NO DREAMS LEFT UNDONE Chen Palmer co-founder Mai Chen on public law, professionalism, and staying ahead of the pack KATHERINE ANDERSON INSIDE AUCKLAND COUNCIL’S DEVELOPMENT AGENDA
FOREIGN SHORES THE KIWIS CUTTING IT IN QATAR AND THE UAE
THE NEW INTELLECTUALS IP LAWYERS PREPARE FOR TRANS-TASMAN FACE-OFF
19/06/2014 9:24:42 AM
18/06/2014 1:43:36 PM
18/06/2014 1:43:51 PM
EDITORâ€™S LETTER / 6.2
MAY THE BEST FIRM WIN
Who could forget this time four years ago? Well, most of us probably. With all the buzz that the Football World Cup seems to generate every four years, itâ€™s pretty hard to imagine that in the 2010 competition New Zealand was a feature. And I know what youâ€™re thinking. Maybe you donâ€™t care about sport and you definitely donâ€™t care about soccer, but hear me out. Weâ€™ve long become accustomed to All Blacks teams being the centre of attention at Rugby World Cups, but the fact that there was an All Whites team representing New Zealand in a sport that has nowhere near the following it has in Europe is still hard to believe. Not only that, but thereâ€™s the fact that New Zealand was the only unbeaten team in the entire competition. No, really. Itâ€™s true. Google it. Remarkable as this achievement was, it has hardly sent as many shockwaves as another World Cup achievement shortly after: the awarding of hosting rights to the microscopic nation of Qatar. This, you will remember, is a country with absolutely no history of soccer pedigree. Summer temperatures can go beyond 50 degrees, which is hardly the kind of environment that immediately comes to mind for a World Cup. Itâ€™s thus with great interest that in this issue we feature Kiwi lawyer Richard Parris (page 35). Parris is managing partner in Clifford Chanceâ€™s ofďŹ ce in Doha, the capital of Qatar, and offers some interesting observations on what has been going on in a country that has stirred much international controversy. In keeping with the spirit of matching various players against each other, we also profile New Zealandâ€™s largest law firms. This feature is a result of an in-depth research into firm developments across New Zealand, and provides an insight into which firms have been growing their partner and associate numbers and which firms have been hanging back somewhat. Have an excellent quarter ahead.
COPY & FEATURES EDITOR Aidan Devine JOURNALIST Mackenzie McCarty CONTRIBUTORS Ben Abbott, Adam Fraser, Therese S. Kinal PRODUCTION EDITOR Roslyn Meredith SUB-EDITOR Richard Wood
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CORPORATE CHIEF EXECUTIVE OFFICER Mike Shipley CHIEF OPERATING OFFICER George Walmsley MANAGING DIRECTOR Justin Kennedy GENERAL MANAGER NZ Adrian Gallagher CHIEF INFORMATION OFFICER Colin Chan HR MANAGER Julia Bookallil Editorial enquiries Mackenzie McCarty tel: +64 9 973 5195 email@example.com Advertising enquiries Joel Ulbricht tel: +64 9 889 0060 firstname.lastname@example.org Subscriptions email@example.com Key Media keymedia.co.nz .EY0EDIA3TY/TD1=OĂŞCE Level 13, 57 Fort St, Britomart Auckland 1010, New Zealand tel: +64 9 973 5195 fax +64 9 973 5199 2ĂŞCESIN6YDNEY7ORONTO'ENVER0ANILA nzlawyermagazine.co.nz 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
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16 COVER STORY
A look at the indomitable force behind one of New Zealand’s top public LAWÁRMS
12 FEATURES 20 | New Zealand 20 1=/AWYERINTRODUCESITSANNUAL PROÁLEOFTHELARGESTÁRMSINTHE COUNTRY 25 | The new intellectuals 7HEEVOLVINGLANDSCAPEFOR INTELLECTUALPROPERTYLAWYERS
35 | Finding comfort in Qatar Richard Parris talks shop on managing AÀEDGLINGPRACTICEIN4ATAR 38 | Mapping legal IT’s future 7HELATESTCHANGESHEADEDÁRMSgWAY
Katherine Anderson Auckland Council’s new legal head talks city development
43 | Auckland Special Report :HERECANLAWYERSEXPECTNEWBUSINESS TOCOMEFROM"
REGULARS 32 | Drawn to Dubai %AKERSPARTNER6TEVEN+ENDERSON ONHISFASTPACEDLIFEINTHE8$(
54 | Blind belief %LINDLAWYER'ARREN)ITTERISAN INSPIRATIONTOJUSTABOUTEVERYONE
06 | Deals 08 | News analysis 10 | Appointments
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THE ‘TYPICAL’ NEW ZEALAND LAWYER No two lawyers are the same, but a portrait constructed from research ÁGURESON$USTRALIANAND1=LAWYERS shows where the profession is at in TERMSOFAVERAGEPERSONNEL
Type of lawyer: Solicitor Location: Sydney
Gender: MALE $GE 38 Time in practice: 14 years Women: 1EW=EALANDgSRISINGLEGALFORCE Male Female
THE AVERAGE LAWYER
Type of workplace: Unincorporated J?U¿PK
491 404 388 26% 74%
Size of workplace: 1-4 partners
numb e in the admitt er of women ed IN1EW to practice when c =EALAND om with 19 pared 80 62% 38%
$REASOFPRACTICE Corporate law, AMKKCPAG?J property law
Likely retirement AGE68
2013 Source: NSW Law Society, NZ Law Society
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• <Box out> Proportion of all lawyers practicing in each state • • <Design instructions: Have these statistics spread around a map of Australia, but this section of the infograph should be secondary to the guy in the suit part> • • NSW: 41% • • VICTORIA: 28% • • QUEENSLAND: 14% • • WESTERN AUSTRALIA: 7% • • SOUTH AUSTRALIA: 6% • • ACT 2% • • NORTHERN TERRITORY 1% • • TASMANIA 1%
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NEWS / DEALS
Recent deals $1bn
Japanese consortium acquisition of Carter Holt Harvey businesses
Rank Group Limited and Carter Holt Harvey
Gavin Macdonald, Chapman Tripp, Glenn Joblin, Jenny Mori Hamada Hills Matsumoto
Proposed acquisition of Sutton Group and Gardians by Danone
Gavin Macdonald, James Cooney
Harmos Horton Lusk
Millennium & Copthorne Hotels NZ rights issue of redeemable preference shares
Millennium & Copthorne Hotels New Zealand Ltd
Gavin Macdonald, James Cooney, Toby Sharpe
Wong Partnership, Singapore
Credit Suisse Loan Fundingled syndicate’s acquisition of majority stake in North Technology Group
NXT Capital, LLC (as agent)
Scott Abel, Matthew Triggs
Perpetual Trust and Milford acquisition of NZGT Holding Company shares
Bank of New Zealand
Peter Owles, Evelyn Jones
Russell McVeagh and Simpson Grierson
Belvino Investments acquisition of Accolade Wines assets
The Mud House Wine Group
Grant Dunn, Susie Kilty
Claymore Partners, Chapman Tripp, Norton Rose and Martelli McKegg
6ALEOF7RANSPACIÁCgS New Zealand business to subsidiary of Beijing Capital Group
7RANSPACIÁC Industries Group
John Strowger, Jarrod Murphy, Radhika Rani
‘Go to market’ process for the Wynyard Quarter development
Auckland Waterfront Development Agency
Commercial property purchase (Tateside Industry Park)
Port of Tauranga Ltd
Commercial property purchase (Izone Land near Christchurch)
Port of Tauranga Ltd
M&A Japanese consortium acquisition of Carter Holt Harvey paper business Chapman Tripp and Bell Gully advised on a Japanese consortium’s 100% acquisition of Carter Holt Harvey’s pulp and paper and packaging BUSINESSES7HEÁRMSADVISED on all New Zealand legal aspects of the purchase, including contract negotiations, deal structuring and environmental issues. The $1bn investment is one of the largest investments in the New Zealand economy by Japanese investors, according to Chapman Tripp. The consortium comprised Tokyo Stock Exchange-listed packaging company Oji Holdings Corp and Innovation Network Corporation of Japan.
Mud House Wine Group: Buddle Findlay, Chapman Tripp Value:$ML¿BCLRG?J M&A QWIL Investments bought a FREEHOLDINTERESTINÁVE vineyards of 596 hectares in Marlborough, Canterbury and Otago and Accolade Wines New Zealand bought a leasehold interest in the same land. The sale was announced in 1OVEMBERANDCONÁRMEDON April 1, but the sale price was not revealed. However, the OIO outlined the sale price as $46.4m, though this is understood to be for the land alone and does not include the price for the winery business or label brands.
Additional ¿PKQ involved
Russell McVeagh, Minter Ellison Rudd Watts, Chapman Tripp and Kensington Swan
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DEALS REPORTED TO NEW ZEALAND LAWYER Has the magazine missed an important deal? Help NZ Lawyer keep this information current by emailing the editor: firstname.lastname@example.org
Additional ÂżPKQ involved
Sale of Tata Steel International (Australasia)
DLA Phillips Fox
Martin Thomson, Chris Liddall
Buddle Findlay, Deloitte, PwC
Acquisition of Retail Property Holdings
DLA Phillips Fox
)OODSTUĂŠS1ORTH Island Ltd
Reuben Woods, Martin Wiseman, Brendan Meech
Chapman Tripp, PwC
Acquisition of Orion Crop Protection Ltd
DLA Phillips Fox
Zagro Singapore Pte Ltd
Martin Wiseman, Chris Liddall, Laura Scampion, Daniel Arapere
Malley & Co
Teranet acquisition of strategic stake in Foster Moore
Harmos Horton Lusk
Teranet Holdings LP
3ARTIALTAKEOVEROĂŠERBY7ALLEYgS for Open Country Dairy
Harmos Horton Lusk
Talleyâ€™s Group Ltd
Nathanael Starrenburg, Kelvin Preston
)ULLSCRIPTAKEOVEROĂŠERBY Foley Family Wines Ltd for Martinborough Vineyard Estates
Harmos Horton Lusk
Martinborough Vineyard Estates Ltd
Nathanael Starrenburg, Kelvin Preston
Minter Ellison Rudd Watts
1EW=EALAND5EĂ NING&OMPANY PLACEMENTOFMOFSHARES to institutional and habitual investors
Minter Ellison Rudd Watts
The New Zealand Cathy Quinn 5EĂ NING&OMPANY Ltd
Disposal of business and assets
Minter Ellison Rudd Watts
&ONĂ DENTIAL (Infrastructure services)
Three Sixty Capital Partners
Wesfarmers divestment from insurance division
Minter Ellison, Webb Henderson, Herbert Smith Freehills
Genesis Energy IPO
Graeme Quigley, Joe Windmeyer
King & Wood Mallesons, Chapman Tripp
Beijing Capital's acquisition of 7RANSPACIĂ C:ASTE0ANAGEMENT
Beijing Capital Group
Mei Fern Johnson
Allens (Sydney and Beijing OĂŞCES -UN+E (Beijing and Hong .ONGOĂŞCES
Chapman Tripp, First NZ Capital
$27.5m M&A Tata Steel sells NZ distribution arm Indian company Tata Steel sold its New Zealand distribution arm to Steel & Tube, New Zealandâ€™s largest supplier of steel products and services, for $27.5m, in continuation of its policy to exit non-core assets. DLA Phillips Fox partners Martin Thomson and Chris Liddall advised on the transaction, which followed a global slump in demand for steel. Steel & Tube has a nationwide service and distribution network in 40 locations and is listed among the top 50 companies on the NZX by market capitalisation.
$736m Capital markets Genesis Energy IPO Chapman Tripp and Russell McVeagh advised the Crown and Genesis Energy, respectively, on the IPO of *ENESIS(NERGYWHICHĂ€OATED in mid-April. Chapman Tripp and Russell McVeagh have collectively advised on every one of the listings under the governmentâ€™s new mixed-ownership model. Investors in the government privatisation of 49% of Genesis paid $1.55 per share and at the listing the Ă RSTRECORDEDPRICEWAS for an immediate gain of 17%. Initial turnover saw 21 million SHARESTRADEDINTHEĂ RST MINUTESWITHTRADES WORTHM
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NEWS / ANALYSIS
Touch wood Will a billion-dollar forestry deal be enough to reignite New Zealand’s M&A market?
“No doubt dealmakers would have observed the crossing or nudging of the $1bn mark with some satisfaction. It’s nice to be back in mega-deal territory”
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The Japanese may have just invested NZ$1bn in New Zealand’s coniferous forest industry, but dealmakers could be excused for wondering whether we’re out of the woods yet. The NZ M&A market has been a curious beast in recent years: it’s a story of steady incremental improvement but not without the occasional outbreak of misplaced optimism. Recent events suggest that we may be due for some more optimism. Japan’s Oji Holdings Corp and Innovation Network Corp recently acquired Carter Holt Harvey’s pulp and paper business for NZ$1.037bn while Australia’s Transpaciﬁc Industries has announced an agreement to sell its New Zealand business to a subsidiary of Beijing Capital Group for NZ$950m. No doubt dealmakers would have observed the crossing or nudging of the $1bn mark with some satisfaction. It’s nice to be back in megadeal territory. Chapman Tripp recently issued a publication summarising a number of cogent reasons for believing the NZ M&A landscape would unfold in the context of robust market conﬁdence this year. New Zealand’s GDP grew by 3.5% in the year to September 2013, and growth is expected to continue at around this rate over the coming year. HSBC’s chief economist for Australia and New Zealand, Paul Bloxham, recently described New Zealand as the “rock star” economy of 2014. ANZ’s monthly business outlook survey is now reﬂecting levels of business conﬁdence not seen since 1994. Not a bad case for optimism. Minter Ellison Rudd Watts partner Mark Stuart is in agreement with the general sentiment of the Chapman Tripp analysis. “The M&A team is pretty excited with the way things are panning out,” he says. “We had three pretty good years but really what we’ve seen is a lot of mid-market type of transactions in the $10m to $30m space – those have been going on over the last few years, dispersed with some larger transactions, but the big deals haven’t really been happening all that frequently. What we’re seeing now is that that mid-market space is carrying on but there are a lot more deals in the larger space as well.” Russell McVeagh’s Pip Greenwood agrees that business conﬁdence is improved, but she notes that this has not translated into a signiﬁcant spike in M&A activity. She says the forthcoming general election has added a dimension of uncertainty, although this is tempered by the stronger likelihood of the incumbent government being re-elected.
SIFTING THE CONTRASTS Russell McVeagh partner David Hoare notes that M&A volumes seem subdued when contrasted with capital markets activity – particularly the government’s high-proﬁle energy sell-downs – and suggests there may even be a causal relationship between the two. “Over the last couple of years, the investment banks have been very focused on the government sell-down processes, and a number of private equity clients are saying that they’re not getting the number of pitches they used to get because the focus has been on the capital markets stuff,” he observes. Caution still remains the order of the day. “When people look at deals they are looking at them very thoroughly,” says Stuart. “And it is still taking a while to get transactions across the line and to do the due diligence.” Hoare agrees that parties are being far more thorough and tentative about transactions. “Years ago you used to have processes where all and sundry were invited and it was all done in a short space of time and the deal was done, whereas I think people are being a bit more sophisticated about how they run a process and they’re not necessarily inviting the world into it; they’re being more selective in terms of who they bring in,” he says. Stuart has detected a slightly more accommodating approach to competitive bids, which have been eschewed in recent years. “There was a reluctance for people to contest bid processes. They didn’t really want to spend the money to potentially go through a process [and be unsuccessful] … we are seeing more transactions going through a process with multiple bidders,” he says. “People are deﬁnitely looking hard at what they’re paying for and they don’t want to overpay. But there is more competitive tension there at the moment on transactions.” So, while the actual level of M&A activity may be somewhat mixed at the moment, there is less doubt about the generally robust tone of the broader economy. It’s only a matter of time before that translates into deals. “We haven’t necessarily had that [conﬁdence] for the last few years – that positivity is good and hopefully it will last,” says Stuart. “At least when you’ve got conﬁdence in your own business and conﬁdence in where it’s going, the next thing to do is to look out for growth. You could do that organically, but the quickest way to grow is by acquisition.” NZL
4 M&A TRENDS TO WATCH 1. Warranty insurance on the rise: Lawyers report an increased use of warranty insurance, which allows, inter alia, buyers to claim losses arising from a breach of contractual warranties by the seller. More commonly used by private equity parties, warranty insurance is also reported to be increasingly used by trade buyers. 2. Strong Maori participation: Dealmakers are expecting continued strong activity by Maori representative groups in deals, not necessarily just as the principal investor but also via joint ventures and other partnerships. 3. Where are the mega deals? Deal activity has generally remained at the small/mid-market level and opinion remains divided as to whether ACONSISTENTÀOWOF large deals will emerge anytime soon. 4. Private equity hits the exit: A number of private equity players are now eyeing exits, and opinion remains divided as to whether there will be much acquisition in the local market this year. Some lawyers believe the kinds of assets currently ONOéERAREMORESUITED to trade buyers.
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NEWS / APPOINTMENTS
Appointments PARTNER APPOINTMENTS LATERAL PRACTICE AREA
Parry Field Lawyers
Business and property acquisitions and sales
Rotherhams Law (merger)
Commercial property, trust and asset management
Saunders Robinson Brown
Litigation and insurance
Banking and ÁNANCE
DLA Phillips Fox
Financial Markets Authority
Barrister, family law
Solid Energy Ltd
Consultant, trade marks
Government Superannuation Appeals Board
Minter Ellison Rudd Watts
Member of Commerce Commission
Kensington Swan’s new partnerships Kensington Swan has been busy beefing up its partnership, with announcements that Nicole Xanthopol, previously a partner in the banking department of Linklaters in London, has joined in leading the firm’s Auckland banking and finance team alongside Katie Carson. The ﬁrm also conﬁrmed that Ish Fraser and Nicky McIndoe would be joining the Wellington partnership. Fraser, who has worked at Kensington Swan for 24 years, joined long-standing Wellingtonbased partner John Meads and Auckland-based property partner Matthew Ockleston in the leadership of the ﬁrm’s property practice. McIndoe practises resource management law and is new to the ﬁrm, having previously worked at Chapman Tripp and Bond Pearce. She is a specialist resource management lawyer and has 14 years’ experience practising in this area of the law.
Lane Neave appoints Christchurch pair Lane Neave announced two appointments to its Christchurch partnership, including one returning partner. Monica Ryan, who departed Lane Neave six years ago to join the partnership at Saunders Robinson Brown, rejoined the practice, focusing on commercial property, trust and asset management and all aspects of rural and residential property
transactions. Ashley Taggart has also been promoted to the partnership after working at the practice since 2006. Aside from his work in Lane Neave’s commercial law and property practices, Taggart specialises in franchising and the acquisition and divestment of businesses.
Three new District Court judges Wellington-based Crown counsel Stephanie Brigid Edwards, lawyer Chris Sygrove and Gisborne barrister and solicitor David Sharp were all appointed District Court judges last month, the AttorneyGeneral, Christopher Finlayson, announced. Judge Edwards has been appointed a District Court judge with a jury warrant to serve in Palmerston North. She has extensive appellate advocacy experience and led the office’s project to implement the Criminal Procedure Act 2011 for Crown and departmental prosecutors. Judge Edwards was sworn in on 13 June in Wellington. Judge Sharp has been appointed to the District Court and holds a jury warrant to serve in Auckland. He has been a partner in Burnard Bull & Co in Gisborne since 1989 and has extensive litigation experience, including a large number of jury trials and frequent appearances in the summary jurisdiction. Judge Sharp was sworn in on 27 June in Gisborne.
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Finally, Judge Sygrove has been appointed as a District Court judge with jury and Family Court warrants to serve in New Plymouth. Sygrove became a sole practitioner in 1996, dealing with a wide range of legal issues during her career, with an emphasis on Family Court matters, which included a particular interest in relationship property. Judge Sygrove was sworn in on 4 July in Wellington.
Kemp Strang launches into Melbourne Sydney firm Kemp Strang has expanded into Melbourne with a new three-lawyer office targeting banking and finance work. To springboard its offering, the firm raided Norton Rose Fulbright for one special counsel, and hired two of the firm’s former senior lawyers. Kemp Strang revealed that Norton Rose banking and finance special counsel Andrew Bretherton would join its Melbourne office following the conclusion of his contract. Former Norton Rose restructuring and insolvency partner Andrew Bruce and restructuring and insolvency special counsel Emma-Jane Stevens will also join Kemp Strang’s new office. Kemp Strang formerly serviced the Melbourne market via the Kennedy Strang Legal Group, which made a decision to dissolve last year due to member firms wishing to pursue separate growth strategies.
Minter partner joins commission Commerce Minister Craig Foss announced the appointment of Minter Ellison Rudd Watts partner Anna Rawlings to the Commerce Commission last month. Rawlings had been a partner in the firm’s dispute resolution division in Auckland since 2007 where she specialised in contentious and non-contentious aspects of competition and consumer law and industry regulation. She left the firm’s partnership and joined the Commission on 9 June.
Barrister to sit on Solid Energy board Auckland-based barrister and legal consultant Rabin Rabindran has been appointed a director of Solid Energy Ltd, alongside HFK Ltd consultant Keiran Horne. “Shareholding ministers believe the new members’ skill and experience will assist the company in achieving its new strategic direction,” said State Owned Enterprises Minister Tony Ryall. Rabindran is an Aucklandbased barrister and legal consultant. He has governance experience on a number of Auckland transport and water infrastructure boards. Horne is based in Christchurch and is a consultant with HFK Ltd, a chartered accountancy practice. She is a member of the Crown Asset Management Limited Board.
SENIOR ASSOCIATE APPOINTMENTS NAME
Dr Jon Ashen
Saunders Robinson Brown
Insurance and litigation
Saunders Robinson Brown
Saunders Robinson Brown
Trusts and estates
PARTNER APPOINTMENTS BY PROMOTION NAME
Parry Field Lawyers
Commercial/business and immigration
James & Wells
James & Wells
Litigation and dispute resolution
Saunders Robinson Brown
JUDGE APPOINTMENTS NAME
Stephanie Brigid Edwards
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THE BIG INTERVIEW / KATHERINE ANDERSON
Q&A with the Council’s Counsel:
KATHERINE ANDERSON, Auckland Council GC 12 | JULY 2014
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Katherine Anderson took up the role of general counsel at the Auckland Council in February this year. Directly prior, she served as the general manager, policy, performance and legal, for the New Zealand Police in Wellington. In an interview with NZ Lawyer, Anderson explains how her involvement in the council came about, and discusses the ongoing development of the council’s in-house legal team
WHY DID YOU DECIDE TO BECOME A LAWYER? I’ll start right back at the beginning of my legal career. Like many women, I’ve done my legal training after I’d had a family. Taking the degree was a very conscious decision. I had earlier done a bachelor of arts degree from Auckland University and, following on from that, I’d worked with people who had legal training and I’d been quite impressed at the level of analysis and different approach to problem-solving that came from that training. So I had the opportunity after I had my son to study law at Victoria University in Wellington and that, for me, was just a fantastic professional transformation, to move into an area which enabled a legal role.
WHAT WAS YOUR FIRST LEGAL ROLE? From [university], I went to work at Chapman Tripp in Wellington and I worked very closely with some of the senior members of Chapman Tripp in a litigation context in Wellington, which was just an amazing start to a legal career. From there, I moved to the Crown Law ofﬁce in Wellington. Again, I was just really privileged to have the opportunity to work with the amazing people at Crown Law, including Helen Aikman QC, who is [now] deceased. I was very privileged to work with her. I did a range of work there, including a lot of ﬁsheries work, public law, health law – and really enjoyed my time there. I then left Crown Law to come to Auckland in 2001, where I worked again for Chapman Tripp but in the Auckland litigation department and in that context, my practice there as a principal at Chapman Tripp covered public law and a range of commercial litigation tax and fraud-related work. I worked on some very signiﬁcant cases, including the Diagnostic Medlab case that related to the change of diagnostic laboratory services in Auckland. I worked with Jack Hodder [QC] and Adam Ross on that case. I also worked as a second chair to Paul Davison QC in relation to a fraud case.
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THE BIG INTERVIEW / KATHERINE ANDERSON
HOW DID YOU END UP IN A GOVERNMENT DEPARTMENT? At the end of a very long trial, I happened to open up one of the legal magazines and saw an advertisement for a policy advisor, legal, at the Department of the Prime Minister and Cabinet. Because that was such an amazing opportunity, I applied for that and was very fortunate to be offered the role. During my time in the Department of the Prime Minister and Cabinet, I had a range of portfolios that I took care of – signiﬁcantly across the justice sector and in relation to some of the commercial aspects. While in that role, I worked with two prime ministers: [former] prime minister Helen Clark and Prime Minister John Key and it was a real privilege to be able to serve in that capacity and to have that insight into the decision-making processes on things that really, really mattered to New Zealand.
“In coming into this role, people both internal and external have really taken the time to express to me absolute conﬁdence in the internal legal team” Katherine Anderson AND THEN YOU TOOK ON A ROLE AT NEW ZEALAND POLICE? At the end of my three-year term at the Prime Minister and Cabinet, I had a nice reprieve back in Sicily with my husband. I returned to New Zealand in late 2010 and was very fortunate to have the New Zealand Police offer me the opportunity to work for them in relation to the Pike River Royal Commission of Inquiry. So I co-led the internal police team preparing for the Royal Commission and appeared as second chair to Simon Moore QC at the hearings in Greymouth. It was a very sobering experience and a very unique opportunity for a lawyer to participate in a royal commission. Immediately after I worked for the police in the Pike River Royal Commission, I worked for them in relation to policy matters and was a member of the
police executive responsible for leading policy and performance matters.
WHY DID YOU JOIN AUCKLAND COUNCIL? The opportunity in Auckland came up and what really attracted me to it was it’s again a very publicservice-oriented role. It’s a hugely signiﬁcant public law role in Auckland and an opportunity to come back to a city that I love and to contribute to Auckland city during a time of quite signiﬁcant transformational change. I’ve been in the role for three months.
HOW BIG IS THE IN-HOUSE TEAM AT AUCKLAND COUNCIL? It is a substantial in-house team. It’s really the size of a medium-sized law ﬁrm. We have 40 FTE’s [fulltime equivalents], including administrative staff and legal executives.
WHAT ARE SOME OF THE KEY GROWTH AREAS THAT THE COUNCIL IS FOCUSING ON RIGHT NOW? Auckland Council is, of course, itself focused on the delivery of the Auckland Plan, which is a 30-year vision for Auckland. Other signiﬁcant matters include the Long Term Plan and the Unitary Plan, which is a signiﬁcant project that covers both the planning and legal teams here at Auckland Council. That’s a signiﬁcant deliverable in terms of the legal management of the representation of council in that process.
AND WHAT ARE SOME OF THE KEY CHALLENGES, FROM A LEGAL PERSPECTIVE? It won’t be any surprise that the challenges include those in the ﬁnancial sense. The council has committed to a relatively low increase in rates over time and has expressed a desire not to increase debt – and that of course then requires a prioritisation process be undertaken in the context of the long-term plan. The public of Auckland of course will have the opportunity have input into [this].
HOW WILL THESE CHALLENGES AFFECT THE KIND OF WORK THAT YOU ARE LIKELY TO COLLABORATE WITH EXTERNAL FIRMS ON? The three broad areas that the in-house team cover
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are categorised into … we’ve got a public law team, we’ve got a litigation and regulatory team and we’ve got a commercial and property team. My predecessor, Wendy Brandon, created a very strong internal legal team that I’ve had the good fortune to inherit. In coming into this role, people both internal and external have really taken the time to express to me absolute conﬁdence in the internal legal team. So I’m taking over a large legal team that’s in really good shape and has a very strong internal and external reputation.
WHAT WILL BE SOME OF THE COUNCIL’S MEASURES FOR SUCCESS IN THE YEARS AHEAD? I’m in the process of working through with my team, setting aside priorities and deliverables, so I’m going to defer commenting on those until I’ve completed that process with my internal team. But it won’t be any surprise to you that there are some
obvious signiﬁcant legal deliverables, like seeing the Unitary Plan through the independent hearings process, which is due to be completed in mid-2016.
WHAT ARE SOME OF YOUR INTERESTS OUTSIDE OF WORK? I love travelling and I absolutely love the Auckland ease of access to beaches and outdoor places, having a garden and being able to grow [vegetables]. I’m really looking forward to, in spring, being able to get my vegetable garden up and growing and being able to bring my things that I’ve grown into the kitchen and turning them into delicious food for the family.
FINALLY, WHAT DO YOU LOVE MOST ABOUT LIVING IN AUCKLAND? It’s gobsmackingly beautiful. Everywhere you turn, you get a vista of hills or sea – and the climate’s really amenable to an outdoor lifestyle. NZL
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PROFILE / MAI CHEN
No dreams left undone November will mark 20 years since Mai Chen COFOUNDEDPUBLICLAWĂ RM&HEN3ALMER 1OWAPROMINENTINDUSTRYĂ GURE&HENTELLS Mackenzie McCartyABOUTTHEĂ RMgSFUTURE and an inescapable client shift Itâ€™s a grizzly day in late autumn when we meet in Chen Palmerâ€™s Auckland ofďŹ ce. The view outside, a swathe of harbour ensconced in deep grey storm clouds, couldnâ€™t be more different from the view within. Mai Chen, the indomitable force behind New Zealandâ€™s top public law ďŹ rm, stands beaming beside an almost life-sized bronze and glass mermaid sculpture brought back from a holiday in Greece. â€œIt is from Santorini. You can only get to the top where the houses and shops are by mule or cable car,â€? Chen explains. â€œThe mermaid was displayed against the backdrop of the sea glistening in the distance. She looked free and happy.â€? Chen bringing back a half-tonne statue, when others might have settled for a chintzy keychain, says something about her attitude to life: she does nothing half-heartedly. â€œAt the end of my life, I want to have no regrets. I want to die with
no dreams left undone,â€? she tells NZ Lawyer. â€œEverything I have wanted to do, I have done.â€? This November marks the 20th anniversary of the firm Chen co-founded with former prime minister Geoffrey Palmer, and Chen says she is optimistic about the future. â€œItâ€™s wonderful to watch the next generation of lawyers [at] Chen Palmer,â€? she says. â€œI wonâ€™t be here in 20 years; they will. They are the succession.â€? Chen adds that these days she feels prepared to take a step back. â€œIt was lovely to say to my staff today, â€˜Iâ€™m going to work from home from 7am to 9am every morning I can. Then Iâ€™m going for a run with my dog. Iâ€™ll come into work after thatâ€™. Running 22 lawyers takes a bit of doing, but I can now delegate the day-to-day, because I have a great senior team able to step in. Theyâ€™re ready and so am I.â€? Despite such comments, Chen, 50, is hardly winding down. In May, she published her latest book, Transforming Auckland: The Creation of Auckland Council, and sheâ€™s already stuck into the second edition of her highly successful guide to public law, the Public Law Toolbox. She isnâ€™t cutting down the number of cases sheâ€™s working on either. â€œIâ€™m aware that I am only as good as my last job,â€? she
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“Instinctively, I knew I had to come to Auckland [from Wellington] – it was the right thing to do. It has energised me and given my legal career new impetus and focus”
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Most common language proﬁciencies for NZ lawyers (other than English)
Maori Deutsche [German]
Afrikaans Español [Spanish]
Samoan Bahasa Malaysia [Malaysian]
[Urdu] Source: NZ Law Society
says. “I just have to keep working at being good at the law and not being distracted. So I don’t want to start new things; I just want to do well what I have already started.”
A NEW OFFICE One of Chen’s more recent managerial decisions involved a big step for the firm when it opened a new office last year. It has proved to be a positive move for the firm and saw Chen move from Wellington to Auckland. “Instinctively, I knew I had to come to Auckland [from Wellington] – it was the right thing to do. It has energised me and given my legal career new impetus and focus,” she says. Prior to launching the Auckland practice, Chen had calculated that it would take around three years for the office to reach the size of the firm’s Wellington headquarters. In fact, after one year, they’ve maxed out. At the time of writing, staff were eagerly awaiting a meeting with ‘space consultants’ to figure out how to fit everyone in. “But it’s nice,” says Chen. “We’re all together and we’ve got 12 lawyers and then we’ve got support staff wrapped around that.” In building the practice, Chen says finding quality staff is a constant struggle. “The greatest difficulty is finding lawyers who are not just great black-letter lawyers, but who also understand public policy and politics and the media, have a wide range of contacts and can also litigate … It’s hard to find that combination in one person. But you can hire people with any one of those skills and bring them together in a team and I still have a dream about a multidisciplinary firm.”
CLIENT SHIFTS Chen says another issue involves balancing the need for quality legal advisers with New Zealand’s changing demographics. “Law ﬁrms need great Asian lawyers,” she says. “I won’t hire somebody just because they can speak Mandarin or Cantonese. Frankly, if I need an interpreter, I can get one. The real issue is to ﬁnd Asian lawyers who are great lawyers. That’s always the constant search for me.” Chen adds that including Asian lawyers as part of legal teams is important because of the people-to-people connection. “[Some] people feel more comfortable taking
advice from somebody that’s like them, whether that’s a gender issue or an ethnicity issue. When different language and culture is involved, as there often is with Asians, this becomes more pronounced.” Ethnicity issues will always be a sensitive area for firm leadership, and many may be reluctant to have a conversation about it, but Chen says firms should consider what Asian culture puts a high priority on: “Asian culture is similar to the Maori culture in venerating ancestors, and being very whanau-based. There is paramount emphasis on long-term relationships and trust.” Almost one in four Aucklanders now identify as Asian, a fact that law ﬁrms ignore at their peril, according to Chen. “Lawyers need to go where their client base is going, and clearly we’ve got a large influx of Asian immigrants into New Zealand,” she says. “We have to think about what that means for New Zealand. “I think it’s an important part of the increasing difference between Auckland and Wellington. When we first started Chen Palmer 20 years ago, we spent a lot of time explaining Wellington to Auckland. I think that is truer now than ever before. I think Auckland is becoming more and more different from Wellington, not less so, and I think the unique demographic here is a material part of that.” Asian immigrants, as well as those from other, non-English-speaking parts of the world, face unique legal problems, Chen explains. “They have issues with respect to business regulation, but they also have issues understanding the legal culture [in New Zealand]. In New Zealand there are laws and you have to follow them. “I have to say that a signiﬁcant part of my practice with Asian clients is explaining to them the laws and rules that they have to comply with when they have gotten into trouble.” Chen believes stereotypes also present Asian immigrants with challenges. “Let me give you an example,” says Chen. “I was approached by one of the top 25 companies in the world. They happen to be an Asian company. They needed supply of a particular product and they didn’t know how to get it. I arranged for them to meet with [providers] to try to enter into contracts for supply.
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“One Pakeha provider arrived and was rude to the clients: ‘How do I know you’re legitimate? I don’t want to work with anybody who’s going to come, rip me off and then take off. There are so many Asians like you who come and don’t really make a contribution to this country’. It was very negative. My Asian clients were shocked. When you’re in the top 25 companies in the world, you’re not used to being treated like this. “I was firm with him. I said, ‘These people are part of a company that is in the top 25 in the world. I wouldn’t be acting for them if they were not people of goodwill and honour.”
SOURCES OF INSPIRATION Chen says helping immigrant clients resonates with her, largely because of her own life experience. “When I first came to this country, I couldn’t speak English and we didn’t have any resources. We didn’t know anybody. To be in a position now where I can help people – it’s fantastic.” The fact that she can ﬁnd the time to provide such help, among her duties of managing a national law firm, writing a book, being a mother and taking on complex cases (she argued the Phillipstown School case last year while
“Success is not permanent... It is about keeping ahead of the wave. I am relentlessly trying to make myself and the whole firm better lawyers” simultaneously setting up the New Zealand Asian Leaders Association) speaks of a determination that few could match. “The thing that motivates me is that I am on this earth for a short time and I just want to make as much of a difference as I can,” she says. “I am feeling the strongest and most motivated I have ever felt. I want to do less and concentrate harder. “I am also really clear that success is not permanent and it is not static. It is about keeping ahead of the wave. I am relentlessly trying to make myself and the whole ﬁrm better lawyers.” NZL
MAI CHEN’S KEY APPEARANCES Chen has advised...
Auckland Institute of Technology (a polytechnic) on becoming Auckland University of Technology; Wellington Polytechnic on merging with Massey University; and Dunedin College of Education on a proposed merger with the University of Otago
Regulatory and government risks of purchasing EME’s shares in Contact Energy
Acting for Mercury Energy in the Ministerial Inquiry on the Auckland Energy Supply Crisis
Reviewing the Privacy Act 1993 for the Associate Minister of Justice in 2000, and appearing in the privacy case of Hosking v Runting & Ors in the Court of Appeal
Advising the Ministry of Health on the implications of the Human Rights Amendment Bill 2001, and the Treasury on aspects of the Public Finance Act
Her other appearances include: Unison Networks Ltd v Commerce Commission  1 NZLR 42 (SC) He Maunga Rongo: Report on the Central North Island Claims (WAI 1200, Wellington Legislation Direct, 2008) (Waitangi Tribunal) Attorney-General v Unitec Institute of Technology and Anor  1 NZLR 750 (CA) Unitec Institute of Technology v Attorney-General  1 NZLR 65 (HC) Attorney-General v Salisbury  NZHC 3348
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COVER FEATURE / HOT LIST 2014
7HE1=SURVEYWASPUTTOGETHERINCOOPERATIONWITHLAWÁRMSWHICH SUPPLIEDSTAéNUMBERSDETAILINGHOWCURRENTPARTNERANDASSOCIATENUMBERS MEASUREAGAINSTPASTLAWYERNUMBERS:HERETHESENUMBERSWERENOT AVAILABLETHE1=RELIEDONHEADCOUNTSPUBLISHEDINTHEÁRMgSMARKETING MATERIALSPROVIDEDTHEYWEREUPTODATE 20 | JULY 2014
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NZ’S BIGGEST LAW FIRMS – BY LAWYER COUNT Firm
DLA Phillips Fox
James & Wells
Grimshaw & Co
Fletcher Vautier Moore
Anderson Creagh Lai
Partners FY 2014
Partners FY 2013
Partners FY 2012
Lawyers FY 2014
Lawyers FY 2013
Lawyers FY 2012
The NZ20 does not purport to be an exhaustive list of every firm in New Zealand and their sizes. Some firms did not wish to participate in the survey, while others were in a state of transition and total lawyer numbers would not have been clear by the time of print. NZ Lawyer also acknowledges that lawyer numbers are just one of the many ways to measure the size of firms relative to each other. Other factors such as revenue, revenue growth and size and scale of clients are of equal importance in determining which firms are bigger or smaller than their competitors. NZ Lawyer has published these numbers as they were supplied by law firms and does so with the assumption that they are correct and current. JULY 2014 | 21
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COVER FEATURE / HOT LIST 2014
There are no major surprises to unveil in this year’s NZ20 survey. The survey, which measures the size of ﬁrms based on their number of partners and nonpartnered lawyers, shows everything a New Zealand lawyer practising in the country’s commercial space would come to think: the country’s six biggest ﬁrms three years ago are still its biggest ﬁrms today. Perhaps the only surprises are in looking at who is at the very top of the rankings. Lawyer and partner numbers are just one of the many ways to rank a ﬁrm’s size, and they reveal nothing about the quality of its services or its relationships with strategic clients, but they do give an idea of the resources available to each ﬁrm. There’s no denying that greater size can be an attractive feature for many large companies, and it is thus interesting to note that Simpson Grierson currently sits atop the rankings for total legal staff. Change the ranking system to take into account partnership size only and Chapman Tripp remains the country’s biggest ﬁrm, a little way in front of Simpson Grierson, but it is clear that the latter has made up a lot of ground and has been growing its partnership faster in recent years. That aside, the period through 2013 into early 2014 has remained tough for most New Zealand ﬁrms, and the NZ20 survey tells a story of reduced headcount and subdued growth for many ﬁrms, which have reported to NZ Lawyer, conﬁdentially, that they have seen little in the way of increasing revenues. There are exceptions to this rule, of course, as there always are in every market, and it is fascinating that some of the ﬁrms that expanded last year are the country’s mid-tier players. This follows a trend that has continued for some years now, in which key midtier ﬁrms have been outperforming their top-tier rivals in terms of growth in revenue and growth in lawyer numbers.
URBAN CENTRES WITH MOST LAWYERS
‘BIG THREE’ CONCEPT VANISHES Lawyers will hardly be surprised that the idea of a ‘Big Three’, formed by Chapman Tripp, Bell Gully and Russell McVeagh, has fallen somewhat into history. This is widely known within the industry, but the gap between the resources of these ﬁrms and rivals such as Minter Ellison Rudd Watts, Buddle Findlay and others appears to have narrowed further. Simpson Grierson’s place among the biggest ﬁrms in the country is fairly clear, and Buddle Findlay can also stake a claim to being a major force in the industry. Ranked by partner numbers, its 42 partners edge out Russell McVeagh’s 37, although
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TAURANGA 5 ROTORUA 10
PALMERSTON NORTH 14 LOWER HUTT
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COVER FEATURE / HOT LIST 2014
Russell McVeagh still has more lawyers in total. This shows that the narrative of a ‘Big Three’ no longer has practical signiﬁcance, much as has been the case for the past few years, since the top-tier end of the legal services market is no longer as clear-cut as it was historically.
for that matter – only describe a small part of what characterises a ﬁrm’s offering. “It’s more useful to look at individual practice areas and what works for them; you’ve got to be ﬂexible. We haven’t changed in recent years in any signiﬁcant way – it varies from time to time and practice to practice.” NZL
LEVERAGE AT FIRMS
Perhaps the most pervasive trend in New Zealand law ﬁrms this year, and in fact over the preceding years, is that they appear to be recruiting few new staff. The proportion of ﬁrms that are growing seems to be a minute selection that are the exception to a highly rigid rule. Bell Gully is a case in point. The ﬁrm’s number of non-partner lawyers has slipped from 157 in 2012 to 145 in 2014. This is just as partner numbers have stayed fairly stable, going from 45 in 2012 to 46 in 2014. These numbers hardly speak of a ﬁrm in major decline, but hint at a wider trend of reduced hiring. Legal staff numbers at Kensington Swan have also hit a modest decline. In 2012, the ﬁrm had 32 partners, but this number has slipped to 28 this year. Non-partner lawyers have also decreased, from 96 two years ago to 87 in May 2014. Again, the decrease is far from noteworthy. It does little to suggest there has been a mass exodus of talent from the ﬁrm, but rather that those who have left have not been rapidly replaced.
Lawyers per partner
Grimshaw & Co
DLA Phillips Fox
James & Wells
Fletcher Vautier Moore
Anderson Creagh Lai
A MATTER OF LEVERAGE Another interesting trend is that, in spite of falling lawyer numbers at ﬁrms, leverage levels appear not to have been affected in any meaningful way. Indeed, NZ Lawyer reported in April that most ﬁrms were seeing little signs of a major shift. Chapman Tripp managing partner Andrew Poole says his ﬁrm’s leverage ﬁgures have consistently sat at around the mark of 3 and 3.5 since he joined. “There has been no material change. We’re not thinking about any material downsizing of the ﬁrm in NZ,” he says. Russell McVeagh’s Gary McDiarmid remains proud that his ﬁrm still has a high leverage ﬁgure. “Our leverage [ﬁgure] … can get over ﬁve. There is not a top law ﬁrm in the world that doesn’t have a good level of leverage. It is great value to have stuff that frankly doesn’t need to be done at the senior level done at a level further down.” But perhaps some perspective is needed. As Simpson Grierson chairman Kevin Jaffe points out, leverage numbers – and lawyer and partner numbers
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nominations now open
Pullman hotel, Auckland Thursday 6th november 2014 www.lawawards.co.nz NZLAW2014_Fullpage.indd 1
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FEATURE / INTELLECTUAL PROPERTY
The new intellectuals Trans-Tasman legal alignment and the Madrid Protocol are putting an increased focus on non-commoditised, high-value IP advice. Ben Abbott reports In September this year, New Zealand’s IP lawyers will welcome a new Patent Act. More than two decades in the making, the Act is designed to update New Zealand’s ageing 1953 legislation, bringing it in line with other comparable jurisdictions. Lawyers say one key change will see the expansion of what can be examined under patent law, improving what has been a somewhat ‘lenient’ approach to applications. It will also have another effect. For some time now, New Zealand has watched the practice of IP law align ever more closely with a larger economy on its doorstep – Australia. The Patent Act is another small step in that direction. And it is not the largest. The TransTasman Mutual Recognition Arrangement,
“We think there is a signiﬁcant untapped domestic client base in Sydney, and it is a good opportunity to grow our practice” which came into force in 1998, already allows lawyers of both countries to ﬁle patent registrations in New Zealand and Australia, provided the requisite fee is paid. However, more changes on the horizon are set to increasingly pit New Zealand IP ﬁrms head-to-head against Australian ﬁrms, in an escalation of a battle already raging.
TRANS-TASMAN TUSSLE As AJ Park partner Michael Brown explains, the Trans-Tasman Mutual Recognition
Arrangement is by no means a carte blanche for lawyers on either side of the sea to ﬁle patents in their neighbouring jurisdiction. There are still hurdles and differences. “Australia has much more stringent CPE requirements for patent attorneys. In New Zealand, there are no speciﬁc CPE requirements for patent attorneys.” However, those differences are being eroded – fast. Brown says this will come in the form of two major changes to the way the patent system in Australasia works.
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Richard Watts, Simpson Grierson
Michael Brown, AJ Park
Sheana Wheeldon, Kensington Swan
â€œIn the future there will not be separate Australian and New Zealand patent qualiďŹ cations; there will be joint qualiďŹ cations covering both countries.â€? This will mean patent attorneys will be regulated by the same rules. It follows that this will mean meatier CPE requirements for local NZ attorneys as the regimes align. â€œAnother thing will be a single patent application process; rather than having to ďŹ le separately in each country, you will be able to ďŹ le in one ofďŹ ce or another, and choose whether that will have effect in one or both countries.â€? Though technically there will still be two applications, these will be examined by one examiner covering off the ramiďŹ cations of both countriesâ€™ laws. While a pilot scheme was due early next year, lawyers expect this could be later. The changes are designed to simplify the system for businesses, and to help deal with a backlog. Although the measures may appear like common sense to those outside IP â€“ considering the similarities and proximity of the two countries â€“ such changes mean a serious threat to long-established legal business models. Those ďŹ rms, typically smaller players with commoditised patent application work, are set to feel the pinch as Australian ďŹ rms dispense with their need for local counsel. However, the truth is, this battle has already begun. Australian ďŹ rms have been moving in on the NZ patent space for some
time, cannibalising local work. The likes of Davies Collison Cave and GrifďŹ th Hack are some of Australiaâ€™s leading exports. And this does not just affect patent work. New Zealand lawyers have noticed for some time that Australian ďŹ rms are pursuing New Zealand work themselves. â€œA big trend for New Zealand IP lawyers is the expansion of Australian IP lawyers into what we see as specialised New Zealand advice,â€? says Kensington Swan partner Sheana Wheeldon. â€œThis started
she says. However, overall she is â€œdismayedâ€? by the development. â€œI do not think clients are well served in these situations, and of course it does mean New Zealand IP lawyers do not get the work.â€? There are some questions over whether New Zealand will be the winner in this Trans-Tasman tussle. â€œI think while the New Zealand market will remain distinct, we are seeing a more Australasian approach to IP portfolios, meaning we are seeing more of the
IP lawyers are not immune to the growth of in-house teams. With more work being done in-house, there is a tighter rein on expenditure. Kensington Swanâ€™s Sheana :HEELDONSAYSTHISCANSOMETIMESHAVEUNDESIRABLEEĂŠECTSh,N,3THISMANIFESTSIN CLIENTSĂ LINGTHEIROWNTRADEMARKSiSHEEXPLAINSh7HOUGHTHISISNOTALWAYSVERY EĂŠECTIVEi+OWEVERTHEREAREUPSIDESh,TISGREATTOWORKWITHINHOUSECOUNSELAND WHENYOUDEVELOPADEGREEOFMUTUALTRUSTTHATISAVERYEĂŞCIENTMODELi
many years ago with Australian ďŹ rms ďŹ ling directly at IPONZ, but in more recent times some Australian practitioners are routinely dealing with contentious matters from trademark oppositions to cease and desist letters based on New Zealand law.â€? Wheeldon says at times these lawyers are unfamiliar with New Zealand practice or do not fully appreciate how the legislation differs from Australian law. â€œThis has occasionally led us to achieve good wins or tactical advantages for clients when a lawyer on the other side trips up,â€?
Australian ďŹ rms in New Zealand, and vice versa, with the one-stop-shop concept appealing to some clients,â€? Simpson Grierson partner Richard Watts says.
AUSTRALIAN TANGO New Zealand ďŹ rms arenâ€™t about to take this lying down â€“ they are ďŹ ghting back. AJ Park is one of New Zealandâ€™s dominant players in IP. A year ago, the ďŹ rm opened an ofďŹ ce in Sydney, merging with a ďŹ rm started by a former AJ Park lawyer from Wellington. Australia is seen as such
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FEATURE / INTELLECTUAL PROPERTY
AJ Park aims to differentiate its service from Australian-sourced competitors in New Zealand by having a specialist team, who propagate legal knowledge throughout the ďŹ rm. Some are trained and qualiďŹ ed in Australia. â€œWe see that as a much stronger way to do it to make sure that you are doing work the way it should be done,â€? he says.
THE MADRID PROTOCOL
GETTING â€˜INTAâ€™ IT Every year, the New Zealand IP legal market empties out for a week or more as lawyers make the essential annual pilgrimage to the biggest event there is: INTA. +ELDINTHE86INFOUROUTOFEVERYĂ VEYEARSTHE,NTERNATIONAL7RADEMARK$SSOCIATION CONFERENCETHISYEARWASHELDFORTHEĂ RSTTIMEIN$SIAINWHATISCONSIDEREDBY1EW =EALANDgSTOPPRACTITIONERSASAfTIMELYgSTOPINTHEREGIONALHUBOF+ONG.ONG :HILETHEREISAFORMIDABLEEDUCATIONALPROGRAMATTHECONFERENCETOLEADERSINTHE Ă ELDTHISISOFTENSECONDARYWHAT,17$REPRESENTSINSTEADISACHANCETOMEETWITHA LONGLISTOFMULTINATIONALCLIENTSFROMALLAROUNDTHEWORLD h$LOTOFBIGINTERNATIONALCLIENTSUSE,17$ASACHANCETOMEETWITHLOCALCOUNSELi 6IMPSON *RIERSON PARTNER 5ICHARD :ATTS EXPLAINS h,T HAS BECOME AN ONGOING EXPECTATIONINTHEGLOBAL,3MARKETTHATYOUWILLALWAYSBEAVAILABLEAT,17$i )ORLAWYERSINSMALLERJURISDICTIONSLIKE1EW=EALANDTHISISEVENMOREIMPORTANT$S they admit, larger multinationals will often hold a single meeting with their global COUNSELANDMAYNOTfCAREENOUGHABOUT1EW=EALANDgTOMAKEADEDICATEDTRIP :ATTSAND.ENSINGTON6WANgS6HEANA:HEELDONBOTHATTENDEDWHILE%ROWNSAYS $-3ARKSENTADELEGATIONOFEIGHTh:EĂ NDITUSEFULBECAUSEWEHAVEABIGINTERNATIONAL CLIENTBASEkITHELPSKEEPUSABREASTOFDEVELOPMENTSANDTRENDSANDISAPLACETO INTERACTWITHCLIENTSINONELOCATIONkBOTHCORPORATESANDASSOCIATEĂ RMSi 2FTENĂ RMSSPEAKATSEMINARSONLOCALISSUESBUTTHEMEETINGSCHEDULEISHECTIC One partner suggested they were tied up the entire time from 7:30am to 2:30am.
a great opportunity that Michael Brown labels AJ Park an Australasian ďŹ rm, with ofďŹ ces in Sydney, Auckland and Wellington. Indeed, AJ Parkâ€™s presence is not just a small ďŹ ling ofďŹ ce. The ďŹ rm conducts a number of litigation matters using the Australian ofďŹ ce, and is set to add scale in coming years. It has only recently recruited a new litigator and a commercial lawyer. Hudson Gavin Martin is another New Zealand-sourced Australasian player.
Brown says the key opportunity in Australia is ďŹ rm growth. â€œOnce you get to a certain size in a reasonably speciďŹ c ďŹ eld, you need to look elsewhere for new opportunities,â€? he says. â€œThings are bound to come up that prevent you from growing in your home jurisdiction, like conďŹ‚icts. We think there is a signiďŹ cant untapped domestic client base in Sydney, and it is a good opportunity to grow our practice.â€?
Adding to challenges presented by the inďŹ‚ux of trans-Tasman advice, the Madrid Protocol, to which New Zealand became a signatory in December 2012, has been dreaded due to the potential for decimating local ďŹ ling work. The agreement allows agents in other countries to ďŹ le with effect in New Zealand, a circumstance not advantageous for a jurisdiction that is by far a net importer of IP. Firms like AJ Park and Henry Hughes that focus solely on IP work have been wary of its introduction, with AJ Park for one strategically preparing over a period of 10 years. The ďŹ rm has built a focus on local client work and grown its domestic base. However, the impact â€“ at least among those ďŹ rms that were well prepared â€“ has been minimal. â€œWe had a certain expectation of the effect it might have had, but it has not been nearly as signiďŹ cant as expected,â€? says Brown. AJ Park is buffered by the range of other services it provides, meaning the impact has been absorbed by the business. And to the surprise of many local lawyers, the difference has at least to some extent been made up by ďŹ lings from local New Zealand clients. â€œThere has been a bigger uptake of Madrid by New Zealand-based clients than we thought there would be, so it has cancelled out the reduction in work from overseas clients,â€? Brown says. Watts agrees. â€œThere have deďŹ nitely been more trademarks ďŹ led in New Zealand,â€? he says. AJ Park is also promoting available related services for clients, such as IP strategy and searches, and competitive
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watches. “Like anything, there are opportunities that come from these things as well,” Brown says.
THE VALUE CHAIN While Australian competition is seen as a more critical trend when compared with Madrid, both developments – combined with improvements to technology providing low-cost ﬁling options – mean ﬁrms are now having to move up the value chain. “There has been a signiﬁcant drop-off in commodities work, but we have found this has been balanced by an increase in trademark oppositions and disputes,” says Watts. “What it has tended to do is play to the advantage of high-end providers, who do more litigation, and to the disadvantage of those who rely on ﬁlings.” Brown agrees. “One thing that comes up more with more sophisticated clients is they are wanting more strategy, global IP portfolio management and so on; it is all very value-driven, with clients interested in the added value we can provide, even in what would have traditionally been more commodity-style work.” Top-end lawyers in this space question the advent of online application providers, which tend to provide the ﬁling minus the strategy. “To an unsophisticated client they may see that as very appealing, but actually they can ﬁnd out downstream that, while it is ﬁne technically, it may not have been done in the countries that are really important. In the case of some IP rights, that can be absolutely fatal.” Likewise, Brown says clients can ﬁnd they are not ﬁling the right thing at the right time, meaning options later become limited or unavailable. And perhaps higher-end ﬁrms will move to capitalise on this shift to highervalue work. For some time now, there has been a move by top-tier ﬁrms to outsource much of their IP work, favouring the growth of boutiques. A key example was Hudson Gavin Martin, with start-up talent from Bell Gully and Russell McVeagh. However, the cycle may be turning, with Kensington Swan, for one, building
its IP capabilities. Simpson Grierson has also chosen to maintain a signiﬁcant department. Brown suggests this is cyclical, and top tiers may indeed choose to build. “We have seen many cycles over the years; many teams have grown and then reduced right back down again.” Brown says some of the patent, trademark and design work “can coexist and do” at large full-service ﬁrms, but it is quite a different style of work. He says specialists ﬁt in particularly when it comes to technical coverage. “We have clients in a variety of technical areas, and it would be very difﬁcult with a small IP team to provide the comprehensive coverage of all those areas. You need to understand the law, but you also need to understand the technology.”
IP COMES OF AGE New Zealand is a small market, one populated by a relatively small number of IP lawyers. This makes the ﬁeld one that is very ‘collegial’, lawyers say. “It is a relatively small space so all senior IP practitioners know each other, and when we ﬁnd ourselves on opposite sides of a case we can usually communicate pretty well and have a similar assessment of the merits,” Wheeldon says.
the ﬁrm also seeing more work ﬂowing from international trademark protection programs of local clients who have new export opportunities. Simpson Grierson’s Richard Watts, meanwhile, has noted that there has been a marked increase in activity in the pharmaceutical sector in recent years, particularly in the commercialisation of medicines. Watts has been a key adviser to a number of pharmaceutical clients in their dealings with New Zealand’s Crown agency Pharmac, in negotiations on new products coming to market. He says he expects the uptake of pharma-related IP work to continue this year, after kicking off with the Novartis and GSK vaccine/ oncology asset swap and the potential Pﬁzer-AstraZeneca merger. And then there is the long-awaited corporate-driven IP work. “There seems to be more general positivity with New Zealand-based businesses, and deﬁnitely globally there is an increase in M&A activity, and that is likely to ﬂow on into New Zealand,” explains Brown. “For M&A work, we tend to get brought in on the due diligence side; we’ve seen an increase in that area, and that will continue.” Lawyers have also noticed clients buying into the value of IP much more
“A big trend for New Zealand IP lawyers is the expansion of Australian IP lawyers into what we see as specialised New Zealand advice” All are looking forward to a positive year in 2014 for IP practices. “I am cautiously optimistic that 2014 will continue to bring solid workﬂows across a variety of sectors and including ongoing work from signiﬁcant overseas clients,” Wheeldon says. Kensington Swan points to a noticeable increase in contentious matters speciﬁcally in the past 12 months, as clients invest in enforcing their rights, with
than in the past. “People are starting to appreciate the value of IP. There is a much greater understanding among businesses, and a lot more attention being focused on it, which is very positive,” says Watts. “While ﬁve years ago I may have had to convince them to focus on their IP, now businesses are actively looking for a strategy to commercialise their own IP.” And that, lawyers say, is good news – for lawyers on both sides of the Tasman. NZL
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KIWI LAWYERS IN THE MIDDLE EAST
Kiwi lawyers in the Middle East
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The Middle East: for some, it’s a mysterious land – the world of Alladin, Ali Baba and a thousand Arabian nights. For others, it’s an emerging global player with an expanding mixture of opportunities for businesses, people and, particularly, law ﬁrms. The lure of the region’s more prosperous countries such as Bahrain, Qatar, Kuwait and the UAE has propelled many Kiwi lawyers to move there. The transaction ﬂow in many of these countries – boosted by a thriving oil and gas sector, as well as governments and investors that are looking to diversify into other industries – promises an enthralling opportunity for commercial lawyers. But does the promise of a highly stimulating, not to mention well-paid, opportunity in the Middle East match the reality? That’s a question NZ Lawyer posed to two prominent Kiwi lawyers practising in the region, one in Qatar and the other in the UAE. The insights they reveal about life in these countries are as fascinating as they are steeped in the romanticism that the region has often inspired in the Western imagination.
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KIWI LAWYERS IN THE MIDDLE EAST
Drawn to Dubai
Steven Henderson is one of the many Kiwi lawyers now practising in Dubai. He tells NZ Lawyer why the market has the ability to surprise and stimulate even the most experienced lawyers
UAE FACT FILE 1MNSJ?RGML 9 million #GEECQRAGRW Dubai (2 million people) -C?BGLEQCARMPQ Petroleum and natural gas exports, construction, tourism, retail "TCP?ECQSKKCP RCKNCP?RSPCQ 45 degrees
8FCL4RCTCL)CLBCPQML¿PQR?PPGTCBGL%S@?G?RRFC end of 2005, half the current city wasn’t there yet – at least not some of its now-famous buildings and landmarks. “To say a lot has changed would be an understatement,” Henderson says. “I arrived during a booming period of development. The scale and scope of some of the projects that were being undertaken was just staggering.” As a real estate lawyer, Henderson would know. Having been in the United Arab Emirates just short of nine years, the Kiwi lawyer has been at the forefront of one of the modern world’s unprecedented booms. Dubai’s evolution from backwater to prominent global commercial centre has largely come in the last 20 years, but especially in the years since 2000. Henderson says that being in this environment has been highly stimulating. “When I ﬁrst arrived, there was very much an emerging-market mentality. Laws were still being established and, in some cases, there weren’t laws at all. “Things were developing super fast and then the GFC saw a number of projects being stalled and restructured, although even during this time there was still a lot of development that carried on. It has
now come full circle and is back to being fast-paced and frantic again.” Henderson admits that his path to practising in Dubai has been slightly different to the route many lawyers with an eye to working overseas may have taken, where a lawyer practises in New Zealand for a few years before venturing off to London, Hong Kong or whichever city their heart desires and then returns home. Instead, Henderson got his ﬁrst position with Russell McVeagh’s Auckland ofﬁce where he worked for eight years on the ﬁrm’s real estate team. It was only when his wife, a structural engineer, was headhunted by a company in Dubai that the possibility of Henderson practising overseas came up. “I contacted all the people I knew overseas and put some feelers out. Soon I got a role at Clifford Chance to set up their real estate practice in the Middle East, and then moved to Baker & McKenzie after a few years, where I am partner (and head of the ﬁrm’s UAE real estate practice).”
THE DUBAI OPPORTUNITY Considering the boom in Dubai’s development space, Henderson says the work he has been engaged in has been broad. “A lot of my practice is basically more traditional real estate transactions. Some of the massive greenﬁeld sites they have here mean you’re often advising on the development of masterplanned communities that can be up to 25 square kilometres. I come in at the start to advise on the many facets of these projects, like how they are going to be structured. Apart from that, it’s a real mix. You’re involved with a lot of hotels.” Being involved in such transactions can be challenging, according to Henderson. Part of that challenge is that Dubai remains an emerging market, where the legal framework is still young. A lot of laws are reactive, as opposed to proactive, and in the real estate space many have only emerged over the last three to four years. This is an obvious contrast to New Zealand’s wellestablished legal framework, but Henderson says this challenge is part of what makes practising in the UAE an adventure. Because laws are new and their mechanism of enforcement, such as regulatory bodies, are continually evolving, lawyers have to be adaptable. “The legal space is ﬁnding its feet, in many ways. There is still a difference between the black letter of the law and what you will often see happening in
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KIWI LAWYERS IN THE MIDDLE EAST
â€œThe legal space is ďŹ nding its feet ... You have to be immersed in the industry and know how things operateâ€?
practice. You have to be immersed in the industry and know how things operate. You cannot simply read the law and advise strictly from that. Itâ€™s a lot more about how the law is interpreted and applied in practice.â€? As stimulating as this environment has been, Henderson admits it has been hard to make the adjustment. â€œItâ€™s a totally different legal system. Itâ€™s civil law. Itâ€™s a different approach, different mentality. It takes a while to get your feet under the desk and feel comfortable. I was lucky at the time; it sounds crazy, but the lack of laws helped in some ways because you just had to go back to ďŹ rst principles. If the law didnâ€™t prescribe how something works, we would have to put a structure in place that did work.â€? Henderson cites strata laws as an example. Until 2010, Dubai had no real laws governing the various arrangements there normally need to be between buildings housing properties with multiple owners. Properties were being sold to people without any real constructs around them. No strata laws existed. As a consequence, lawyers initially had to create these structures themselves, on a contractual level. â€œIt was daunting, but I really enjoyed it, because you have to go back to basics and create a lot of these legal constructs,â€? Henderson says.
LIFE IN THE MIDDLE EAST Living in Dubai, Henderson says, is always interesting. On the one hand, the depth of real estate projects means the city is in a constant ďŹ‚ux, but the quieter sides to the city offer their own attraction. Henderson and his wife, along with their two girls, live away from the glitz and glamour of Dubaiâ€™s hotel skyscrapers, preferring one of the cityâ€™s older
neighbourhoods. Their house is close to the beach, and parks abound. â€œFamily and friends back home think we live in the desert, but there is lots of greenery,â€? Henderson says. Being closer to Africa, Europe and Asia than they would be in New Zealand, Hendersonâ€™s family also get the chance to travel frequently. This rounds off what is already a cosmopolitan experience in Dubai. â€œThe city is an international melting pot,â€? he says. â€œThe Emirati population probably makes up less than 10% of the city, so you have many people from different backgrounds and cultures. You could stick in your little NZ expat bubble over here, but we have friends from just about everywhere. My daughter has about 10 different nationalities in her small nursery school class. Itâ€™s great.â€? Despite this, Henderson admits that it is hard not to miss New Zealand. He says it is challenging not to be close to friends and family and he misses the clean and green environment of home. Because Dubai is under a lot of development, which is exciting most of the time, it has nothing near the chilled-out, relaxed atmosphere that makes New Zealand a great place to live all year round, Henderson says. TrafďŹ c in Dubai is also a frequent irritation. Henderson doesnâ€™t have to travel far for his daily commute, but when he is required to get across the city it can be frustrating. â€œThe driving here is pretty atrocious. You are constantly in defensive driving mode. There is a lot of trafďŹ c, and considering that you often have eight lanes in both directions, itâ€™s remarkable that it still gets snarled up. Small things can cause chaos. It rained heavily a few months ago and no one was used to it. The whole city shut down. There were hundreds of accidents.â€? NZL
MAKING A MIDDLE EAST EXPERIENCE WORK If you are thinking of coming to Dubai, come with your eyes open, Henderson advises. The legal market, although progressing, is relatively small. There are many global Ă RMSTHEREBUTTHEYAREFARFROMTHESCALEASSOCIATEDWITH London and New York. The pay also tends to be higher than many opportunities in New Zealand and Australia, helped by the fact that there is no tax. â€œThe problem is that you get a lot of indirect taxes, so you pay for everything,â€? Henderson says. â€œYou pay for health care and schooling, and it is expensive. Housing COSTSAREOĂŠTHECHART$LARGEPARTOFYOURSALARYWOULD go to housing. In reality, you need to factor in these other components.â€?
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Finding comfort in Qatar Kiwi lawyer Richard Parris has been MANAGINGHISĂ RMgS4ATARPRACTICEFOR THELASTTHREEYEARSANDEXPLAINSWHAT ITISLIKEPRACTISINGINACOUNTRYWITHTHE WORLDgSRICHESTCITIZENS QATAR FACT FILE Â„ Population: 2 million Â„ Capital City: Doha Â„ Leading sectors: PETROLEUMNATURALGAS energy Â„ Unemployment rate: 0.1% (2013) Â„ Surprise stat: 14% of Qatari HOUSEHOLDSARE dollar millionaires
Richard Parrisâ€™s career has had an inextricable relationship with fate. What was supposed to be a short stint practising overseas has turned into a life spent practising in multiple jurisdictions around the world, including the country he has lived in for the last three years: Qatar. The Kiwi is the managing partner of global ďŹ rm Clifford Chanceâ€™s ďŹ‚edgling Doha ofďŹ ce, launched in 2011, but the lawyer says that his path to taking on this role is one that he never intended when he left New Zealand in the late 1990s as a young lawyer. Parris started his career at Chapman Tripp, moving to Clifford Chance in 1998. Eager to spend three or four years in a foreign country, he moved to Singapore soon after and began working on a range of exciting cross-border transactions in the resources sector.
Not long after, the idea to return to New Zealand melted away. â€œI met my [now] wife in Singapore,â€? Parris says. â€œShe is from California, but she felt that living in Auckland perhaps wasnâ€™t for her.â€? This precipitated a move to London, followed by a further move to the United Arab Emirates, where Parris began advising clients in 2003. Parris lived there for eight years, eventually making partner at the ďŹ rm in 2008. After gaining considerable experience working on oil and gas projects, as well as massive petrochemical projects in Saudi Arabia, Clifford Chance felt that Parris would be ideally suited to manage its new Doha practice in Qatar. â€œI was asked to move to Qatar to open the ofďŹ ce, which I deliberated on for a while. I realised it was a good opportunity and it almost became an offer I couldnâ€™t refuse.â€? Parris recalls the ofďŹ ceâ€™s opening in 2011 as coming just a few weeks after FIFA announced that Qatarâ€™s bid for the 2022 World Cup was successful. The development made it appear that Clifford Chance had opened the ofďŹ ce as an opportunistic venture aimed at taking advantage of the World Cup, a view that found a lot of ground in the press. Parris says the reality was a lot different. â€œThings like that never happen quickly. It had been in the pipeline for 18 months, but it did change the dynamic of work that was available.â€? As confusing as Clifford Chanceâ€™s motives for opening its Doha ofďŹ ce may have appeared to some people, Parris adds that a changing dynamic, one characterised by high optimism and a feeling of massive changes underfoot, has deďŹ ned much of his Doha experience.
QATAR OPPORTUNITIES Among Clifford Chanceâ€™s real intentions for opening a Qatar ofďŹ ce, according to Parris, was to take advantage of the outbound M&A activity emanating from Qatari investments into countries in Eastern Asia and the Americas, but especially Europe. â€œQatari investors are very inquisitive into overseas markets, and they like Europe particularly. Many of the strategic clients are arms of the Qatar government. They are looking to diversify their petrochemical dollars into a range of assets globally. In some ways, many of these clients have reached a bit of a peak in their cash ďŹ‚ow, so
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KIWI LAWYERS IN THE MIDDLE EAST
“New Zealand is very developed in its legal framework. In Qatar that framework isn’t as established”
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Despite this, Parris says that, like nearly every other big international ﬁrm stationed in Doha, the size of the ofﬁce he manages is modest. This has partly to do with the size of Qatar itself – the country is home to just two million people – but it also speaks of the one-stream nature of the work itself. “If you are doing the job properly, the vast amount of the work you are doing will be serviced by ofﬁces in other countries. It’s not necessary to execute a lot of the things required in these transactions from Qatar.” Parris says this is a far cry from his experience in Dubai, where the law ofﬁces of international ﬁrms can have upwards of 60 lawyers practising.
THINKING IN NEW WAYS Being a smaller ofﬁce compared with Clifford Chance’s operations around the world, Parris explains that the requirement to think like an entrepreneur coaxed him into accepting managing partner responsibilities. “It was a pretty rare opportunity. Historically, we haven’t been going around the world opening lots of ofﬁces. When we opened up Doha in 2011, I think there had been only around three or four (Clifford Chance) ofﬁces opening in new countries in the preceding 10 years. It’s not something that happens frequently and I liked that challenge. “You do need to be quite entrepreneurial in your approach as well. You have to ﬁgure out a way to
attract clients in areas you’re not familiar with. You have to look at spaces that you wouldn’t normally execute deals in as a lawyer. This requires that you look at how these markets work and the language these clients speak. You have to be on your game to spot the opportunities in these areas. Then your job is to ﬁgure out, in a creative fashion, how to go after those opportunities.”
LIFE IN QATAR Parris admits that the entrepreneurial challenges of his managing partner role have had to make up for some of the shortcomings of living in Doha. In contrast to Dubai, where he practised before, Doha is not as developed and there are not as many options for entertainment. It has helped that his priorities have changed somewhat in recent years – his sons are now aged seven and three, respectively – but even this has created challenges. Aided by the World Cup, infrastructure development in Qatar has been rapid, but other services have been slower to develop, particularly schools, and Parris says ﬁnding a school placement can be hard. Aside from these negatives, there are aspects of his Qatar lifestyle that Parris says are hard to beat. “Qatar has a lot of little pockets and some of them are nice. We live in a great area. Out the front of the house there is a large park and tennis court. You can paddleboard and kayak nearby on the weekends. It’s a good lifestyle.”
The one lifestyle component Parris has not got used to, however, is the heat. “I’ve been in the Middle East for years and it’s still brutal. My family tends to return to California in the summer, after school is ﬁnished, and I visit them there. I try escaping the heat as much as I can.” The Qatar lifestyle is also different in the sense that the local people are not always as visible as expats. The majority of the Doha population is comprised of nationalities other than Qataris, and it is migrant workers who fulﬁl the most visible jobs in society, such as taking orders at coffee shops and serving restaurant customers.
POINTS OF PRACTICE From a practising point of view, Parris says the difference between practising in New Zealand and Qatar is obvious. “Qatar is a civil law, not a common law jurisdiction, but perhaps the main difference is that New Zealand is very developed in its legal framework. In Qatar that framework isn’t as established. Often it is a blank canvas. If you ﬁnd an obstacle along the way, it’s possible that you can get the law changed. “As a consequence, attracting clients such as banks into the market can be difﬁcult. They don’t like that kind of environment. “Aside from that, the day-to-day ofﬁce environment isn’t all that different. There are things like Ramadan and you have to be respectful of what you do in public, but obviously this doesn’t affect the way you work as a lawyer.” NZL
QATAR’S WORLD CUP DREAM With soccer’s return to the spotlight following the World Cup in Brazil, talk has been reignited about FIFA’s controversial awarding of the 2022 World Cup to Qatar. Much of that controversy has centred around accusations of bribery in the bid, as well as the fact the tournament will be taking place in the country’s summer, the season when temperatures reach more than 50 degrees. There have also been allegations that workers have died while helping construct the tournament’s stadiums. Parris says Kiwis shouldn’t believe everything they read about the topic in the media. “Reports of people dying building the stadiums are inaccurate, principally because they haven’t started building the stadiums. People have indeed died on building sites in Qatar, but there is tendency to attribute everything that goes wrong in the country to the World Cup. h:HENTHEBIDWASÁRSTANNOUNCEDTHEREWASALOTOFSURPRISEAMONGTHELOCALCOMMUNITYHERE,TWASSEENASAFANTASTIC opportunity. Three and half years on, people are starting to scratch their heads more. Some of the momentum has been lost, BECAUSEITISSTILLALONGTIMEAWAY0ANYEXPECTEDTHEBENEÁTSTOBEINSTANTANEOUSi
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FEATURE / LEGAL TECH
Mapping the future of legal IT With iPads in the courtroom and computer programs replacing age-old discovery techniques, now is a time of rapid change in the landscape of legal IT
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EVOLUTION OF E-DISCOVERY When Russell McVeagh partner Polly Pope ﬁrst started out as a litigation graduate 15 years ago, she spent a lot of her time visiting clients’ ofﬁces and sifting through piles of hard-copy ﬁles. It’s safe to say that things have changed rather dramatically since then. Not only do clients now store most of their information electronically, but Pope tells NZ Lawyer they’re also creating a lot more information to begin with. “Everyone is sending masses of information via email every day … and what that has meant is that a whole industry has developed to meet the challenges of these changes in information technology to the traditional discovery process,” says Pope. In 2011, amendments were introduced to the High Court Rules that allow lawyers to make sure discovery is tailored and costs are proportionate. Just as with the technology, Pope says lawyers need to be completely across the detail of the Rules in order to achieve the best discovery result for their clients. Essentially, there are two sides to the e-discovery process. Litigators ﬁrst need to be able to assist clients in identifying and collecting their data – documents aren’t just stored in a physical ﬁling cabinet any longer; they’re stored on computer networks and electronic devices. Secondly, there’s the challenge of reviewing masses of electronic
data and ﬁnding relevant documents. “What that has meant is that an entire industry has grown up around e-discovery,” says Pope. “There are a lot of service providers and software companies who look to work with law ﬁrms in relation to discovery. Starting with the service providers, we’ve got everyone from forensic
lawyers and paralegals that their North American counterparts do. “What had to happen up until recently was that a lot of these juniors had to read through all of these documents. Now the technology can help them get to the important stuff quicker and cheaper. Effectively, it speeds up the process as
“Lawyers need to be more across the technology ... than ever before in order to ... manage the discovery process for the client in the most eﬀective and cost-eﬃcient way” computing experts to legal processes outsourcers who will carry out initial document review for you in offshore jurisdictions. And then, in terms of the software companies and service provider companies, they are competing to offer software which helps you identify relevant documents. So it runs searches and provides a platform for lawyers to review and decide and tag relevant documents.”
THE TRAPS Andrew King, head of e-discovery consultancy group eDiscovery Consulting, says the New Zealand legal market differs from that of the US in that local ﬁrms don’t have the expansive teams of junior
opposed to saying ‘you’re all going to be out of a job’, or anything like that.” Pope says there’s a ‘trap’ for the unwary litigator in this new environment, which is to assume that technology replaces the need for lawyers to be as involved in the discovery process as before. “If anything, lawyers need to be more across the technology that is available than ever before in order to be able to manage the discovery process for the client in the most effective and costefﬁcient way,” she says. “While new technologies that are becoming available, such as predictive coding, may enhance the document review process, they do not completely replace
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FEATURE / LEGAL TECH
TOP 10 APPS FOR LAWYERS
iAnnotate and PDF Expert Enterprise These allow you to highlight and annotate many different types of documents, including PDF, DOC, PPT and image files.
GoodReader With GoodReader on your iPad/iPhone, you can read virtually anything, anywhere: books, movies, maps, pictures.
ReaddleDocs This is GoodReader’s main competitor. It’s a document manager for iPads that saves documents so they can be accessed anywhere. ReaddleDocs can access PDFs, MS Office documents (Word, Excel, and PowerPoint), Apple iWork files and any other document converted to PDF.
LogMeIn Allows you to access your PC remotely – useful when you need to grab a file from your desktop or use software for which there is not yet an iPhone/iPad client. The app also has a set of shortcuts for controlling the remote screen.
TrialPad Allows you to organise and present evidence. TrialPad is a fullfeatured courtroom presentation tool that makes it easy to call out sections of documents, highlight text, create side-by-side document comparisons, edit and show video clips, add exhibit stickers to documents and search document text.
Penultimate This app turns an iPad into a legal notepad. Instead of taking notes with pen and paper, lawyers can use a stylus or fingertip to write notes on the iPad by hand. Notes can be saved as a PDF or sent as an email in your handwriting.
Circus Ponies Notebook A tool for organising notes, research, and even full case files. Some lawyers use it as their trial notebook in the courtroom, enabling a lawyer merely to carry an iPad around rather than be weighed down by boxes of transcripts, file folders, and all of the other piles of paperwork created in preparing for trial.
Evernote Not a legal app, but reportedly one of the most important ‘productivity’ apps in the world, claiming to have 80 million users. Evernote syncs across all devices, from your laptop to your smartphone, and allows you to create to-do lists and voice notes, snap photos for visual reminders and create notes directly from your email by ‘tagging’ topics.
Broadli Developed by NZ expatriate (and former lawyer) Claudia Batten, Broadli helps sort your LinkedIn network into practical categories. You sign in with LinkedIn and sort your connections by dragging each face to a quadrant: Inspired – people you would gladly do a favour for; Dormant – likely great people but not actively part of your life; Don’t Know – those you... don’t know; and Want to Know – not your inner circle but you’d like to get better connected.
Stress Tracker Created by a team of psychologists and researchers using Cognitive Behavioural Therapy, this app helps you identify and relieve some of your daily pressures. Track your moods and tension sources and learn what makes you anxious. By identifying those moments, you can better deal with stressors – or, ideally, avoid them in the first place.
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document review by lawyers. It’s a matter of making the technology work for you to achieve the best result.” King says predictive coding is still dominating the e-discovery space, despite the fact that many experts predicted it would fall away like ECA (Early Case Assessment). “The attention of the main predictive coding providers has moved on from solely the transparency to understanding the process and ensuring that predictive coding is done right,” he says. “There is even greater emphasis on the importance of the workﬂow that goes around the predictive coding process. There appears to be a greater appreciation from providers that predictive coding is not a silver bullet but one of many tools that should be considered to suit the speciﬁc requirements of a matter.” In terms of what is the right way of going about an e-discovery and who to
work with, Pope’s view is that there’s no one-size-ﬁts-all approach, because no two discoveries are the same and every big case poses its own challenges. “What we aim to do at Russell McVeagh is to be across all of the options available so that we can offer the best solutions to our clients,” she says. “What that means is that we actively engage with service providers. We need to know who to call; we need to know who’s the best in a particular area, whether it’s taking forensic copies of computer data or assisting with running searches. “It’s also meant that the make-up of our ﬁrm has changed. We have an in-house litigation support team. They support us from a technical point of view throughout the discovery process and they assist with receiving and processing data, producing lists of documents and preparing data for exchange with the other party to the litigation.”
ELECTRONIC DEVICES IN COURTROOMS In April last year, the Environment Court announced three electronic initiatives: the trialling of iPads in the larger multiparty, multi-issue hearings; the commencement of a pilot e-ﬁling project for civil courts in New Zealand; and the enhancement of the Court’s website to facilitate lodgement of evidence for hearings (particularly the larger ones) and exchange of evidence among parties to those cases. From a lawyer’s perspective, this is (quite literally) a weight off the shoulders, according to Russell McVeagh’s environment, planning and natural resources team partner, James Gardner-Hopkins. “Last year, there were three cases where the Environment Court trialled the use of iPads in the courtroom. The judges and commissioners were all given iPads, and the intention was to sort of run the hearing process this way so that the
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FEATURE / LEGAL TECH
lawyers and the other parties involved could all get themselves prepared to operate in an ‘electronic’ courtroom,” says Gardner-Hopkins. Those three cases were the ﬁrst time the Environment Court had tried to run the evidence loaded onto iPads, which largely did away with physical bundles of evidence. “As a precursor to that … a couple of the Boards of Enquiry started to use iPads,” he says. “The feedback from those processes was that, because of the volumes of information that are often at play in these big environmental cases, it made things so much more manageable. That’s right from the physical aspect: you don’t have to carry around 17 folders of information and set up shelving in Blenheim in a local hall that has been hired out for eight weeks of a hearing.” So why has it taken so long for mobile devices to enter the courtroom? According to Gardner-Hopkins, a combination of factors has contributed to the delay. “It’s not until relatively recently that [most] people had a device. In terms of accessibility … particularly in the Environment Court, there are often large numbers of participants – into the hundreds sometimes – and any particular justice group or board that is going to move to this particular way of doing things runs the risk of cutting people out if they don’t have an iPad or they can’t access the internet. And you do still come across it in our cases; people say, ‘I don’t have the internet at home, so I have to go to the public library to look at these electronic documents’,” says Gardner-Hopkins. This means an element of ﬂexibility is still required. For instance, he says, there is still generally a hard-copy set sitting in the back of the courtroom or hearing room, so that members of the public can and pick up the relevant volume and follow along. Furthermore, recent advances in technology have meant it’s now much easier to upload material onto electronic devices. “A couple of years ago, it was actually quite difﬁcult to upload material onto iPads,” says Gardner-Hopkins. “Our IT guys – we’d have to physically give them
“If the judge is writing his notes on the credibility of a witness on the side of a brief of evidence on their electronic device, you don’t want that ... going to the wrong place” the iPad and they’d take it away and spend several hours uploading that material. “Now there are a range of readily accessible apps that make that process much easier, and it can be done remotely. It’s [also] a lot easier now to use [different platforms]. You can use an iPad, you can use Android or something else, and it’s not brand dependent.” However, security remains an ongoing concern, and issues around conﬁdentiality continue to limit what information can be produced electronically, or how electronic courtrooms might operate. “Early on, it was very much only the publicly available information that was ever uploaded onto these mobile devices, and of course when you exchange evidence it’s effectively publicly available,” says Gardner-Hopkins. “More recently, there are various programs or apps that can be used to annotate documents, and so it becomes much more important, if you’re writing notes on the side of a PDF that you’re going to use for cross-examination, or, on the ﬂip side, if the judge is writing his notes on the credibility of a witness on the side of a brief of evidence on their electronic device, you don’t want that annotated version going to the wrong place. So our IT team are working very hard at developing a set of apps that interface with each other that let that happen in a way where we’re conﬁdent the security of the information is maintained.”
INCREASING SCALE Electronic initiatives are something the Ministry of Justice has been looking at for some time. In a report issued on the Ministry’s website last year, acting principal Environment Court judge Laurie Newhook explained that the ultimate goal was to
allow in-court iPads, the Court’s website and e-ﬁling systems to “talk to each other”. “The ultimate goal is to get these proposed component parts to ‘talk to each other’ as an integrated system in the quest to become as paperless as possible,” wrote Newhook. “We are conscious of the importance of not ignoring the position of people without access to computers and the requisite skills. And meantime, as a Court of Record, we will need to maintain at least one paper trail. Further down the track, some regulation changes may prove desirable, along with consent to go paperless from the Chief Archivist under the Public Records Act 2005. The aim is one sensible step at a time, but steady, not slow.” Due to the sheer volume of evidence utilised in Environment Court cases, the Court is keen to generate efﬁciencies and increase accessibility for lay citizens in particular, says Gardner-Hopkins. “Assuming [they] have decent internet access, it is so much easier for them to click on a web page, or to get an email notiﬁcation that says, ‘The applicant’s evidence is now available – go to this link’ … and there’s of course a huge cost savings.” As at time of writing, the Environment Court was running a direct referral with 310 parties involved. “If you think about if the Environment Court had to issue some directions and it was four pages, ordinarily it would have to copy all four pages for 310 people. It would have to have its staff stuff 310 envelopes and post it all out. Now, with the click of a button, it can be uploaded onto a web page and everyone gets notice. It just makes things much more efﬁcient. As practitioners, the more use that can be made of those sorts of things, the better.” NZL
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AUCKLAND SPECIAL REPORT 2014
Auckland City Report New Zealandâ€™s largest city is experiencing a whirlwind of activity across numerous legal sectors. Mackenzie McCarty takes a look at where some of the biggest opportunities are developing
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AUCKLAND SPECIAL REPORT 2014
QUICK FACTS: AUCKLAND LAWYERS Â„ As of February 2014, there were 5,012 lawyers working out of Auckland â€“ 43% of the nationâ€™s total Â„ Auckland has the seventh-highest proportion of lawyers to the general population out of all the towns and cities in New Zealand, with one lawyer for every 282 people. (Wellington has the highest proportion, with one for every 185 people) Â„ 7HEOLDESTĂ RMSIN Auckland are Bell Gully (173 years old), Jackson Russell (168 y/o) and %ROOKĂ ELDSYO
Â„ One of New Zealandâ€™s longest-serving MEMBERSOFTHEJUDICIARY Justice Keane of the District and High Courts is based in Auckland (he is tied with the Maori Land Courtâ€™s Judge Spencer). %OTHHAVEBEENMEMBERS of the Judiciary for 26 years
The construction contracting market is heating up across New Zealand, largely fuelled by the Christchurch earthquake recovery. However, Canterbury isnâ€™t the only region with major projects on the horizon. Chapman Tripp partner and construction law expert Brian Clayton says the Auckland construction market has experienced a dramatic recovery following the doldrums of the GFC. â€œItâ€™s a hot contracting market, without a doubt,â€? says Clayton. â€œThe contractors are ďŹ‚at out at the moment. Weâ€™re going from the GFC where it was very quiet and contractors were really scrapping â€“ now theyâ€™re just inundated with work. So the leverage there is going to result, I think, in different pricing structures in construction contracts. Thereâ€™s going to be a lot of tension between the supply and demand for construction services.â€? Clayton says the impending development of the new SkyCity Convention Centre is a good example of how major construction projects can create work for ďŹ rms of various sizes. â€œThere will be the main roles, acting for SkyCity and acting for the main contractor, but there will also be subcontractors. So lawyers can come in at different angles, and, obviously, the more projects there are, the more disputes that arise â€“ there will be disputes for subbies and main contractors and developers. So I think there will be a ďŹ‚ow-on effect.â€?
COMMERCIAL PROPERTY As any regular consumer of mainstream media will tell you, the Auckland property market is undergoing a period of heightened activity, and commercial property in particular is at a premium. A current lack of quality commercial property in the CBD means available options are eagerly leapt upon, while investors are busy planning new developments. Russell McVeagh property partner David Butler has been involved in advising various developers and occupiers on new projects at Wynyard Quarter, including the new ASB and Fonterra headquarters. He says the revitalisation project is â€œgathering momentumâ€? and will likely provide legal work for years to come. â€œWaterfront Auckland has found a developer for the ďŹ ve-star hotel on the site of the TNZ base and also announced this month it has entered into partnership with Precinct Properties to develop the Innovation Precinct,â€? says Butler. â€œFletcher and Goodman have also started work on their own ofďŹ ce precinct at the
southern end of the quarter, which is the site of Fonterraâ€™s new Auckland home. These projects are likely to generate a fair amount of new leasing and construction work over the next few years.â€? ConďŹ dence is high in the commercial property industry, and Butler, like Clayton, believes that developers are now waking up from their GFC â€œhibernationâ€?. â€œThere are a number of new apartment buildings under construction or being planned. The housing market, the Unitary Plan, and initiatives such as the Special Housing Areas are creating opportunities for developers and their advisers,â€? he says. â€œIn terms of the commercial ofďŹ ce sector, the brighter economic outlook is leading to an increase in occupier demand for higher-quality space and leasing activity. This will likely result in more projects coming on stream and more development construction and leasing work. In terms of major developments, Precinct has already announced it intends to redevelop the Downtown Shopping Centre area.â€? Chapman Tripp property partner Mark Nicholson says a lack of viable commercial property investment opportunities means thereâ€™s a pool of funding just waiting to be tapped into. â€œThereâ€™s a huge amount of money and very few investment opportunities [in Auckland]. Thereâ€™s not a huge amount of good-quality commercial property on the market, so every time a decent property comes on the market, the clamour from investors is usually high,â€? he says. â€œAnd that is inevitably going to drive more development. Thereâ€™s a lot of money coming from all different sectors of the economy â€Ś new property is still incredibly popular as a form of investment, and what weâ€™re just starting to see the signs of is possibly some new, different models of property development.â€? But Nicholson is quick to note this is nothing like the investment models that were common leading up to the GFC. â€œYou donâ€™t have the ďŹ nance companies tipping in huge amounts of readily available cash. Thereâ€™s a lot more equity going into projects; banks are requiring it, but itâ€™s also a recognition within the property sector itself that itâ€™s a better model.â€? Butler warns that the scale and complexity of large-scale commercial property development projects necessitates legal documentation that is highly prescriptive. â€œThe design and construction of major developments such as ASB can be a two-year process,â€? he says. â€œIt is therefore important that the development agreement, which is a â€˜livingâ€™ document, accurately
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and clearly sets out the responsibilities and rights of each party and contemplates all eventualities. Implications of delay can be signiﬁcant for both developer and occupiers. It is critical that the parties understand where responsibility (and cost) falls.”
TRANSPORT Transport projects in and around Auckland have already begun to create a tremendous amount of legal work. On a national scale, the Transport Agency has plans for several major projects in the city, and Auckland Transport itself has plans in place. All of these projects require consenting, notes Chapman Tripp environment and RM partner Paula Brosnahan, usually through the designation process, and those processes require legal input. Brosnahan says both large and small ﬁrms are likely to beneﬁt in the long run. “If they go on to construction, they also lead on to property acquisition components which, again, needs legal input,” she says. “The designation process is ... an intensive process that requires a large team.
“Companies are making proactive, growth-based decisions; they’re seeking out opportunities for enhanced earnings and performance” But for the submitters, who are often local landowners who are impacted by a huge piece of infrastructure, [they would be looking to] the smaller practitioners, not just because of localities but also cost.” At time of writing, Brosnahan was advising on the Puhoi to Warkworth project for the New Zealand Transport Agency, which is an extension of the Northern Motorway past the Johnstone Hill tunnels and bypassing Warkworth to the west. It’s the ﬁrst section of the major Puhoi to Wellsford project. However, the eventual operation of the Auckland Unitary Plan is likely to provide the greatest amount
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AUCKLAND SPECIAL REPORT 2014
SNAPSHOT: THE NZ LEGAL MARKET IN 2014 AND BEYOND h3EOPLEHAVEMORECONĂ DENCEANDTHEYgRE>PUTTING@ PROJECTSBACKONTHETABLESOWEgRESEEINGALOTMORE TRANSACTIONALACTIVITYORTHEPREPARATIONFORACTIVITY ATLEASTWITHTHECHANGESPLANNEDIN$UCKLANDAND THEREBUILDOF&HRISTCHURCHTHEREARESOMEREAL OPPORTUNITIESFORCLIENTSINTERMSOFBIGINFRASTRUCTURE PROJECTSi â€“ Peter Chemis, national chair, Buddle Findlay h7HEREISGROWINGDEMANDFORSPECIALISTLEGALADVICEIN THEĂ NANCIALSERVICESSPACEPARTICULARLYAROUNDDEALING WITHINCREASEDREGULATIONANDTHISISLIKELYTOCONTINUE ,NWARDINVESTMENTINTO1EW=EALANDFROM&HINAALSO CONTINUESTOBEASTRONGDRIVEROFGROWTHANDITgS BECOMINGMOREIMPORTANTFORLAWYERSTOHAVETHERIGHT LEGALANDCULTURALSKILLSTODEALWITHTHE&HINESESTYLEOF WORKINGi i,CTGL+?Ă§CAF?GPK?L4GKNQML(PGCPQML h,NRECENTYEARSWEgVEBEENVERYBUSYWITHCAPITAL MARKETS,32SANDTHESELLDOWNSOFTHEENERGYSECTOR *OINGFORWARDWEgVEGOTLARGECLIENTSWHOARELOOKINGTO BANKSFORFACILITIESkTHEYgVEGOTTHEGUNLOADEDBUT MANYOFTHEMHAVENgTUSEDTHOSEFACILITIESYET:EgRE ALSOSEEINGEXPANSIONINLITIGATIONANDREGULATORY,7 PROJECTSANDRESOURCEMANAGEMENTWORKi i(?PW.A%G?PKGBAFGCDCVCASRGTC3SQQCJJ.A7C?EF h3ROJECTSWORKHASBEENVERYSTRONGkWEgVEBEEN INVOLVEDINPROJECTSINPRISONSSCHOOLSAND>MAJORROADS@ :EEXPECTTOSEEINCREASINGLEVELSOFTRANSACTIONAL ACTIVITY7HEONEAREAWEgRENOTSEEINGALOTOFNEWWORK INISBANKLENDINGBUTTHATWILLFOLLOWINCREASEDLEVELSOF 0 $ACTIVITYi i3MECP1?PRPGBECAF?GPK?L#CJJ(SJJW h7HEREWILLDEĂ NITELYBEANELEMENTOFfMOREOFTHE SAMEg7HECORPORATETRAINHASLEFTTHESTATIONBUTIFTHE OUTCOMEOFTHEELECTIONIN6EPTEMBERISLESSBUSINESS FRIENDLYWHICHISQUITEPOSSIBLEITCOULDEXPLAINWHY WEgVEGOTSUCHARUSHONCORPORATEWORKNOW:EgRE LOOKINGFORWARDTOAGOODĂ€OWOFINFRASTRUCTUREWORK Ă NANCIALSERVICESREGULATIONWORKANDTHE&HRISTCHURCH REBUILDWHICHISREALLYGETTINGUNDERWAYNOWi i"LBPCU1MMJCK?L?EGLEN?PRLCP$F?NK?L5PGNN h)OREIGNDIRECTINVESTMENTIN1EW=EALANDkINDAIRY Ă SHINGFORESTRYANDAQUACULTUREkISGOINGTOPRODUCE 0 $ACTIVITYSOLAWYERSEXPERIENCEDIN0 $WILLBEIN DEMAND)URTHERMORETHEINTERNATIONALĂ RMSMAYWELL BEEYEING1EW=EALANDDUETOITSRECOGNISEDfROCKSTARg ECONOMYANDBECAUSEMULTINATIONALCLIENTSNEEDTHEIR ADVISERSTOBEONTHEGROUNDWHERETHEYAREi i.?PRGL8GQCK?LAF?GPK?L%-"1FGJJGNQ'MV
of work for lawyers in the transport/infrastructure, environment and public policy areas, and Brosnahan says the opportunities are widespread. â€œThe big thing for the environment sector, looking at the next few years, is obviously the Unitary Plan. So, rather than development and construction, where thereâ€™s actually project work, the Unitary Plan is more policy and itâ€™s looking ahead for the next 10 years as to what will happen in Auckland. With a number of clients, itâ€™s looking at policy and how the policy rules might impact on actual current landholdings or proposed future developments.â€? One of the more signiďŹ cant topics of interest, from an environmental legal perspective, includes the mana whenua sites (plus buffer zones) in the Unitary Plan. Brosnahan says the mana whenua rules are likely to require further cultural investigation in a proposal or development. â€œThese rules will apply to large projects, as well as small developments. [They] have the potential to add substantial time and cost to applications,â€? she says. Finally, Auckland Transport has received its decision on the designations for the City Rail Link and has appealed to the Environment Court. It is believed that Auckland Transport is now looking to apply for resource consent. â€œAuckland seems to be on the upswing in terms of infrastructure and construction work,â€? says Brosnahan. â€œSo thereâ€™s a lot of discussion going on and itâ€™s hard to see that itâ€™s quieting down, just because of the different phases in infrastructure. Investigation takes a number of years and then consenting and then development â€“ and all of thatâ€™s kind of a ďŹ ve- to 10-year cycle.â€?
MERGERS AND ACQUISITIONS While not strictly limited to Auckland, the current M&A climate is seeing plenty of activity as the New Zealand economic outlook continues to improve, and many of these transactions are likely to be advised on by Auckland-based legal teams. KPMG New Zealandâ€™s latest M&A Predictor shows thereâ€™s been a rise in both capacity and conďŹ dence when it comes to mergers and acquisitions, and the â€˜big fourâ€™ accounting ďŹ rmâ€™s head of M&A, Tony McNaught, says the market is active and buoyant. â€œThe kinds of deals weâ€™re now seeing in the marketplace can be characterised as positive deals. Companies are making proactive, growth-based decisions; theyâ€™re seeking out opportunities for enhanced earnings and performance,â€? he says.
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In fact, the latest Grant Thornton International Business Report, which surveys 12,500 business leaders in 45 economies, shows that 27% of New Zealand businesses anticipate a change in ownership by 2016 â€“ more than double the global average of 11%. Only Finland ranked higher than New Zealand at 33%. Grant Thornton New Zealandâ€™s head of lead advisory, Martin Gray, says the ďŹ ndings reďŹ‚ect growing conďŹ dence in New Zealand in a post-GFC era. â€œNew Zealand has had a couple of good years in terms of growth. There have been some good corporate performances; weâ€™ve witnessed a strong performance from the New Zealand stock market and a signiďŹ cant lift in the number of IPOs,â€? he says. The nature of M&A activity appears to be changing as well, with fewer deals being done because banks have stepped in or because low proďŹ tability has left ďŹ rms penniless. However, Chapman Tripp managing partner Andrew Poole says the September election is already having an effect on corporate legal work.
KPMG NEW ZEALANDâ€™S LATEST 2014 M&A PREDICTOR FOUND: The outlook for M&A activity in New Zealand remains â€˜very positiveâ€™ for the next 12 months. 0ARKETCONĂ DENCEISUPSINCE-UNEWITHCAPACITYEXPECTEDTOBEUP BY'ECEMBER &ONĂ DENCELEVELSACROSSTHE$SIA3ACIĂ CREGIONINCLUDING$USTRALIAAND&HINA HAVEINCREASEDMARKEDLYSINCEMID 1EW=EALANDgS,32ACTIVITYDURINGWASATAYEARHIGHWITHNEW LISTINGS,32ACTIVITYDURINGISALSOEXPECTEDTOBESTRONG
â€œThe corporate train has left the station, but if the outcome of the election in September is less business-friendly, which is quite possible, it could explain why weâ€™ve got such a rush on corporate work now,â€? he says. â€œWeâ€™re looking forward to a good ďŹ‚ow of infrastructure work, ďŹ nancial services regulation work and the Christchurch rebuild, which is really getting underway now.â€? NZL
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BUSINESS STRATEGY / MANAGEMENT
If you want innovation and growth, you need to engage your people on a whole new level, argues Therese S. Kinal
Management is in need of a revolution, and not just one on glossy academic paper, but one that actually changes how organisations think and act. Despite the inspirational stories we read about companies like Zappos, Innocent Drinks and Google, the truth is that most of us are using outdated management practices and failing to get the most out of our people. Not convinced? Consider this: • 65% of people are unhappy at work (Right Management, Manpower Group, 2012 online survey) • Only 14% understand their company’s strategy (Smither, J.W., and London, M. (2009). Performance management: putting research into action) • 75% are seeking jobs as we speak (Jobvite’s Social Job Seeker Survey, 2012)
Today’s leaders face increased complexity and ambiguity, and employees and customers alike are demanding engagement, transparency and responsibility. One billion people are now on Facebook, and 500 million Tweets are sent every day. Customers don’t want to be sold to. They want to connect with brands and play a role in the development, sales and marketing of products. If we ever thought we had ‘control’, it’s deﬁnitely gone now. All of this presents a new challenge for how we
think about and practise management and how we develop leaders that can excel in this brave new world. But before we look at the future, let’s take a look in the rear-view mirror and see how we got to where we are today:
1910S–1940S: MANAGEMENT AS SCIENCE ‘Management as science’ was developed in the early 20th century and focused on increasing productivity and efﬁciency through standardisation, division of labour, centralisation and hierarchy. A very ‘top down’ management style with strict control over people and processes dominated across industries.
1950S–1960S: FUNCTIONAL ORGANISATIONS Due to growing and more complex organisations, the 1950s and 1960s saw the emergence of functional organisations and the human resource (HR) movement. Managers began to understand the human factor in production and productivity, and tools such as goal setting, performance reviews and job descriptions were born.
1970S: STRATEGIC PLANNING In the 1970s we changed our focus from measuring function to resource allocation and tools such
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as Strategic Planning (GE), Growth Share Matrix (BCG) and SWOT were used to formalise strategic planning processes. After several decades of ‘best practice’ and ‘one size ﬁts all’ solutions, academics began developing contingency theories.
1980S: COMPETITIVE ADVANTAGE As the business environment grew increasingly competitive and connected, and with a blooming management consultancy industry, competitive advantage became a priority for organisations in the 1980s. Tools such as Total Quality Management (TQM), Six Sigma and Lean were used to measure processes and improve productivity. Employees became more involved in collecting data, but decisions were still made at the top, and goals were used to manage people and maintain control.
We need to recognise that what worked before just simply isn’t enough anymore 2000S: BIG DATA Largely driven by the consulting industry under the banner of ‘Big Data’, organisations in the 2000s started to focus on using technology for growth and value creation. Meanwhile, oversaturation of existing market space led to concepts such as Blue Ocean Strategy and Value Innovation.
1990S: PROCESS OPTIMISATION Benchmarking and business process re-engineering became popular in the 1990s, and by the middle of the decade 60% of Fortune 500 companies claimed to have plans for or had already initiated such projects. TQM, Six Sigma and Lean remained popular, and a more holistic, organisation-wide approach and strategy implementation took the stage, with tools such as Strategy Maps and Balanced Scorecards.
A WHOLE NEW LEVEL After a century of trying to control people, processes and information, we have come to a point in organisational history where we need to recognise that what worked before just simply isn’t enough anymore. Traditional management is ﬁne if you want compliance, but if you want innovation and growth, you need to engage your people on a whole new level.
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BUSINESS STRATEGY / MANAGEMENT
two go together, and that having happy and productive workforces is not about team-building exercises or lucrative beneﬁt packages but about creating a working environment that offers purpose, mastery, challenge and autonomy, which in turn creates more business value than the traditional approach. Recently, Steve Denning wrote about the management revolution that’s already happening at Forbes.com. In the article, he discusses organisations like Apple, Zara and Whole Foods that have successfully forged ahead despite the increasingly challenging environment: “None of these organizations has arrived at any ﬁnal state or equilibrium: in each case, management practices continue to evolve. Nor are any of these organizations perfect, as they have to cope with a context that is ﬁlled with contradictions. Their virtue lies in the creative energy with which they are pioneering new ways of adding value.” Steve makes some excellent points about the need to constantly reinvent ourselves, but I’m not sure if the revolution is already happening. In fact, I think it might be more of an evolution. And herein lies the problem. We need a revolution, not an evolution. We are armed with tons of research that supports a more holistic, human way of doing business. It is up to us to stop simply following best practice and translate our know-how into how we develop leaders and organisations that are more agile, innovative and purpose-driven… and, in doing so, breed the pioneers and market leaders of tomorrow. AL
In our research, we looked speciﬁcally at the evolution of the management approach and the approach to innovation/problem solving, and at how these would develop in the future (see graph, ‘The evolution of management’):
Therese S. Kinal is the CEO and co-founder of Unleash, a disruptive innovator in the management education and consulting industry. She is the co-author of Unleashing: The Future of Work, and she writes, runs workshops and works with clients on a range of management issues.
1. Management approach: the style of top management, ranging from: a. Control (ie your boss tells you what to do and how to do it); to b. Set goals (ie your boss sets goals and expectations, but you have more freedom with regard to how you achieve them); to c. Inspire (ie your boss gives you scope and freedom to innovate on both the what and the how) 2. Approach to innovation/problem solving: how leaders solve strategic problems and develop new products and services. This ranges from: a. Top down (ie solutions are created and come from the top); to b. Top down with bottom-up data (ie the rest of the organisation contributes information and experiences, but solutions are still created at the top); to c. Participatory (ie solutions are created collaboratively, and throughout the organisational levels)
Organisations of the future are neither consensus driven nor top down. They aren’t dictatorships, nor are they anarchies. They’re not merely occupied with increasing shareholder value or making their people happy. Leaders of the future know that the
THE EVOLUTION OF MANAGEMENT Inspire
Unleashing Big data
Top down w/ bottom-up data
MANAGEMENT APPROACH Control
Strategic planning Functional organisation Management as science
Source and copyright: UNLEASH SPP LTD. For more information, go to unleashteam.com
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BUSINESS STRATEGY / CUSTOMER ENGAGEMENT
Transitioning: The Third Space The key to success in business is the ability to leave behind the baggage from your previous interaction and show up at the next one with a mindset that will help you gain the maximum amount of value FROMITANDCREATESATISĂ EDCUSTOMERS who will help drive your business forward. In an article based on his book, The Third Space, Dr Adam Fraser explains all
Working in the legal services industry you are faced with many challenges. Keeping clients happy, managing the expectations of stakeholders, and keeping up with constant regulatory changes are all in a dayâ€™s work. Of all the challenges you face, the greatest one is the huge number of hats you have to wear on any given day. One moment you are playing counsellor to a client; the next you are wrestling with a frustrating and challenging task, then selling your expertise to a prospective client. Finally you are expected to go home and turn off from work and engage with the people in your personal life. The challenge is how do you perform at your best in each space you inhabit and not carry a bad experience into the next one?
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BUSINESS STRATEGY / CUSTOMER ENGAGEMENT
Dr Adam Fraser is a leading researcher and expert in human performance. He has worked with elite athletes, the armed forces, and business professionals at all levels. He is at the forefront of how neuroscience and positive psychology can be used to improve workplace performance.
I ﬁrst came across the concept of transitioning when Jim Loehr’s research showed that there was very little difference between the top 100 male tennis players in terms of speed, accuracy and power during the point. Where the elite players differed was what they did in between the points. First of all the elite players were able to reﬂect on the previous point and not carry what happened into the next point. Secondly, they were able to relax their bodies, which calmed their minds and conserved their energy. Finally, they moved into the next point with a focused, optimistic mind. It was not what the elite players did during the point; it was what they did in between the points that made them the best. We are just like the tennis players moving from point to point: our lives are made up of moving between different spaces. The ﬁrst space is the role/environment/task you are in now; the second space is the role/environment/task you are about to transition into. For example, you may go from checking emails at your desk to sorting out a personal issue, or you may go from an internal meeting about the strategy of your business to an external meeting where it is about your client’s world. Each space requires us to be different things to different people. The key to success in business is the ability to use the ‘Third Space’ (the transitional gap between the ﬁrst and second) to leave behind the baggage from the previous interaction and show up at the next one with a mindset that will help you gain the maximum amount of value from it.
speciﬁcally, what went well, what did you achieve and how did you get better? This activity gives you a burst of happiness and optimism. 5EST This is where you take time to be calm and focus on the present moment. This step relaxes the mind and sets you up for constructive behaviours. 5ESET The ﬁnal step is where you become clear about your intention for the home space and articulate the speciﬁc behaviours you want to exhibit. This ﬁnal step has a dramatic impact on people’s behaviour as it elevates their self-awareness. In one experiment we asked a group of small business owners to practise these three steps between work and home. After a month of practising we saw a 41% improvement in their behaviour in the home.
A POSITIVE CUSTOMER EXPERIENCE NEEDS THE RIGHT MINDSET This strategy also applies to our business day. We all struggle with change. In fact, 75% of change efforts in the workplace fail. One of the reasons we fail to change is that we get busy. We might go to a seminar about improving our business and write down some great strategies. However, we get back to the ofﬁce and are greeted by 150 emails and a panicked phone call from a client. The change gets put on the backburner and we go into survival mode. We have run a number of very successful cultural change programs. Our strategy is simple:
DON’T TAKE WORK HOME One of the transitions we struggle with the most is the transition from work to home. In our research we found that people often carried the work mindset into the home; that is they tried to run their homes like their ofﬁces. This mindset is obviously not conducive to the home. Our research found that only 26% of people came home with a positive mindset and only 43% came home in a good mood. We set out to determine if the transition between work and home could improve mood and mindset. After three years of research we found the magic formula. The perfect transition between work and home consists of three elements: 5EÀECTThis is where you reﬂect on the day. The key is to reﬂect on the positive things that happened;
6TEP Map out what new behaviours need to be incorporated. 6TEP Each time people move from one interaction to another they remind themselves of those key behaviours. The likelihood of incorporating these behaviours is far greater since they are front of mind. The customer experience drives your business. Services ﬁrms, more than any other sector, are built on referrals. People refer when they have had a great experience. It drives consumer behaviour. One challenge we face is that in-store retail spend has dropped as people are increasingly shopping online. Yet Apple makes 50% of its proﬁt from in-store shopping and is the most proﬁtable
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store per square metre of space on the planet. When people were asked why they shopped at the Apple Store rather than going online, they said it was because of the experience. They loved going to the store: it was fun; it was cool; it felt good to be in there. When I recently asked my Facebook community to refer me to a ﬁnancial planner, the reasons they gave for recommending people all revolved around the experience of dealing with them. It was things like: “They really listened to us and understood what we wanted from our ﬁnancial plan”; “She was really nice to deal with, listened to us and took her time”; “They didn’t just push products on
us, they understood our risk proﬁle and tailored the plan to meet that”; and “Their level of service and care went above and beyond; they spent time understanding our needs and determined what was the best loan for us”. How we interact with our clients determines if we are successful or not. As you transition into every client interaction, ensure you use the ‘Third Space’ to get yourself into the right mindset to give your clients a positive customer experience. Ask yourself: “How am I showing up?” The better you show up, the more you will create satisﬁed customers who will help drive your business forward. AL
FIRST SPACE Role/environment we are now in
SECOND SPACE Role/environment we are transitioning into
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PROFILE / OUTSIDE THE OFFICE
Blind courage Darren Fitter’s path from teen struggling with impending blindness to obstacle course extraordinaire proves the endless possibilities for lawyers who aren’t afraid to back away from a challenge All of his career, Darren Fitter has been bending people’s conceptions of the world. Then he has shattered them. On ﬁrst encounter over the phone or electronically, the Gilbert + Tobin lawyer strikes most as a talented but profoundly ordinary lawyer. That impression has much to do with the unremarkable way he does
his job. He returns client emails promptly and has the analytical skills to comb through documents as quickly as the best lawyers. It is only when clients meet Fitter in person that they realise what sets him apart. Fitter, despite all the tasks he can perform, is blind. Even more remarkable is what he does
outside of practice. Drawing parallels with the Marvel character Daredevil – blind lawyer by day, death-defying superhero by night – Fitter has become the ﬁrst blind person in the world to compete in an array of highoctane, adrenaline-heavy obstacle courses. The difference is that Fitter’s story is no comic book fantasy. The lawyer’s path from teen struggling with impending blindness to rainmaker in one of Australia’s most prominent ﬁrms is as inspiring as it is heart-breaking. “I grew up in a country town just west of Coffs Harbour. I was diagnosed with my condition at age ﬁve and began gradually losing my sight. By the time I was 13 and heading into a mainstream high school, it had mostly gone,” Fitter says. He adds that growing up as the only blind student at a school of more than 1,000 pupils was a hardening experience. Frequently bullied and unable to access a lot of the same learning materials as other students, his high-school experience was more challenging than most. “I look back on those years at public school and I think they have helped me build the resilience I have now,” Fitter says. It was at high school that Fitter began to slowly develop the attitude that has been driving his life since then. “My philosophy
FITTER’S HARDEST OBSTACLES TO DO BLIND Tough Mudder – “There’s this one called ‘Electro-shock therapy’. There are these high-voltage electrical wires, which other people can dodge and weave past. I couldn’t do that. I got zapped every time,” he laughs. Spartan Race – “It’s not sexy, but the most DIê CULTTHINGFORMEWASAMBALANCING BEAM,TOOKABOUTFOURSTEPSANDWASOéITi
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is that whatever obstacle comes to you, ﬁnd a way. You go around things and ﬁnd a way to succeed. You don’t give up.”
BECOMING A LAWYER After ﬁnishing high school, Fitter went to university with the intention of doing a combined degree in law and social work but ended up studying only for the social work degree. He ﬁnished this in 1996 and, after a stint travelling, was employed as a social worker. A few years later he decided to set his mind to studying law again and resolved to graduate in law as soon as possible. After two years of summer school and intensive courses, he eventually became qualiﬁed as a lawyer, joining Gilbert + Tobin in 2004. At ﬁrst he was rotated around the ﬁrm, gaining experience in a number of corporate practice areas. This was followed by a few years in the ﬁrm’s pro bono team, which inspired Fitter to eventually move to Gilbert + Tobin’s department specialising in charity law, which he now leads. Throughout this time, Fitter says he became aware of his slipping ﬁtness levels. “I was sitting at my desk and realised that I used to be ﬁtter, and that if I didn’t change something I would wake up at age 40, wondering what I am doing with myself.” Motivated to hit the gym, Fitter hired a personal trainer, and what started out as once-a-week sessions eventually evolved
into three-times-a-week workouts. He tried CrossFit training for a while and a range of other exercise programs until an idea struck him. “I had heard that the Tough Mudder obstacle course was coming up,” Fitter recalls. “I said to my personal trainer, Dirk, ‘We’re going to do it’. We pulled together a team of four and competed. Later it turned out that I was the ﬁrst blind person to ever complete Tough Mudder.” Following the success of his Tough Mudder experience, Fitter has since entered other obstacle course races, including the Spartan Race, which he claims is a lot more gruelling because, unlike Tough Mudder, it is timed and participants face penalties for failing at obstacles. “One of the obstacles was to throw a spear at a bale of hay. Well, of course I missed, so I had to do 30 burpees.” Fitter explains that teamwork helps him get through the races. “I depend on my teammates when running from one obstacle to another. I usually just grab onto a mate’s arm and we run together. Obstacles I have to do solo. Leopard-crawling through 100m of barb wire, there’s no teamwork there. I usually ask people for a description of the obstacle and try work out how to do it.”
BLIND OUTLOOK ON LIFE While Fitter may have started doing obstacle courses as a way to keep ﬁt, his penchant
for endurance activities is hardly out of character, considering that he qualiﬁed for the 1996 Paralympics in Atlanta. He wasn’t able to compete for ﬁnancial reasons but managed to win in a much bigger way. “The night the plane left to Atlanta I went on a pub crawl at my university. That’s where I met my wife. That was 18 years ago.” Fitter says that, like any marriage, his requires a certain amount of give and take, but the challenges are compounded by his disability. “I do the hard work in the garden and deal with the technical dramas, like helping our kids put things together, but there’s just a little more work than normal for her. She has to help me with other things, like telling me whether I’ve picked out the shirts I think I have chosen. She reads our printed mail.” His advice to other people who feel they are facing insurmountable obstacles is to never underestimate what can be achieved in the long term. It is this thinking that has helped him gain the conﬁdence to compete in gruelling physical challenges and, more importantly, compete on an equal footing with other lawyers. “Most people overestimate what can be done in a year, but they underestimate what can be done in 10. Don’t expect things to happen immediately, but if you take an innovative approach, they come in time.” NZL
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