents • Ensure accurate filing of documents for rapid retrieval • Reduce/eliminate coding and filing errors.

CapTuRE

SToRE

RETRIEvE

DISTRIbuTE

holD

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management and audIt traIls

to find out how we can help your firm, contact konica minolta on 0800 933 008 konica minolta was proud to sponsor the 2014 nz law awards Congratulations to Chapman Tripp, Mayne Wetherell, Minter Ellison, Rudd Watts, and Simpson Grierson on winning New Zealand Deal of the Year – Solid Energy financial restructuring deal.

konicaminolta.co.nz

konIca m proud Inolta spons or of the 20 law aw 14 nz ards

PROFILE / DAVID HOWMAN

42 | DECEMBER 2014

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A good

sport The World Anti-Doping Agency’s director general, David Howman, talks to NZ Lawyer about the pursuit of fair and drug-free sport, and his former career as a lawyer and barrister in New Zealand “Some people would describe me as a bit of a sports nut,” says David Howman of the World Anti-Doping Agency (WADA). It’s hard to think of a better role for the sports-loving lawyer from New Zealand. Since August 2003 Howman has been the director general of WADA, and before that its chief operating officer and special counsel.

“It’s a unique organisation that combines public authorities, the governments of the world, with private enterprise, the sporting movement of the world. It’s the only body of that sort internationally where you get that combination,” Howman says of WADA, which provides a unifying body for the global fight against doping in sport. “We have written and revised several times a code of rules which is actually in place in every country in the world and in every sport in the world, which is also unique, and our task is to monitor those rules to make sure everyone is practising them properly and assisting those who don’t, and determining whether those who refuse to accept that assistance are non-compliant and therefore in some difficulty in international sport.”

When Howman first joined WADA, the first World Anti-Doping Code had just been completed. “We’ve now reviewed it twice and each of the reviews has been significant. The last one, which was concluded by a conference in Johannesburg last year, is probably the most significant because there was no disagreement with the final product, and total commitment from all sports and all governments to the revisions,” he says.

DECEMBER 2014 | 43

PROFILE / DAVID HOWMAN

CREATING AN EVEN PLAYING FIELD The scale of the task confronting the Agency is immense. The challenges are twofold: tackling organised criminal interest in sport and the associated problems like bribery and corruption, and keeping pace with advances in science that athletes may be able to use to their advantage.

“Because sport now has a lot of money, people want to take shortcuts to achieve financial success, and that makes it a real battle for us,” Howman says.

“We’re encountering, of course, the fact that many athletes are very, very well paid – probably some have bigger incomes than our total budget – and they use some of their incomes to handsomely pay scientists and doctors and so forth to help them cheat,” Howman explains.

“It’s a unique organisation that combines public authorities, the governments of the world, with private enterprise, the sporting movement of the world. It’s the only body of that sort internationally where you get that combination” “The ever-increasing pharmaceutical barrage of drugs that are intended to help the health of our nations can be misused by those who want to cheat in sport. We have to keep an eye on that, and it’s pretty difficult because there are hundreds of new drugs that come out, almost on a monthly basis.”

WADA has worked on a range of doping-related cases, including appealing the Spanish Cycling Federation’s acquittal of Alberto Contador to the Court of Arbitration for Sport, which subsequently imposed a two-year ban. The Agency worked closely with the US Anti-Doping Agency on its Lance Armstrong inquiry, and has also been involved in most of the doping issues arising from the Olympic Games.

Howman says New Zealand fares relatively well when it comes to tackling cheating in sport. “I think New Zealand and Australia regard themselves as running pretty good anti-doping programs and generally feel that the athletes in these two countries are those with pretty high values, and I would say to 44 | DECEMBER 2014

the majority that would be correct,” he says. “There is, of course, the odd bad apple, and both countries have seen those in the last few years. They are the exception, hopefully, rather than the rule, and that happens in just about every country, so there’s no situation where you can say any country is immune.

New Zealand certainly couldn’t put itself into that category, but generally speaking in a small country if you do something wrong you’re going to be found out, because word of mouth is quite effective, and that, I think, assists the system in New Zealand.”

A SPORTING CAREER Howman’s career has largely coincided with the rise of professional sport. A scholarship took him to the University of Pennsylvania in the mid-1970s, and it was during his time in the US that he observed the beginnings of professional sport. “My eyes were widened by what was happening in the seventies to the way that sport was emerging from being solely an amateur game to something where you could see the horizon was going to be much more fruitful for athletes, and so it proved.”

His legal career commenced in the 1980s with Brandon Brookfield, where Howman represented a number of sporting personalities, including New Zealand cricket captains, All Blacks and Olympians.

“I did a lot of work to ensure the sports people were adequately represented in negotiations and so forth,” he recalls.

In the early 1990s when he was a partner at Simpson Grierson, Howman was appointed the first commissioner for citing for New Zealand Rugby.

When he left private practice for the bar in 1995, Howman was appointed by the sports minister to be Hillary Commissioner and a director of the Sports Foundation. The minister subsequently appointed him chair of the New Zealand Sports Drug Agency, a role that led him to represent New Zealand at the First World Conference on Doping in Sport in Lausanne in 1999. WADA was born of that conference, and Howman has worked with the Agency ever since, initially as New Zealand’s representative on the board, and later as chair of the legal committee.

Initially intending a two- to three-year sabbatical from barristerial work, Howman made the move to Montreal in 2003, and has been there ever since. “As a CEO I rely very heavily on my own inside and

NZLAWYERMAGAZINE.CO.NZ

outside counsel to guide on issues of the law, so I’m not as primarily connected as I used to be, and I miss that,” he says of legal practice.

Given the global nature of WADA’s work, the Agency regularly engages outside counsel, briefing firms in the US, Canada, Switzerland and the UK. For Howman, there’s no such thing as a typical day. Each working day can bring with it meetings with experts and politicians, discussions with the media, and more. Cultural and language differences and variations in time zone add to the challenges of his role. “Because we’re based in Montreal, when we get up, the rest of the world has already been up for quite a long time … so if you’re in the office, the first part of the day is always reacting to what has occurred overnight, and then the second half of the day is then proacting so those who are sleeping will have work to deal with,” he says.

He credits his legal career with helping him tackle such a significant and complex role: “You need to be

“Because sport now has a lot of money, people want to take shortcuts to achieve financial success, and that makes it a real battle for us” decisive in your management skills and the way that issues are resolved or decided, and I think that’s a skill which I learned in my career as a lawyer. I’m also lucky that I can speed read, because there’s an awful amount of material that you need to read on a daily basis.”

Despite the challenges of leading a global organisation and the scale of the problem that WADA is tasked with addressing, for Howman the role is an incredibly satisfying one, and simply coming to work each day is rewarding in itself.

“Every day is different. It’s quite a unique job.” NZL

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AUSTRALIA’S NUMBER 1 LAW SCHOOL DECEMBER 2014 | 45

PROFILE / ARTHUR TOMPKINS

The art of

law

Away from the courtroom, District Court judge Arthur Tompkins talks to Kathryn Crossley about his other passion: protecting art during wartime Art is often a casualty during war, says District Court judge Arthur Tompkins. The reasons for its looting and destruction during armed conflict are varied, and range from an artwork simply being in the wrong place at the wrong time, to a soldier coming across something in the rubble that is easily pocketed. During the era of princely art collections, which were seen as manifestations of power, works were often looted for dynastic and symbolic reasons.

Sometimes the motivations were more destruc­ tive than symbolic. “During the Thirty Years’ War in the 17th century, it was an explicitly CatholicProtestant conflict, and a lot of the looting that happened during that war was specifically aimed at destroying or denigrating heresy or heretical art,” Tompkins explains.

The best-known example of art crime during war is the Nazis’ systematic plundering of museums, galleries and Jewish collections during the Second World War. “The rough figure from World War II is that somewhere between 40% and 60% remains either destroyed or disappeared, but really it’s 46 | DECEMBER 2014

anyone’s guess,” Tompkins says.

“Right now a lot of the looting of the art during war is happening in the Middle East, particularly the listed antiquities which are being excavated and then laundered into the antiquities market in order to fund revolutions and civil wars and insurrections,” he says. “A lot of the Syrian conflict is being funded by illicit excavations of antiquities and then those being exported out. They wash up into particularly America and London, but other antiquities markets as well.”

The legal issues surrounding these art crimes are by no means straightforward. Art is easily transported across borders, and countries often have different rules relating to the recovery of stolen property, which can further complicate attempts to recover works. The other challenge relating to artworks looted during wartime is that records are often sparse and witnesses are missing.

Tompkins is a proponent of the creation of an international art crime tribunal to mediate such disputes. “It’s a fond dream that I am pursuing, really because a lot of these issues are intractable and there is no tribunal at which states, between themselves, or for that matter individuals and states, can resolve these issues,” he explains.

“An international tribunal which is able to provide neutral ground for mediated or negotiated disputes is able to act as a repository and an

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umbrella under which research can occur, and can provide arbitral facilities.”

In recent years, Tompkins has observed a far greater willingness on the part of public collections to be proactive in trying to resolve disputes over works. “I think now there’s a much greater willing­ ness to, really, when it comes down to it, just do the right thing,” he says.

Auction houses are also becoming increasingly conscious of the works they sell, and where the provenance of a work is uncertain, collectors are more hesitant to buy into a fight. But despite the change in attitudes, the market for stolen art is huge, and there is still plenty of research to be done.

FROM THE COURTROOM TO THE CLASSROOM It was a “long series of serendipitous coincidences” that led to Tompkins’ involvement in art crime research and teaching. While attending a forensic DNA conference at Interpol headquarters in Leon, he met a member of Interpol’s stolen art unit. “The work I was doing in the forensic DNA area with Interpol related to cross-border criminal issues, and it struck me that the same kinds of issues arise with stolen art,” Tompkins recalls.

His interest piqued, and he reached out to others researching art crime and was soon giving a paper at the inaugural conference of the Association for Research into Crimes Against Art (ARCA) in Amelia, Italy. ARCA invited him back to teach a course on art crime during war as part of its postgraduate certificate program, and he has been teaching the course every year since 2010.

“I have to leave the New Zealand winter at the end of June and go and spend two and a half to

“A lot of the Syrian conflict is being funded by illicit excavations of antiquities” three weeks in an Umbrian summer. It’s very difficult,” he jokes.

Closer to home, Tompkins has also taught his art Mighty Power’s reputation is built on the quality and crime in war course atRiver the University of Waikato, behaviour our people - great working together as and will be convening anofevening course onindividuals the a team to contribute to great results and a great reputation. topic at Victoria University of Wellington in 2015.

General Counsel

An interesting and rare opportunity to lead Mighty River

legal team has become available for a ON THE BENCHPower’s General Counsel. Reporting to the General Manager

For the remaining 49 weeksAffairs, of the the year,General Tompkins is will manage the Corporate Counsel a District Court group’s judge. His caseload is comprised of Legal Services function to ensure that Mighty River Power complies legal obligations, manages its legal criminal and civil matters, andwith he its presides over risk and rights and remedies effectively. trials by judge alone andexercises by jury. its Helegal is also panel responsibilities include: convenor for theThe Newkey Zealand Parole Board and sits Managing a small, highly skilled in-house legal team on the Supreme • Court of the Pitcairn Islands.

• Providing commercially focused advice on common law, “It’s emotionally satisfying and intellectually contract, statutory and regulatory matters to the Mighty stimulating; you’reRiver in Power direct Group contact with such a huge range of• people … you never quite know Providing corporate governance support to the General Manager Corporate Affairs what’s going to walk through the door,” Tompkins says of his work.• “IManaging the efficient use of legal services from still enjoy getting out of bed and external legal advisors going to work in• the morning, which is a rare thing, Assisting in negotiating commercial arrangements and I suspect.” taking a key role in project teams across the business Although he enjoys the variety and unpredict­ If you’re looking to join a company determined to build its ability of his role, Tompkins admits the work can reputation for excellence you can find more information about take an emotional toll, and the decision-making can for by visiting our this opportunity and what we’re looking careers pageresearch www.mightyriver.co.nz/careers.aspx be relentless. His external has helped to provide a balance. “The forensic DNA work and the art crime work are very useful in helping me avoid possible burnout. It keeps me interested and it keeps me involved and able to give everything to my main job.” NZL

General Counsel Mighty River Power’s reputation is built on the quality and behaviour of our people - great individuals working together as a team to contribute to great results and a great reputation.

An interesting and rare opportunity to lead Mighty River Power’s legal team has become available for a General Counsel. Reporting to the General Manager Corporate Affairs, the General Counsel will manage the group’s Legal Services function to ensure that Mighty River Power complies with its legal obligations, manages its legal risk and exercises its legal rights and remedies effectively.

The key responsibilities include:

• Managing a small, highly skilled in-house legal team • Providing commercially focused advice on common law, contract, statutory and regulatory matters to the Mighty River Power Group • Providing corporate governance support to the General Manager Corporate Affairs • Managing the efficient use of legal services from external legal advisors • Assisting in negotiating commercial arrangements and taking a key role in project teams across the busines If you’re looking to join a company determined to build its reputation for excellence you can find more information about this opportunity and Source: NVader what we’re looking for by visiting our careers page www.mightyriver.co.nz/careers.aspx

DECEMBER 2014 | 47

BUSINESS STRATEGY / LEADERSHIP

Y A W E E H T F TH L

A E S

Comparisons between the corporate world and the life and death situations faced by elite military units may seem tenuous, but there are fundamentals common to both.

Who better to coach leadership and human performance than an ex-Navy SEAL? 48 | DECEMBER 2014

After a brief career as a CPA at the firm that is now PricewaterhouseCoopers, Mark Divine left the corporate world to follow his dream of becoming a Navy SEAL officer. At 26 he graduated as ‘honour man’ of his SEAL BUD/S (basic underwater demolition school), class 170. He retired as a commander in 2011 and embarked on his entrepreneurial career, founding a number of courses for business leaders and athletes alike, tapping into his expertise in human performance, mental toughness, leadership and physical readiness. Here, Divine answers questions about how business leaders can tap into the training and knowledge used by SEALS to better lead their own teams.

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HRD: How do SEAL commanders gain loyalty and respect from their troops, and how can this be translated to the business world?

Mark Divine: SEALs must lead the most dangerous and complex special operations missions in the world. To succeed they must gain the loyalty and respect of their team. This trust starts as SEAL leaders endure the exact same training as their troops. They must perform side by side with the troops, meeting the same physical and mental toughness standards, while exceeding the academic standards.

Assuming the SEAL officer makes it through the arduous 45 weeks of training (and little more than 20% of all SEAL trainees do), then they have proven to their troops that they can walk their talk. This gives them the initial bank account of professional respect. They build upon this respect and further develop the trust and loyalty of their team by continuing to lead from the front during their careers.

Business leaders can use this same approach by getting their hands dirty and by being willing to do everything they ask of their teams. They can show that they are willing to prove their mettle against the standards and share in the bonding experience.

In this manner, respect and loyalty are earned every day in the trenches rather than conveyed by the privilege and power of the position.

“Business leaders can gain respect by getting their hands dirty and by being willing to do everything they ask of their teams. In this manner, respect and loyalty are earned every day in the trenches rather than conveyed by the privilege and power of the position” HRD: I imagine being a SEAL requires a degree of conformity (to be able to constantly obey orders, etc). How do you know when to conform and when to be unconventional? Does the ability to choose wisely come from training or intuition/natural ability?

MD: Unconventional methods and conformity are not mutually exclusive. SEALs follow orders, but those orders allow for flexibility of thought and action uncommon in other military units (including other special ops units). This way of thinking is trained, starting in BUD/S, and continues at the team level. The freedom allowed for fieldlevel decisions requires that SEALs develop deep intuition to guide their decision-making. Deep

HRD: In your experience, can anyone be a leader?

MD: No, not everyone can be a leader. The most important element of leadership is character. The character to lead is a combination of natural and acquired talent. Natural talents associated with leadership include the ability to accept unusual risk, and a burning desire to learn and grow.

Assuming one has the natural talent to lead, then competence is developed through a willingness to embark upon a daily effort to master the many skills required to lead well: communication, trustworthiness, consensus building, visioning, planning, as well as the tactical skills and knowledge of one’s particular domain of leading. Not everyone is willing to work that hard to be an exceptional leader, which is why it is rare to see it in action.

Mark Divine (back, centre) with fellow Navy SEALs on active duty

DECEMBER 2014 | 49

BUSINESS STRATEGY / LEADERSHIP

intuition is acquired through repetition and mastery of the requisite skills so that they are done with an unconscious competence. In addition, the level of risk and intensity of the missions that SEALs take on deepens intuition naturally.

HRD: How can business leaders conquer their fears in business situations, just like SEALs do?

MD: Fear is nothing to fear. SEALs learn that fear can be managed and be used as a focusing energy.

On the other hand, the absence of fear can indicate burnout and lead to hasty decisions that negatively impact mission success (or worse, your life).

Business leaders can learn to control fear and use it to their advantage. They must lean into things they fear and learn from it. The more one takes bold action with those things they fear most, the more they are able to transmute the fear energy into determined, focused action.

HRD: You’ve previously talked about Front Site Focus, where a SEAL must engage one target at a time. Yet in the business world there is an emphasis on multitasking. What’s your view on multitasking? Is it productive or not?

MD: It is OK to multitask when conducting simple

Mark Divine is the founder and CEO of SEALFIT and NavySEALs.com, and creator of Unbeatable Mind. After working with thousands of special ops candidates and professionals developing mental toughness, Mark self-published his first book, Unbeatable Mind, in 2011 and launched the at-home study program unbeatablemind.com. He is also the author of the WSJ bestseller The Way of the SEAL, published by Reader’s Digest, and the NYT bestseller 8 Weeks to SEALFIT, published by St. Martins Press.

50 | DECEMBER 2014

tasks that one can train to do without much cognitive energy. A healthy example of this includes walking on a treadmill while talking on the phone. However, the way multitasking is done in the business world leads to many mistakes and misunderstandings.

For instance, holding an important phone call and checking email at the same time will lead to both being done poorly.

So I am not a fan of multitasking, and believe that we can only do one thing at a time with excellence.

Major performance and productivity gains are found when a business leader can learn to focus on one thing at a time, and do it with excellence. The key to this skill is to learn what things are the right things to focus on. This is the essence of my Front Sight Focus concepts that I teach in my book The Way of the SEAL.

HRD: How do SEALs deal with conflict in the ranks? And can this translate to the business world?

MD: Though conflict can be uncomfortable, it is not necessarily bad – it is an opportunity to grow and learn. Conflict is feedback that a system is in need of upgrade, or that a person or persons do not share the

same view of reality. In both cases it provides an opportunity to come out of the situation stronger and wiser. In the SEALs, conflict is dealt with headon, and immediately. It is not done through secretive back-channel communications. Rather, it is dealt with directly, immediately, and all team members are expected to have the emotional resilience to deal with the feedback, even if it’s about a personal failure.

Perpetual growth accrues to those who constantly challenge their own beliefs and the systems they operate within, by accepting their own limitations and stepping up to make positive changes.

HRD: If business leaders reading this were to choose between honing their minds or their bodies for business success, which should they choose?

MD: Both. When you hone your body you are developing mental control, focus and resilience.

Training your mind without training your body is like tuning your car’s engine daily while letting the body rust and decay. Eventually the mind will be destroyed by the failing body. My students in my online study program, Unbeatable Mind, tell me that they are operating at a much higher level of effectiveness as they train their body, mind and spirit in an integrated fashion.

HRD: How do you think clearly when things go wrong?

MD: By controlling your breathing and then learning to focus your mind under pressure. These are advanced skills learned by SEALs in training and which I teach in the Unbeatable Mind program. I refer to the core skills for this level of thinking as “the big four of mental toughness”.

HRD: When is the risk worth the reward?

MD: A risk is worth the reward when you have trained for victory so that you see it happen in your mind clearly and convincingly before you execute the mission. To achieve this level of confident execution you must train relentlessly at a level of risk near or equal to the risk involved in what you seek to achieve. The chances for success must be high, or else you are gambling and the project should be avoided if possible. SEALs train relentlessly for mission success and are able to take on projects with a risk level inconceivable to most. They succeed because their level of competence meets the level of challenge. NZL

NZLAWYERMAGAZINE.CO.NZ

Looking out for our mates: 6 signs someone is struggling and what to do about it

Look around you; are the people you work with happy and have a sense of wellbeing, or do they appear to be struggling? Karen Gately urges everyone to look out for your mates and help reverse the alarming mental health statistics

DECEMBER 2014 | 51  

BUSINESS STRATEGY / WELLBEING

Give some thought to the people you spend time with every day. Reflect on people at home, people you work with, service providers and any other person you regularly interact with. Reflect on their happiness and mental wellbeing; how sure are you that you know how they are? How well do you observe these people and see when they are struggling? We all have a role to play in ensuring the members of our community battling mental illness get the care they need, and it starts with seeing the issue.

According to the Australian Bureau of Statistics (ABS), depression and anxiety affect one in seven and one in four people respectively at some point in their lives. However, a staggering 65% of people with mental illness do not get the help they need.

Every day at least six Australians die from suicide; a further 30 attempt to take their own life. According to Beyond Blue, at any one time approximately 20% of working Australians are mentally unwell.

Changing these numbers will mean each of us doing our part. We all need to take responsibility for looking out for one another and helping those in need. As employers we have a critical role to play in creating workplace environments that are healthy and supportive. It is essential that people are encouraged and expected to behave with respect

PROPORTION OF PEOPLE AGED 16-85 WITH A MENTAL DISORDER (A) - 2007 % 50 40 30

6 SIGNS OF MENTAL ILLNESS

1

Extended period of time feeling ‘down’

Feeling depressed most of the time for anything more than a couple of weeks is a clear sign something is wrong. Constantly feeling sad, down or miserable isn’t normal and an obvious indicator that the person may need help. Depression is often also evident when people regularly feel overwhelmed, guilty, disappointed, irritable and frustrated.

2

Lost interest and resignation

20 10 0 At any point in their lives

In the 12 months prior to the survey

(a) Selected mood, anxiety and substance use disorders Source: National Survey of Mental Health and Wellbeing: Summary Results, 2007 (ABS cat. no. 4326.0)

52 | DECEMBER 2014

and compassion. Every person irrespective of their role should be expected to take responsibility for having a positive impact on the wellbeing of the people they work with.

In Australia every employer has a legal obligation to provide a work environment free of risk to health and safety. This obligation extends to the mental wellbeing of people. In larger organisations, HR directors and teams play an essential role in ensuring people understand how the workplace can impact the mental health of the team, how an individual’s mental health can impact on the workplace and what can be done to promote awareness, respond to issues and provide support.

When consideration is given to the very real and detrimental impact of mental illness on the productivity and performance of a team, the commercial justification for making it a priority becomes clear. There is no doubt as to the extent to which people can focus their efforts, collaborate effectively, invest energy and make good decisions when mental health is optimal. Diminished work performance, morale and engagement, high rates of absenteeism, high staff turnover, accidents and workers’ compensation claims are costly consequences of mental illness for many businesses.

Keep an eye on the person who no longer wants to do the things you know they love. Losing interest in playing cricket, for example, may not simply be a case of moving on to new interests.

Observe when someone has disengaged from their interests and resigned him or herself to living in a state of unhappiness. When people are depressed they are more likely to put off work tasks, postpone appointments and give up easily.

3

Becoming withdrawn

Withdrawing from close family, friends and

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Every person irrespective of their role should be expected to take responsibility for having a positive impact on the wellbeing of the people they work with colleagues is another sign someone is struggling.

For example, a colleague who in the past was keen to socialise suddenly having no interest in interacting with other people may well need support. While of course this example on its own isn’t enough to give you full insight into their mental wellbeing, it is all the insight you need to know it’s time to ask if they are okay.

4

Lost productivity

Take notice when someone who is typically productive starts to regularly miss deadlines and appear disorganised. Observe when people are unable to concentrate or become unusually indecisive. Being tired all the time may be another sign someone is struggling.

5

Lost confidence and self respect

The way people talk about themselves can be revealing of the state of their mental health. Look out for people who often say things like ‘I’m a failure’ or ‘I’m worthless’. Constantly hearing someone say ‘I’m sorry, it’s my fault’, particularly when they are not at all or only partially responsible, is a cause for concern. People who are struggling often express their unhappiness by saying things like ‘nothing good ever happens to me’ or ‘I don’t see the point in trying’.

6

Physical symptoms

Our physical health is unquestionably impacted by mental wellbeing. Feelings of stress, anxiety or depression have the potential to adversely impact our bodies. Headaches, sleep problems, loss or change of appetite and even significant weight loss or gains are telling indicators of someone who is struggling with depression.

TAKING ACTION Leaders play a particularly important role in driving commitment to policies and practices,

which promote mental health and ensure people are appropriately looked after. It is essential that HR teams work in partnership with leaders at every level of an organisation’s structure to ensure a consistent approach is adopted. Driving education initiatives, influencing a healthy workplace culture and providing support services are all essential roles HR must play.

1

Educate

A lot of people are relatively uneducated about both the signs of mental illness and what to do when they become aware of it. Ensuring people understand how to recognise when they or a work colleague may be experiencing mental illness is an important way of tackling the issue.

Just as important is overcoming an all too common stigma associated with mental illness.

It’s a big issue that stands in the way of many people getting the help they need. Employers can play a role to shift the underlying attitudes that drive this stigma by educating their managers and team about the facts.

2

Culture

Creating a respectful and compassionate workplace culture that inspires people to look after themselves and one another is among the most important ways an employer influences the mental health of their team. Leading by example and holding people accountable for behaving respectfully are essential. The expectations a leader sets, coaching they provide and consequences they apply for the way people choose to behave has a profound impact on the workplace environment created.

3

Support

Talk about the issue. The more hidden mental illness remains, the more people will continue to believe that it is shameful and needs to be concealed. No matter the nature of our relationship with someone, we should never hesitate to ask how they are. Simply asking ‘are you OK?’ tells someone you care and invites him or her to talk to you. While of course it matters that we maintain appropriate professional boundaries in our relationships, acting with compassion when we see anyone struggling is simply the right thing to do. It’s not our role to diagnose or provide counselling but it is our role to assist the people we work with to get the help they need. NZL

Karen Gately is a leadership and people management specialist and a founder of Ryan Gately. Karen works with leaders and HR teams to drive business results through the talent and energy of people. She is the author of The People Manager’s Toolkit: A Practical Guide to Getting the Best from People and The Corporate Dojo: Driving Extraordinary Results Through Spirited People. For more information visit www.karengately.com.au or contact info@ ryangately.com.au

DECEMBER 2014 | 53

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