At The Bar - April 2017 by New Zealand Bar Association | Ngā Ahorangi Motuhake o Te Ture

At The Bar April 2017

Recent Developments in Arbitration Law and Practice Hearsay from Beyond the Grave Justice Wild Retires â&#x20AC;&#x201C; Some Personal Perspectives

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YOUR ASSOCIATION p4

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LEGAL MATTERS

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From the President: Clive Elliott QC The Latest from the Junior Bar: Lara Mannis, Tiho Mijatov and Gretta Schumacher summarise the latest activity from the Junior Bar New Members since December 2016 NZBA Barristers’ Directory - Your Web Presence: Lisa Mills on how to update your Find a Barrister profile on the new website

8 Hearsay from Beyond the Grave: Jadeine McLeod, PDS, on Preston v R 13 Recent Developments in Arbitration Law and Practice: Derek Firth focusses on recent developments 16 Justice Wild’s Valedictory Sitting: comments from the profession 20 Modernising our Senior Courts: an outline of some of the changes introduced by the new legislation 25 Product Review - Sim’s Court Practice: Jacqui Thompson looks at Sim’s LIFESTYLE

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26 Should Lawyers Retire to a Beach or Stay at the Bar? - Laetitia Peterson considers the best time to retire 30 Smart Eating for Energy and High Performance on the Job: Dr Frances Pitsilis discusses how to eat healthily 32 The Dangers of Prolonged Sitting in the Workplace: Adam Billings considers a hidden danger 33 Art as Investment: Jacqui Wilkinson looks at how to make your walls work for you 36 Petrol Heads’ Corner: David O’Neill tries out the Jaguar F-Pace 39 Events: Pictures from NZBA Auckland Christmas function

p36 The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association. EDITORIAL COMMITTEE David O’Neill - Chair Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com

CONTRIBUTIONS & ADVERTISING Jacqui Thompson Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz

Melissa Perkin - Executive Director Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz

DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224

NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140

From the President By Clive Elliott QC

We are a quarter of the way through 2017 already, and it has been a remarkably busy start to the year for the NZBA. I outline below some of the more important items that have been or still are on our agenda. A Change in the Council Our Associate Member Representative Greg Hollister-Jones has been appointed to the District Court Bench. We congratulate His Honour on his appointment and thank him for his hard work and considerable support of the NZBA. As a result of the vacancy arising from the appointment of Judge Hollister-Jones, the Council has appointed Tauranga based Rob Stevens, Public Defender Northern, as our new Associate Member Representative for the remainder of the Council term (to 30 September 2017). We welcome Rob onto the Council. Strategic Planning The rate of change in the legal profession is greater than ever before. While a great deal of this change is spurred on by technology, there is also the need to respond to changing economics and its effects on the profession. We have been investigating how the NZBA should adapt to meet these changes so that it can more effectively support its members. With this in mind, we recently surveyed our membership. Feedback from the survey was presented at a Strategic Planning Meeting which Council members attended immediately prior to our February 2017 Council meeting. The Council will review the findings at its May Council meeting and I will report back to members on initiatives arising from this work. New Website and Rebranding Over the last few months, a significant amount of work has been done by our secretariat on the development of a new website and a new membership database. The new website enables users to access information more easily and we have added a number of new resources. Instructions on how to use the website can be found via the Help menu at the top of the screen. On p23 of this issue, you will find step by step instructions for updating your profile on our Find a Barrister directory. This is an excellent promotional tool for all members, including those members who donâ&#x20AC;&#x2122;t have websites of their own. Amongst other upgraded services, members can now renew their memberships via our website. On demand webinar CPD training will be rolled out on the website soon. As part of improvement of our online services, we have updated the Member Benefit App. Members will receive instructions on downloading the new app via email and a text message will be sent to members whose mobile phone numbers are in our records.

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Shanghai Delegation In February, Auckland members of the Council hosted a delegation of lawyers from the Shanghai Bar Association. Delegation members were interested in the role of the Bar within the wider legal profession, regulation of lawyers in New Zealand in general and the structure of Courts in New Zealand. Australasian Institute of Judicial Administration (AIJA) The Association has a seat on the Council of the AIJA. I recently attended a Council meeting in Sydney. Courts Modernisation Legislation On 1 March 2017, the District Court Act 2016, and the Senior Courts Act 2016 came into force. We have compiled a summary of some of the key changes in the Senior Courts Act, with brief comments on the District Court Act. We will be commenting on the Electronic Courts and Tribunals Act 2016 and the Judicial Review Procedure Act 2016 in due course. Please check the Practice Centre (under the Member Resources Menu) on our website for updates. Training â&#x20AC;&#x201C; the Australian connection Our Training Committee, headed by Chris Gudsell QC, is working on a combined NZBA/Advocacy Training Council Appellate Advocacy Workshop to be held in Brisbane in September this year. We are waiting on a couple of details to be finalised and will then advise members. Junior Lawyers Mooting Competitions We are working with the New Zealand Law Society Young Lawyers Committee to arrange regional mooting competitions in Auckland, Hamilton, Wellington, Christchurch and Dunedin later in the year. We will advise members of the details as they come to hand. We thank those members who contribute their time and who help with coaching and judging during the competitions. Sentencing Advocacy Competition We are again supporting Sentencing Advocacy Competitions in Auckland, Wellington and Christchurch. Competition dates will be on our website and notified to members via our email Member Update. Court Resourcing Working Group Wellington based Council member, Paul Radich QC, has been appointed as the NZBA representative on a New Zealand Law Society Court Resourcing Working Group, which is currently gathering information about resourcing issues and hearing delays in courts around the country. Law Reform Committee Our Law Reform Committee, chaired by Paul Radich, recently provided a response to the Law Commission which was seeking assistance with the Terms of Reference on its upcoming review of the Evidence Act 2006. We thank Paul Radich and Council member, Tiho Mijatov, for their work on this topic. The Law Reform Committee will be providing further comment to the Law Commission during its second review of the Act. Annual Conference Our 2017 Annual Conference will be held in Blenheim on 15 & 16 September. The Conference Committee will shortly announce the programme and the speakers. Preferential accommodation pricing is available to members at the Chateau Marlborough and Scenic Hotels, located just a short walk away from the conference venue at the Marlborough Convention Centre. Save the date! Clive Elliott QC President

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Committee Report – the Junior Bar By Lara Mannis, Tiho Mijatov and Gretta Schumacher*

drinks functions at Shortland Chambers in March and Richmond Chambers in April. More are lined up throughout the year and for south of the Bombays. We thank those Chambers who kindly host these events.

It is heartening to see that the junior bar – comprised of those with zero to seven years’ PQE – is growing. Calls from chambers for juniors are being heard in greater numbers and from new quarters. The NZBA has recently welcomed several new junior members.

But of course, life for juniors is not all pinot and crudités. The NZBA is eager to ensure it The Juniors Members Committee has been accurately represents the interests of the junior busy these past few months. The NZBA has bar and offers its support as best it can. To taken the plunge and entered the social media these ends, the responses to the recent NZBA scene, with Facebook and LinkedIn profiles for survey about experiences of those at the junior our Association up and running, together with a website upgrade with a dedicated section for the bar have been invaluable. Your challenges and suggestions for support have been heard. We Junior Bar. Junior members would benefit from are also working hard to develop and promote perusing all three as easy ways of remaining guidance material for those at the junior bar. alert to the Association’s nearby and upcoming goings-on. We’d also encourage our juniors to Not least of all we would draw your attention update their profiles on the NZBA website and to the NZBA’s extensive members benefits to contribute articles of interest to members for programme which, among the many and varied inclusion in At the Bar. benefits, includes discounts for legal database 2016 saw a Christmas get-together for Auckland- subscriptions and insurance. based juniors, as well as drinks functions at * Tiho Mijatov, Lara Mannis and Gretta Schumacher Shortland and Richmond Chambers.

are the NZBA Junior Barrister Council Representatives.

2017 promises more opportunities for the junior bar to catch up. There were very successful

New Members Duncan Ballinger Joanne Bates

Megan Leaf

WELLINGTON

Gregory Lloyd

DUNEDIN

Carolyn Bielby

AUCKLAND

Julian Long

Simon Cogan

AUCKLAND

Jeanette Mehrtens

Shane Elliott

AUCKLAND

Ian Robertson SC

Asher Emanuel

WELLINGTON

Grant Slevin

Emma Gattey

WELLINGTON

Timothy Stephens

Fiona Guy Kidd

Philip Swaine

INVERCARGILL

TE PUKE WELLINGTON AUCKLAND CHRISTCHURCH ADELAIDE CHRISTCHURCH WELLINGTON SYDNEY

His Honour Judge William Hastings WELLINGTON

Michael Timmins

AUCKLAND

Lawrence Herzog

AUCKLAND

Murray Tingey

AUCKLAND

Caitlin Hollings

AUCKLAND

His Honour Judge John Walker WELLINGTON

Erin James

AUCKLAND

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Hearsay from Beyond the Grave: Preston v R [2016] NZCA 568 Jadeine McLeod*

The issue At trial, the Crown adduced evidence of statements made by Ms Fan to various associates regarding her fear of Mr Preston and what he may do to her in retaliation for seeking full custody of their children. Mr Preston’s appeal challenged the admissibility of the following statements:1

Introduction In Preston v R [2016] NZCA 568, Mr Preston appealed his conviction and sentence for murdering his former wife, Rongmei Fan, by stabbing her 38 times to her face, neck and upper extremities. Mr Preston was convicted following a jury trial. He was sentenced to life imprisonment with a minimum period of imprisonment of 19 years.

a) 22 July 2013: Sequential texts from Ms Fan to the appellant: “Why U said U want me to die. Are U going to kill me?”

The appeal was based on a variety of grounds including challenging the admission of propensity evidence, hearsay evidence and privileged communications; failure of the trial Judge to put the defence case properly; and prosecutorial misconduct. The appeal against the decision of the trial Judge to admit hearsay evidence was considered by the Court in great depth. The Court of Appeal ultimately found that the hearsay evidence offered by the Crown was admissible and that the trial Judge correctly found that the prejudicial element of the evidence did not outweigh the probative nature of the evidence. 1

2 October 2013: Ms Fan told Sergeant Marner that she was worried about Mr Preston’s reaction if she obtained full custody of their children. She was fearful of her safety and said that sometimes the appellant was so crazy she worried he could kill her.

3 November 2013: a statement made by Ms Fan to her friend, Chrissy Teo where she indicated that she did not think she wanted full custody of their children “Cos Michael will kill me”. Ms Teo asked

Preston v R [2016] NZCA 568 at [33]. Note: the evidence at (a) and (b) was also challenged pre-trial, but (c) and (d) were challenged for the first time on appeal.

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her “Really?” and Ms Tan responded “Yes, demonstrate that the statement was made) and on other occasions the evidence was regarded definitely” and repeated that she was as having a hearsay purpose (that is, the truth “really, really scared.” of its contents were relied upon). The latter formed an exception to the general prohibition d) Late October – November 2013: Mr on hearsay. Both situations required a judicial Hoyhtya (Ms Fan’s new partner) stated direction as to the limited uses to which the that in a Skype conversation with Ms Fan evidence could be put.9 prior to her death, she told him that Mr Preston had said to her “I want to kill you.” Review of the decision in R v Liu [2015] NZHC Counsel for Mr Preston submitted that the above 1125 In undertaking its analysis, the Court of Appeal statements amounted to hearsay and were 2 in Preston considered the recent High Court unreliable, therefore inadmissible. The Court of decision of Liu. The facts in Liu bear some Appeal began its analysis by considering s 17 similarities to the facts in Preston in that the of the Evidence Act 2006, whereby a hearsay defendant was the husband of the deceased, statement may only be admitted pursuant and there was evidence to suggest that both to the Evidence Act or some other Act. The relationships were volatile. In both situations, Court then considered the exception to the the deceased had made comments to friends rule under s 18. There are two limbs of the test and associates indicating that they were that must be met in order for evidence to be concerned about their partners being violent deemed admissible. Firstly, that the maker of towards them, including statements that referred the statement is unavailable as a witness3 and to fear of being killed by their partners. On secondly that there is a reasonable assurance appeal in Preston, the Crown argued that the that the statement is reliable.4 The Court noted decision in Liu was the incorrect. Counsel for Mr that even if the evidence met this test, there Preston argued that Liu was decided correctly would still be the requirement to meet the tests under ss 7 and 8 (whether the probative value of and was the approach that should be adopted by the Court of Appeal. the evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect In Liu, Katz J declined to admit the evidence of a on the proceedings). statement made to a friend of the deceased on the morning of her disappearance: “if one day I The Crown argued that the recent High Court 5 am dying you please quickly call the police and decision of R v Liu applied the incorrect Jack [Mr Liu] he’s the one who kill me.”10 In support approach to admissibility and sought that the of admitting the statement, the Crown argued Court of Appeal correct that decision. The that it was intended to show that the relationship argument advanced was that the statements in between the defendant and the victim was Liu and Preston were of a kind that would have unstable and becoming dangerous but that it was been admissible under pre-Evidence Act law not sought to be admitted to prove the truth of its and would also be admissible under the current contents, therefore was not hearsay.11 legislation given the wider approach to the 6 admissibility of hearsay statements. Katz J noted that it was not in dispute that the statement could not be relied on for the truth of The Evidence Act 2006 simplified the common its contents, that Mr Liu killed his partner, but law position on hearsay evidence.7 A point had that the statement was relevant because other been reached where there existed a number circumstantial facts might have been inferred by of exemptions in case law because of judicial the fact that the statement was made, and if those attempts to produce just rulings in a particular facts were accepted, they might provide a link in a case, but that resulted in the law lacking 8 simplicity and coherence. One of the exceptions chain of circumstantial reasoning that could lead the jury to conclude that Mr Liu killed his partner.12 related to evidence going to a person’s state of mind. It was noted that on some occasions, Justice Katz considered that, viewed in this way, evidence of this nature was classified as the statement was arguably relevant to motive, non-hearsay evidence (being used only to

At [35]. Evidence Act 2006, s 18(1)(b)(i). 4 Evidence Act 2006, s 18(1)(a). 5 R v Liu [2015] NZHC 1125. 6 Preston v R, above n 1, at [44]. 7 Law Commission, The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at 1.1. 2

The Court of Appeal referred to the comments of Cooke P in R v Baker [1989] 1 NZLR 738 (CA) at 741. Preston v R, above n 1, at [45]. 10 Preston v R, above n 1, at [59]. 11 At [60]. 12 At [60]. 8

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but because it was not relied upon for the truth of its contents, ruled it was not hearsay and did not have to meet the reliability threshold in s 18.13 An analysis under ss 7 and 8 of the Act was undertaken, and the Judge determined that the risk that the jury would use the statement for an impermissible purpose, as evidence Mr Liu did in fact kill his partner, outweighed the probative value. The Court of Appeal in Preston commented that, despite the Crown concession that it did not rely upon the statement for the truth of its contents, ultimately, it was relying on it for a hearsay purpose, as a piece of circumstantial evidence tending to prove Mr Liu killed his partner.14

The court then considered the balancing test in s 8. Ms Fan’s statements indicating threats to kill on the part of Mr Preston had obvious probative value. Although counsel for Mr Preston argued that the first statement was made in July 2013, thereby reducing its probative value, this argument was rejected as the statement was made during ongoing conflict between them.20 The Court of Appeal noted that the statements provided evidence that “… Ms Fan was fearful that Mr Preston might kill her, a fear engendered by him being ‘crazy’” and that the “…evidence was all relevant to and highly probative of the state of the relationship, Mr Preston’s conduct and, ultimately, Mr Preston’s motive to kill.”21 The Court of Appeal characterised this evidence as “… evidence of a circumstantial nature tending to prove that Mr Preston did kill Ms Fan.”22

Evidence Act analysis On appeal, Mr Preston did not challenge the reliability of the three witnesses’ evidence to the extent that they were accurately recounting Ms Fan’s statements to them, but challenged the reliability of Ms Fan’s statements, putting at issue whether Mr Preston made the statements to Ms Fan at all and whether or not she was exaggerating the extent of her fears.

The Court of Appeal noted that there was a risk of unfair prejudice, noting that Ms Fan’s statement about Mr Preston being ‘crazy’ may have unfairly influenced the jury against him, however the Court also noted that there was other evidence before the jury outlining Mr Preston’s mental health issues.23

It was further argued that the risk of unfair prejudice to Mr Preston outweighed the probative value of these statements when looked at in light of the reliability issues with them.15

The second risk of unfair prejudice was that the jury would place too much weight on the evidence. As was the case in Liu, the court noted that there is a risk that the jury will attach significant weight to someone who is seen to speak “from beyond the grave”24 to accuse a defendant. The Court of Appeal took the view that this risk was capable of being addressed through judicial directions. Reference was made to the excellent quality of the direction given by the trial Judge, which included warning the jury not to conclude the statements were direct proof that Mr Preston was the murderer; that they were not a message from the grave; and not to be “sucked into giving them more weight than they deserve”.25 The trial judge warned that they were evidence, if accepted, of the state of the relationship and Ms Fan’s fears about how Mr Preston might react over her plan to try and obtain full custody of their children.26

In attempting to cast doubt on the reliability of these statements at trial, counsel for Mr Preston argued that the fact that Ms Fan had not referenced the alleged threats from Mr Preston in affidavits filed in the Family Court demonstrated a lack of reliability. Counsel on appeal maintained that there was no evidence to support the reliability of the statements.16 This view was swiftly rejected by the Court of Appeal who found that “…the narrative overwhelmingly support[ed] Ms Fan’s account of a tempestuous relationship”.17 In rejecting this approach, the court noted strong evidence of Mr Preston’s obsession with Ms Fan and the custody dispute, of derogatory remarks about her to others and of attempts to disadvantage her, along with the fact Ms Fan had told Sergeant Marner of her fears for her safety.18 Accordingly, the court found that there was reasonable assurance that the statements were reliable under s 18.19 At [61]. At [63]. 15 At [70]. 16 At [72] 17 At [72].

Distinguishing the pre-trial decision excluding similar evidence During the trial, the Crown had sought to enter into evidence a comment Ms Fan had made during a Facebook exchange to a friend. During

At [72]. At [72]. 20 At [73]. 21 At [74]. 22 At [74].

At [75]. At [75]. 25 At [76]. 26 At [76].

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In respect of the effect of Preston on Liu, it is now more difficult for hearsay to be presented as something it is not, and the hearsay provisions avoided. Ironically, the reason the prejudice of the comment in Liu outweighed its probative value was because the Crown did not acknowledge its intention to use it for a hearsay purpose. If the statement by Mr Liu’s partner that if she was killed it would be Mr Liu that did it, was not being admitted for the truth of its contents, it is almost inevitable that the prejudice that the jury would use it for that purpose would be too great. However, as hearsay, the jury is permitted to use it that way and the prejudice falls away. From a defence perspective, while that position makes it more difficult to have such evidence excluded, it at least honestly confronts the evidence for what it is and its actual intended purpose.

the exchange the pair were discussing the news that a woman had been killed in Miramar, Wellington. In this context, Ms Fan stated “maybe one day Michael crazy can kill me too.”27 The Court of Appeal ruled that the statement was unable to satisfy the test under s 18, therefore was inadmissible. It could not be said that the statement was reliable given that it contained mere speculation by Ms Fan in discussing a related topic. Further, the probative value of the statement was doubted given that it was not obvious that Ms Fan intended for the comment to be taken seriously, as “crazy” is a colloquialism of uncertain meaning.28 The Court accepted that the statement had limited prejudicial effect given the jury would hear of other evidence of statements made by Ms Fan (such as the text messages asking why Mr Preston threatened to kill her), but because Ms Fan had not mentioned any threats such as this in her Facebook messages, the Court considered a jury may place more significance on the statement than it deserved, therefore the prejudicial effect of Ms Fan’s ‘prediction’ outweighed the limited probative value the statement provided. The evidence was therefore excluded.29

More generally, it is likely there will be an increase in situations such as these in the future. With people increasingly documenting their lives on social media and other communication channels, it is becoming simpler to access evidence of ‘unavailable witnesses’. While the evidence may be reliable in that what someone has said is written in black and white, caution and care must be taken in considering this evidence. The focus in Preston on the context in which statements are made and their tone is critically important. Given that a witness or victim who is now deceased cannot be crossexamined to establish their state of mind when making such a statement, an analysis of context and tone may go some way to mitigating risk.

Counsel for Mr Preston in appealing his conviction argued that the evidence that was excluded was analogous to the other statements raised on appeal. However, the Court of Appeal considered the pre-trial ruling was distinguishable on the facts finding that context was a key feature to be considered.30 In the pre-trial consideration, the statement was made in the context of a ‘gossip’ conversation about a recent event in the news, and it could not be determined whether Ms Fan’s statement was made flippantly or with serious intent. There was no clear indication that Ms Fan was genuinely trying to communicate a fear that her husband may kill her.31

Preston is also valuable in reinforcing the need for strong directions to the jury in cases such as this. Having weighed the probative value against the prejudice of comments from “beyond the grave” of the nature in Preston and Liu, it cannot be ignored that, despite the balancing test allowing the evidence in, “beyond the grave” evidence will feature prominently in individual juror’s minds. The direction given by the trial Judge in Preston, and endorsed by the Court of Appeal, was forceful and defence counsel can use the decision to insist upon equally robust directions in similar cases.

The future There is no doubt that the Evidence Act 2006 in its current form is simpler to understand than the previous legislation in respect of hearsay evidence. Prior to the legislation being enacted, the rule existed as a number of exceptions contained in many different judgments that were crafted to bring remedies to individual cases and at times sat uncomfortably as precedents.

* Jadeine McLeod is a Junior Lawyer with the Public Defence Service. This article was reviewed by Tania Singh, Senior Lawyer (Appeals), PDS.

At [77]. At [78]. 29 At [79]. 27

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At [80]. At [80].

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Recent Developments in Arbitration Law and Practice Derek S Firth MNZM*

This article focuses on three recent developments. The first is the Arbitration Amendment Act 2016 which came into force on 1 March 2017. It amends the Arbitration Act 1996 by:

a) broadening the definition of “arbitral tribunal” in s 2 to include arbitral institutions and emergency arbitrators which will allow awards rendered by emergency arbitrators to be enforced upon application to a court of competent jurisdiction; and

b) adding a new s 6A requiring the Minister of Justice to appoint a suitably qualified body to appoint arbitrators in accordance with Art 11 Sch 1, instead of the High Court. (Clause 1 Sch 2 provides a default appointment procedure for the appointment of domestic arbitral tribunals in the absence of agreement). However, it should also be noted that Sch 2 of the Act applies to every domestic arbitration unless the parties agree otherwise. Where cl 1 Sch 2 applies, that clause modifies Art 11 Sch 1 and excludes the jurisdiction of the High Court for an order appointing an arbitrator. The High Court may only intervene and appoint an arbitrator where cl 1 Sch 2 does not apply. (This mutually exclusive relationship is helpfully explained by Rodney Hansen J in Hitex Plastering Ltd v Santa Barbara Homes Ltd [2002] 3 NZLR 695.) Accordingly, the impact of this amendment is relatively minor as the Art 11 procedure for appointments will be only infrequently applicable. It remains to be seen which body will assist with such appointments. The second development is a recent example where the UK courts have demonstrated reluctance to intervene in arbitrations beyond what is expressly provided for in the Act,

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regardless of whether the parties have agreed to court involvement. In Enterprise Insurance Company Plc v U-Drive Solutions (Gibralter) Limited [2016] EWHC 1301 the court reinforced the finality of arbitral awards, and declined the right to appeal. The court distinguished awards from procedural orders, reinforcing that procedural orders carry no right of appeal under ss 68 or 69 of the Arbitration Act 1996 (UK ) which have their effective equivalent in Art 34 Sch 1 and cl 5 of Sch 2 of the Arbitration Act 1996 (NZ). In Enterprise Insurance Company Plc, Enterprise applied to the arbitral tribunal to effectively strike out the proceedings. The tribunal refused to dismiss the claim, issuing a Procedural Order to that effect. Enterprise then issued two challenges in the Mercantile Court pursuant to s 68 and s 69 of the UK Act. It argued (to justify striking out) that there had been a persistent, flagrant and systematic failure by U-Drive to comply with the tribunal’s orders. Enterprise also challenged an earlier procedural order on the basis that the tribunal erred in law in its approach to security for costs and failed to exercise its discretion by relevance to the relevant factors. Unusually, U-Drive consented to Enterprise’s s 69 applications being heard. The court dismissed both appeals. The court did not accept that the parties’ consent to their s 69 appeals being brought obviated the need for the court to establish that it had jurisdiction. The judge considered it doubtful that parties could confer jurisdiction where none would otherwise exist, giving as an example allowing appeals on questions of fact rather than law - a matter rather close to home in New Zealand! – refer Carr v Galloway Cook Allan [2014] NZSC 75. The short point was that the procedural orders did not constitute “awards” for the purposes of s 68 and s 69 of the Act, an award meaning a final determination of a particular issue or claim in the arbitration. (It was common ground that one of the procedural orders would have been an “award” had it struck out the claim for failure to comply with the peremptory orders.)

The order relating to security for costs was not an “award”. The refusal to strike out an arbitral proceeding was not an “award”. The third, and very interesting development is the issuing of amended Rules by the ICC Court of International Arbitration. These new rules took effect from 1 March 2017. They introduce more efficient procedures for disputes involving US$2m or less.

(b) the parties have agreed to opt out of the Expedited Procedure Provisions; or

(c) the Court, upon the request of a party before the constitution of the arbitral tribunal or on its own motion, determines that it is inappropriate in the circumstances to apply the Expedited Procedure Provisions. Appendix VI contains various provisions including,

From 1 March 2017, Expedited Procedure Rules will automatically apply to all ICC arbitrations with amounts in dispute below US$2m and to cases involving higher amounts on an opt in basis. This new service will ensure that disputes will be resolved on an expeditious and costeffctive manner, providing an answer to the legitimate concerns of the business community as to time and costs in international arbitration.

Article 2: Constitution of the Arbitral Tribunal 1. The Court may, notwithstanding any contrary provision of the Arbitration Agreement, appoint the sole arbitrator. 2.

Under the Expedited Procedure Rules, the ICC Court will normally appoint a sole arbitrator, irrespective of any contrary term in the underlying commercial agreement. Awards will be made within six months from the case management conference, with extensions granted only in limited and justified circumstances.

Article 3(2): After the tribunal has been constituted, no party shall make new claims, unless it has been authorised to do so by the arbitral tribunal, which shall consider the nature of such new claims, the state of the arbitration, and cost implications and any other relevant circumstances.

Article 30 provides as follows: Expedited Procedure 1.

By agreeing to arbitration under the Rules, the parties agree that this Article 30 and the Expedited Procedural Rules set forth in Appendix VI (collectively the Expedited Procedure Provisions) shall take precedence over any contrary terms of the arbitration agreement.

2. The Expedited Procedure Rules set forth in Appendix VI shall apply if: (a) the amount in dispute does not exceed the limit set out in Article 1 (2) of appendix VI at the time of the communication referred to in article 1 (3) of that Appendix; or

(b) the parties so agree. 3. The Expedited Procedure Provisions shall not apply if:

(a) the Arbitration Agreement under the Rules was concluded before the date on which the Expedited Procedure Provisions came into force;

The parties may nominate the sole arbitrator within a time limit to be fixed by the Secretariat. In the absence of such nomination, the sole arbitrator shall be appointed by the Court within as short a time as possible.

The Appendix goes on to provide for a case management conference no later than 15 days after the date on which the file was transmitted to the arbitral tribunal. The arbitral tribunal has a discretion to adopt such procedural measures as it considers appropriate including, after consultation with the parties, to decide not to allow requests for document production or to limit the number, length and scope of written submissions and written witness evidence of both fact witnesses and experts. The tribunal may, after consulting the parties, decide the dispute solely on the basis of the documents submitted by the parties, with no hearing and no examination of witnesses or experts. When a hearing is to be held, it may be conducted by video conference, telephone or similar means of communication. The tribunal must render its final award within 6 months of the date of the case management conference.

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cost effective resolution of disputes under $2.5m ($5m in respect of international arbitrations) and operate by default according to amount in dispute; appointment of a sole arbitrator in respect of all expedited procedures and under the general rules In New Zealand, the New Zealand Dispute unless parties agree otherwise; appointments made Resolution Centre (NZDRC) (http://www.nzdrc. by NZDRC within 10 working days where parties co.nz/) has long made provision for expedited do not agree on composition of the arbitral tribunal; procedures. NZDRC’s current Expedited expedited appointment procedures for tribunal Commercial Arbitration Rules provide for: within 24 hours where urgent interim relief sought (no emergency arbitrator required – appointee • ECA45 - a final award is to be made within 45 continues to act unless parties agree otherwise); a working days, with the matter proceeding on code to govern the conduct of party representatives the documents. A Fixed Fee Low Value Claim (duties and sanctions) to protect the integrity of service is also available for ECA45 claims where the arbitral tribunal and the arbitration; formal the amount in dispute is less than $50,000 procedures to govern joinder, consolidation and subject to certain criteria regarding the number multiple parties/multiple contracts; encourage of issues in dispute and the volume of material parties to use mediation – introduces mandatory which may be submitted. stay of arbitral proceedings where parties agree to • ECA60 - a final award is to be made within 60 mediation; comprehensive arb-med provisions to working days, with a hearing if requested by the permit arbitrator to act as mediator where parties agree; comprehensive confidentiality regime; parties not to exceed three days in duration. guidelines for expert evidence and a code of • ECA90 - a final award is to be made within 90 conduct for expert witnesses; and the 2017 rules working days, with a hearing if requested by incorporate the AMINZ Arbitration Appeals Tribunal the parties not to exceed five days in duration. on an opt-in basis. The ICC Court of International Arbitration manages over 700 cases a year, and although the average claim is in the region of US$80m, approximately 25% are for US$2m or less.

The NZDRC is due to launch a revised suite of rules governing its arbitration procedures later this year. The New Zealand International Arbitration centre (NZIAC) will also launch a revised suite of arbitration rules at the same time including rules for 60 day, 90 day and 120 day expedited international arbitration procedures. Key features include: fixed and/or capped fees for all arbitrations; expedited rules ensure prompt and

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* Derek Firth is a Commercial Barrister specialising as an arbitrator, mediator, and construction adjudicator. He also consults in construction law and overseeing all legal aspects of major projects; acts as independent legal adviser and Dispute Board member to the Engineer to the Contract or Project Manager; and acts as a Probity Auditor or Adviser. Derek is a Chartered Arbitrator (UK), and the former NZ Alternate Member of the ICC Court of International Arbitration.

Hon. Justice John Wild Retires The NZBA marks the retirement from the Bench of the Hon. Justice John Wild. A former colleague in chambers discusses the early part of the Judge’s career. Francis Cooke QC and barrister, Matthew Smith, then offer perspectives on His Honour’s career at Bar and then Bench.

The Early Years

By Michael Webb, Barrister* The Hon Justice John Wild was educated at Nelson College. His final year at Nelson in the “upper sixth” was my first, in form one. We were both in Rutherford House. Even then the future judge had a presence and bearing that made him stand out. He was a superb debater. He had a passion for tramping and mountaineering, venturing out on tramps and climbs of a kind which schools today would find challenging to allow under current health and safety constraints. He mentored well the younger ones under his charge, doing so with a watchful eye and quiet sense of humour. Later, in the mid-nineties, when after having been a commercial partner in a law firm I decided to practise at the Independent Bar, the Judge was particularly supportive, generously offering me the opportunity to join him in his chambers. His qualities of focus, determination, preparation and self-reliance, which I had started to come to know those many years earlier, came through strongly in his practice and his approach to his work. His times away mountaineering in China, South America and elsewhere were, to me, the flip side of the same coin. There was no doubting his commitment to the Independent Bar and his affinity with its role, privileges and obligations. Similarly, his support for the Bar Association. He took delight in selecting extracts – whether witty, pithy, laconic or simply striking - from judgments as they were reported for inclusion in his “Judicial Rose Garden” piece in each Bar Association newsletter. In chambers, although our areas of practices were different, he was always a willing sounding board and had a great ‘feel’ for the law which for me, new to the Independent Bar, was invaluable.

He was also strong on what he thought the role of the law and legal process in particular should be. On one particular aspect, I recall discussing with him the length of judgments. The future judge selected a volume of the New Zealand Law Reports from the 1960’s and flipped through it showing judgments averaging only a few pages to make his point. He was clear in his approach that the key was getting to the essence of the case, deciding what the key facts and issues were, applying the law to them, and expressing the outcome concisely. He has been a leader at the Bar and on the Bench and, throughout, a warm, deep and thoughtful person. *Princes Chambers, Auckland, 20 March 2017

Judicial Rose Garden Flat Earth and Error “There were two questions of law in the present case. To accept that they are still capable of bona fide argument would be to indirectly acknowledge the possibility that the decision I have already given is less than infallible. Such a possibility is never easy to envisage but no doubt members of the Flat Earth Society encounter the same difficulty. It may be more palatable in these cases to ask not whether there is any possibility that my decision was incorrect - an unreasonable demand to place upon the imagination - but the quite different question whether the Court of Appeal might wish to take a different view. Experience suggests that the latter is not inconceivable. Per Fisher J in Robinson v Auckland City Council 30/10/95, HC Auckland, CP70/95, p1. Published in the New Zealand Bar Association’s newsletter, May 1996

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Portrait of a Professional By Francis Cooke QC*

There are some Judges who make contributions extending beyond their contribution to jurisprudence. John Wild is one of those Judges. That is because he cut a new path in his professional life that others could follow. It can fairly be said that he was one of the pioneers of the Independent Bar in New Zealand. The temptation would have been to the opposite effect. As a member of one of New Zealand’s distinguished legal families, he initially followed a conventional professional career. He graduated from Victoria University in 1968 and then worked at Bell Gully as a solicitor in 1969 and then from 1974 to 1976. It is then that the independent spirit, which explains much about his personality, kicked in. In what would have been regarded as a most surprising and unusual step in those days, he left the firm to set up his own practice as a barrister at the age of 28. Even today going to the bar takes courage. It is a test of character as well as ability. You must have confidence that someone will brief you. But to have done so in 1976 when there was very little, if any, tradition of a junior bar can properly be regarded as pioneering. At the time, there were only two other junior barristers at the bar. For someone with his background it may have been an important step, however. It involved leaving the safety of the protective institutions, and the cultures that go with them, to make his own way. In an interview given to the New Zealand Law Society on his appointment to the Court of Appeal, His Honour stressed that going out to the bar meant that you were very much an individual - “You really are truly independent, you don’t have the loyalties to important clients that sometimes plague litigators in firms. I think the true independence and objectivity that barristers bring is one of the great attributes of the bar.” He also recorded that he met a “huge variety of people from lots of different backgrounds … much more so than I ever would have done if I decided to take partnership in a firm”. For someone who came from a family steeped in legal tradition, this greater exposure to the wider community may well have been formative. It allowed him to develop the breadth of understanding of people and communities that characterises his approach to judging.

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The work that he then got at the bar, initially in the criminal area, but then increasing in civil came from provincial firms or firms that had no litigators of their own. This meant that he had to work hard, and deal with a wide variety of cases. But the work grew, and he ultimately developed a distinguished practice. This included work of public significance, such as becoming involved in significant inquiries such as the Abbotsford Landslip Inquiry, the Marginal Lands Board Inquiry, and the Wellington District Court Inquiry. Ultimately, he had 22 years at the bar. He was appointed a Queen’s Counsel in 1993, five years before his appointment as a High Court Judge. These attributes also characterise the Judge’s judicial career. Independent, open minded, intellectually rigorous yet understanding of the perspective of other members of the community. Matthew Smith will be addressing His Honour’s contribution to New Zealand jurisprudence. But for those of us who subsequently contemplated going to the bar as a junior barrister wishing to focus in the civil rather than criminal area, Justice Wild was something of a role model. He showed the way for later generations. The Bar Association was formed during his time at the bar, and he became its President in 1998 shortly before his judicial appointment. The Independent Bar has now flourished, and increasing numbers of junior barristers are following the path that it can fairly be said His Honour helped create. The Judge has a great love of the outdoors, including of mountain climbing. The image of the pioneer is accordingly appropriate for him. The photograph accompanying the 2011 New Zealand Law Society article for which he was interviewed captures him during a skydiving free fall (see p19), rather than involving a more traditional portrait. The image captures the person perfectly. A courageous jump following which one sees the world more broadly. He has cut a track for others to follow, and we salute his significant contribution to the bar in New Zealand. *Thorndon Chambers, Wellington, 15 March 2017

On Justice Wild’s Contribution to the Law as a Judge By Matthew Smith*

In 1998 Justice Wild swore the judicial oath to “do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill-will”. Over the 19 years that have followed, initially as a judge of the High Court and since 2011 as a judge of the Court of Appeal, His Honour has faithfully discharged that weighty responsibility. And, in doing so, Justice Wild leaves the Bench having made a significant contribution to our law. Before considering Justice Wild’s jurisprudential contribution, I want to note His Honour’s first judgment. It was Skinner v Clean Garden Holdings Ltd (in liq.) HC Wellington AP157/98, 14 September 1998, an 8-page decision declining an application for special leave to appeal a District Court summary judgment. This was an oral judgment. So was Justice Wild’s third judgment, which was issued on 18 September 1998. I note this because Justice Wild recalls the then Chief Justice, Sir Thomas Eichelbaum, saying to him the first morning he was sitting on his own something along the lines of “Try and give an oral judgment. If you do you will never look back”. At a time when the oral tradition is under pressure, and we seem unfortunately to be moving further and further away from it, both in terms of advocacy and in terms of judgments, the then Chief Justice’s encouragement offers to this day words of advice we can heed more broadly: that if judge (and, I would add, counsel) work really hard before and during a hearing, key issues can be honed in on, and timeliness, clarity and efficiency achieved (see to similar effect J. E. Côté, “Oral Judgment Practice in the Canadian Appellate Courts” (2003) 5 J. App. Prac. & Process 435). As they say, the proof of all that is in the pudding. And Justice Wild’s judgment in Gill Construction Co Ltd v Ivan Weavers Tyre Centre Ltd (2007) 8 NZBLC 101,934 (HC) bears that out. It was another oral judgment, issued by His Honour at the conclusion of a three day hearing. The judgment is triply notable: it was an oral judgment, it came to be reported in the NZBLC’s, and the Court of Appeal upheld it

on appeal (see Ivan Weavers Tyre Centre Ltd v Gill Construction Co Ltd [2008] NZCA 167). This illustrates that oral judgments can not only offer the tremendous relief of finishing the ‘job’ while everything remains fresh in the mind, but they obviate any need to have to come back – sometimes quite a while later – and try and “re-grasp” a case that is removed from the oral advocacy through which it was refined. Returning to Justice Wild’s significant contribution to our law, one cannot help but note that the statistics bear this out. An electronic Westlaw search for judgments by Justice Wild from 1998 returns 1,485 results. This evidences the large number of civil and criminal disputes His Honour has determined over his 19 years as a judge. But it is not just the contribution, by number of judgments, that is striking. On review, a large number of Justice Wild’s decisions can be found reported in our law reports. Indeed, in the NZLRs alone there are 47 decisions (and counting) by Justice Wild. This is recognition not only of the significance of His Honour’s judgments beyond their immediate facts, but of the (further) life His Honour has breathed into important legal principles through his reasons for decision. On the last point, it is a rather difficult exercise to try and identify Justice Wild’s judgments of particular significance, not because those are few and far between, but because of the ‘eye of the beholder’ quality to ‘significance’ in a context like the present. For instance: • A criminal practitioner might point to Smith v R [2014] 2 NZLR 421 (CA) and R v Martin [2004] 3 NZLR 69 (HC) as among His Honour’s more significant judgments. Smith addresses whether a jury can be invited to infer guilt from the failure to raise self-defence until trial (‘no’). Martin is on the defence of double effect (which permits the administration of pain killing drugs to alleviate a terminally ill patient’s pain and suffering despite knowledge that the drugs will have the incidental effect of shortening the patient’s life) and whether it is confined to doctors (‘yes’).

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•

A human rights practitioner might point to Browne v Canwest TV Works Ltd [2008] 1 NZLR 654, (2007) 8 HRNZ 499 (HC), an important decision not only in addressing the way that NZBORA impacts on the exercise of discretion (‘the particular interpretation or application ought to be justifiable in terms of s 5 of NZBORA’) but for Justice Wild’s analysis of how NZBORA religious rights are to be balanced against the right to freely speak on matters that confront beliefs held by others.

•

A commercial practitioner might point to Justice Wild’s contributions to company law, such as His Honour’s decision in Hedley v Albany Power Centre Ltd (in liq) [2005] 2 NZLR 196, (2004) 9 NZCLC 263,658 (HC) on derivative actions under the Companies Act and how to ascertain the best interests of the company in a breach of directors’ duties context. Or to tax law, where I understand that Justice Wild’s decision on the difference between capital and revenue expenditure in Milburn New Zealand Ltd v Commissioner of Inland Revenue (2001) 20 NZTC 17,017 (HC) remains the go-to case on this important issue.

• In an area close to my own heart, administrative law, Justice Wild’s contributions are many and varied, but one in particular stands out, at least to me. It is His Honour’s decision in Wolf v Minister of Immigration (2004) 7 HRNZ 469, [2004] NZAR 414 (HC). That Justice Wild judgment contains the most thorough analysis by a New Zealand court of proportionality as a judicial review ground.

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It also addresses the relationship between proportionality and unreasonableness. The contribution that judgment has made to the law continues to be recognised in the legal academy, as a recent New Zealand Law Journal article by Otago University’s administrative law expert, Marcelo Rodriguez Ferrere, bears out. In it Marcelo writes approvingly of Justice Wild’s “valiant attempt at reformulating unreasonableness” in the Wolf decision (see “Redefining reasonableness”, [2017] NZLJ 67 at 69).

While we might as practitioners reasonably disagree on what Justice Wild decisions are to be regarded as the most significant judgments, probably we all would agree that Justice Wild’s retirement will not bring an end to the influence he has had on the path of our law. That influence will continue through His Honour’s decisions, which will continue to be relied on by counsel and courts to identify and to evolve the legal principles which together embody our vision, for New Zealand, of the ‘good life’ we all want to live, by and under the law. * Thorndon Chambers, Wellington, 15 March 2017

Modernising our Senior Courts Act 2016 By Jacqui Thompson*

In some regards, the Government’s plans to modernise the judiciary arrived with a whimper, rather than a bang. The Judicature Modernisation Bill was divided into 23 Bills, all of which passed without much fuss. There was however one significant change. Although the Select Committee did not recommend its inclusion, the final form of the Senior Courts Act 2016 now contains the constitutional protection found in s3(2) of the Supreme Court Act 2003, which stated that nothing in that Act affected New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament. This provision had originally been omitted from the Bill, provoking controversy in the legal profession and outcry from the opposition. It suggested a constitutional change that had not been foreshadowed in the lead up to the legislation.1

Another provision that has caused controversy is s 12 of the District Court Act 2016, which caps the total number of District Court judges at 160. The section specifies that a part-time judge counts as a fraction of 1 and that the aggregate number (for example 159.5) must not exceed the maximum. Currently there are 178 judges available. This reduction in real numbers, combined with an increase in the civil jurisdiction of the District Court to $350,000 and an increase in the number of category 4 offences being heard, may lead to ever increasing strain on an already under resourced Court.2 This article concentrates in the main on changes relating to the Senior Courts. The District Court Act 2016, the Electronic Courts and Tribunals Act 2016 and the Judicial Review Procedure Act 2016 will be dealt with later.

District Court Act s 3 One of purposes of the Act is to “improve the transparency of court arrangements in a manner consistent with judicial independence” s 12 A new cap on judges of 160 theoretically increases the judicial complement by four, but in fact actually lowers the number of available judges from 178 (which includes part-time acting warranted judges). s 18 The Chief Justice, in consultation with the Chief District Court Judge, must develop and publish a protocol containing guidance on the employment or offices, or types of employment or offices, that he or she considered might be undertaken consistent with being a Judge. s 74 Civil monetary jurisdiction is increased to $350,000 s 240 Proceedings commenced under the District Courts Act 1947 are to be continued under that Act. ss245 – 247 The District Courts Rules 2014 are renamed as the District Court Rules. Senior Courts Act: High Court s 7 The number of judges capped at 55 but there is power to appoint additional judges in the event of the absence of any Judge on leave preliminary to retirement; or the anticipated absence of any Judge on leave preliminary to retirement. s 19 The commercial list has been replaced by the commercial panel of the High Court established. The types of proceeding that are suitable for this panel are specified by Order in Council. Any party may nominate that its case be heard by a panel and the Chief High Court Judge will assign the case to a judge or judges from the panel (s19(6)). Matters of practice or procedure relating to the commercial panel or other panels will be covered by the High Court Rules. McGechan on Procedure para SC3.02 accessed online 23 March 2017. See for example the comments of NZBA President, Clive Elliott QC in an interview with Radio NZ 31 October 2016 http://www.radionz.co.nz/news/ national/316895/concerns-new-law-will-further-strain-court-system accessed March 2017. 3 This article was primarily prepared with guidance from Sim’s Court Practice (NZ) (LexisNexis NZ) www.lexisnexis.com/nz/legal and McGechan on Procedure (Thomson Reuters, NZ) www.westlaw.co.nz. Members should enquire with the NZBA about the discounts on subscriptions to these products offered by the respective publishers. 1 2

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s 19 Section 19(3) opens the door for increasing specialisation in the High Court by allowing for other panels to be appointed by the Chief High Court Judge, acting in consultation with the Attorney-General and the Chief Justice. s 20 The Associate Judges’ jurisdiction and powers are now set out in one section (s20) and include the addition of s20(1)(b) reinstating a company to the Register of Companies; s20(1)(c) any matter arising under the Insolvency Act 1967; and s20(1)(d) case management of proceedings under the Admiralty Act 1973. s 27 There have been substantive changes to appeals against decisions of Associate Judges. The distinction between decisions given in chambers and in open court has been removed. Now, an order or decision of an Associate Judge can only be appealed to the Court of Appeal (s27). Leave is required unless it is an order or decision of striking out or dismissing all or part of a proceeding, claim or defence (s 56(4)(a)); or granting summary judgment (s 56(4)(b). s 34 The Registrar’s powers provision is simplified but contains a general statement that the Registrar and Deputy Registrar have the duties and powers necessary or desirable to ensure the efficient and effective administration of the business of the Court. s 40 Section 40 (Arrest of defendant about to leave New Zealand) has been redrafted in line with s210 District Courts Act 2016. The previous procedure was traceable back to the prerogative writ of ne exeat regno (“let him not leave the kingdom”) s 42 The maximum fine for a witness’s failure to attend a civil proceeding has been doubled to a fine not exceeding $1000. s 44 This section dealing with when the High Court may require a person to undergo medical examination, introduces two changes to its predecessor provision (s 100 Judicature Act 1908). Whereas s 100 provided for examination by “1 or more” medical practitioners, s 44(1) specifies just one. In addition, because the Act binds the Crown (s95), the references to the section applying to the Crown and providing that it does not affect the Workers Compensation Act 1956 have been omitted. s 143 In common with the District Court Act 2016, the Chief Justice is required to develop and publish a protocol containing guidance on the employment undertaken and offices held, that she considers may be undertaken consistent with being a Judge or an Associate Judge. This was introduced to deal with a perceived lack of clarity as to the scope of other employment or office which could be accepted. s 147 The High Court Rules are deemed to be part of the Act, but they are now to be published as legislative instruments under the Legislation Act 2012 (s154). Court of Appeal s 49(3) A single judge can hear uncontested applications or other uncontested matters (other than appeals). There is an automatic right of review of any decision made by a single judge (s 49)(4)) s 50(3) Where a matter is to be heard by a full court, the judges must be permanent judges of the Court of Appeal (s 50(3)). s 56 This section sets out the jurisdiction in a more comprehensive way than its predecessor. In particular, in s 56(3)–(6), it sets out the procedure for dealing with appeals from interlocutory applications. This was previously controlled by case law. Of note, the leave requirement (s 56(3)) changes the effect of Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309, (2011) 21 PRNZ 145. s 57(b) There is a new provision dealing with remitting proceedings to the High Court. It specifies that the Court of Appeal may order a new trial in the High Court of a civil or criminal proceeding that is the subject of an appeal. s 58 Removes the criminal and civil division distinction s 59(2) Transfer of civil proceedings from the High Court to the Court of Appeal is now made by application to the Court of Appeal. s 64 The Registrar (and Deputy Registrar) of the Court of Appeal has been given more extensive powers including, under s64(1) (b) the powers and duties necessary or desirable to ensure the efficient and effective administration of the business of the Court of Appeal.

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s 84 This is a new provision dealing with the situation where a Judge dies in office or becomes unavailable, and the court has yet to deliver a reserved judgment. This provision was modelled on the comparative Supreme Court provision (s 84 previously s 30 Supreme Court Act 2003). Supreme Court Pt 4 The provisions of the Supreme Court Act 2003 have been largely re-enacted. However, the general provisions of the Senior Courts Act 2016 will now apply to the Supreme Court except in so far as otherwise stated. s 88 The powers and duties of the Registrar, Deputy Registrars and other officers are expanded to include those conferred or imposed by this Act, rules made under this Act, or any other enactment (previously confined to rules made under the Judicature Act). General provisions s 94(b) A person who has qualified in law and been admitted to the bar in New Zealand but has held a practising certificate in a jurisdiction other than New Zealand is now eligibility for appointment as Judge or Associate Judge (s 94(b).) s 98 A person can only be appointed President of the Court of Appeal if they are a High Court Judge, or appointed a High Court Judge at the same time as being appointed President of the Court of Appeal (s 98(1)). If a Supreme Court Judge is appointed President of the Court of Appeal, they cease to hold office as a Supreme Court Judge (s 98(2) â&#x20AC;&#x201C; (3)). A person can only be appointed Chief Justice if they are a High Court Judge, or appointed a High Court Judge at the same time as being appointed Chief Justice (s 99(1)) s 134 Section 134(1) is a new provision and provides that a High Court Judge may be removed from office only in accordance with s 23 Constitution Act 1986. Section 23 provides that High Court is not to be removed from office except by the Sovereign or Governor-General. The Attorney-General would address Parliament, which would then make the decision as to removal. s 165 Section 165 (Contempt of court) replaces s365 Criminal Procedure Act 2011, which is repealed from 1 March 2017. ss 166 - 169 In response to concerns about the increasing number of vexatious litigants, there is a new regime. The High Court can issue three progressively more extensive orders (limited, extended, or general), restricting a person from continuing or commencing civil proceedings. For each of these orders, the Judge must consider that at least two proceedings are or were totally without merit. An order made under s 166 has effect for up to 3 years but the Judge can be for a longer period (not exceeding 5 years) if the judge is satisfied that there are exceptional circumstances justifying the longer period (s168). Only the Attorney-General can apply for a general order, but the High Court can make any of the orders on its own volition (s169). s 170 The Chief Justice, the President of the Court of Appeal and the Chief High Court Judge are required under s170 to publish information about the process for parties to obtain information about the status of reserved judgments; the number of judgments outstanding beyond a reasonable time for delivery; and any other information about reserved judgments that is useful. s 171 Under s171, the Heads of Bench must develop and publish guidelines for their respective courts to assist judges to decide whether they should recuse themselves from a proceeding. s 173 This section governs access to court information, judicial information, or Ministry of Justice information and specifies if and when it can be accessed. s 179 Section 179 (Judgment against one of several persons jointly liable not a bar to action against others) does not substantively change s 94 Judicature Act 1908, but it clarifies that it does not apply where Pt 5 Law Reform Act 1936 applies. s 185 Section 185 deems that the rules listed have been made under s148 and that notwithstanding the repeal of ss 51A to 51D Judicature Act 1908, relating to other rules, those rules continue in effect. * Jacqui Thompson is the NZBA Training Director and an independent legal research consultant.

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NZBA Barrister’s Directory – Your Web Presence By Lisa Mills*

We hope you are enjoying the new look NZBA website. Updating our 2009 website was becoming a priority with technology moving forward at a fast pace, the old site was not device responsive and looked very dated. We have tried to incorporate a more modern look, a better, easier, user-friendly experience into what has grown into a quite large multi-faceted site representing our large member database. All of this with the tightest budget we could manage. In this article I have tried to provide a few easy steps to assist you to navigate and complete basic website processes including changing your private details, and your public “Find a Barrister” profile listing. Most of this information can also be found in the help pages and the FAQs on the new site. Using your member portal The new system only allows unique email addresses, so you can no longer inadvertently create multiple profiles. Provided you use only one email address to login - the email address we send your member updates to – the profile you have on our system will have all of your membership information attached to it. • Click on the Member Login button located on the top right corner of the home page, and use

your email address as your login. If you have not logged in before you will need to reset your password. A system generated email/ password will be sent to your email address. Use this to login. You will now be logged in – login will now read logout. • Choose the “My Portal” menu option on the top menu. This is where you can view your member information, both private and public, and change your password to one you can remember (select Login Details on the left side menu to change your password). The left hand menu items are explained below.

My Account Member Portal: this is the page that you see on logging in. It contains your details and recent news items. Login Details: change your email and password here. Transactions: view purchases and membership subs. Personal Details: basic details are your name and post nominals. Additional details under this tab include your gender, and phone contact details. These are member only details and will not appear on your profile. Communication Preferences: turn on and off our emails to you. Addresses: update the address(es) we have on file for communicating with you. Businesses: this is the chambers our system has you attached to. Please email any changes to nzbar@nzbar. org.nz. Bio and Additional Profile Information: this is your public profile in the Find a Barrister Directory listing on the website (read on for more information).

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Updating your “Find a Barrister” public profile listing A listing in the NZBA “Find a Barrister” directory is a great tool, especially if you do not have your own website. Make the most of it by keeping your listing relevant, inviting and appealing. Any information you put into your Bio will be shown publicly in the Find a Barrister directory. Upload a photo, background photo, CV and include a statement about you. Select relevant areas of practice so you are searchable under your specialties. While photos were migrated to the new site, some of them were not of a standard that would carry across well. Now would be a good time to check your photo and if yours is bad or missing, upload a new one. The following steps will assist, but if you get stuck give us a call and we can assist. •

Click on “Bio” and then “edit “. In the first screen you will be asked for your permission to make these details public. Add your email address, photo and your experience level. Your email address will not display, but visitors will be able to complete a contact form which will go directly to you.

• Choose “About Me” to add a short introductory paragraph, and a background photo (which displays behind your photo). • Under “Contact Info”, add your contact details. If you do not want your mobile number or physical address to show do not add them here. • Under CV, upload a current CV - ensure it is a PDF so that it can’t be edited by third parties. • Click save before you exit. • Choose “Additional Profile Information” then ”edit” to change areas of practice qualifications or practice locations. Save on exit. Future articles will cover how to register for events and access your CPD information. *Lisa Mills is the NZBA Administrator and Event Coordinator. If you have any queries about the website or your membership, please contact Lisa on 09 303 4515 or email her: nzbar@nzbar.org.nz.

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Product Review – Sim’s Court Practice Jacqui Thompson *

One of the many products offered on the LexisNexis E-Library plan for users is Sims Court Practice. * In 1892 the first edition of The practice of the Supreme Court & Court of Appeal of New Zealand by Sir Robert Stout and William Alexander Sim (to be known for many years as Stout and Sim) was published in Dunedin. As might be expected of a product that is over 120 years old, it has grown from its original 262 pages long, to a two-volume loose-leaf. And of course, it is now available online in a research library format and on LexisNexis Red as a fully searchable E-book with the ability to update it in minutes and annotate it as you work. The current authors of Sim’s Court Practice (as it is now called) are Hon Justice John Faire, Matthew Casey QC, Christopher Corry, Philip McCabe, Hon Justice Sally Fitzgerald, Graham Taylor, and Peter Twist. It is updated a minimum of six times per year. The content of Sims is comprehensive (see list) as would be expected with a publication with this pedigree. There is a temptation to compare coverage to that of its Thomson Reuters competitor, McGechan on Procedure, first published in 1985 when the High Court Rules were introduced. Each publication has its own strengths so it is wise when preparing for court to check both publications. Sims (and its companion District Courts Practice) are available on the LexisNexis E-Library for NZBA members. This comes with free access to LexisNexis Red – an e-book platform. For users, this means complete portability and no need to update by filing pages. Notes that practitioners make about provisions are never lost, as they transfer through on updating (unlike the hardcopy where someone throws out the page that has your useful sticky on it). One under-utilised feature of the LexisNexis online research platform is “explore by topic”. This is excellent if you are not sure precisely what you are looking for, or your search techniques are not the best. It is the equivalent to scanning an index. Most people confine themselves to looking for a publication name. By clicking on the explore by topic tab, you can select a general topic and expand the hierarchy to view all subtopics, which expand again until you drill down to the narrow topic heading. You end up with a refined set of results that are relevant to your topic across the full range of publications. Ultimately the choice of civil procedure manual is going to depend a great deal on how integrated it is with the rest of what you are using. This is particularly so with the requirements for e-bundles. And of course, being able to use an iPad or similar in court and still navigate with ease makes the e-book platforms very attractive. However, whichever product you choose, the key is learning how to use it. The publishers all offer online help as standard and webinars to back these up. The webinars are CPD compliant. Users should consider upskilling and refreshing their knowledge regularly. * Jacqui Thompson is the NZBA Training Director and a legal researcher. More information about the LexisNexis/NZBA e-library Package is available from Matt Pedersen at Matthew.Pedersen@lexisnexis.co.nz Tel: 09 368 9515

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Sims - Coverage

The Judicature Acts Comparative High Court Rules High Court Rules Costs and Fees Judicial Review Senior Courts Act Court of Appeal Rules Supreme Court Appeals Other Legislation: • Crown Proceedings Act 1950 • Declaratory Judgments Act 1908 • Oaths and Declarations Act 1957 • Oaths and Declarations (Māori Language) Regulations 2004 • Reciprocal Enforcement of Judgments Act 1934 • Administration Act 1969 • Habeas Corpus Act 2001 • Trans-Tasman Proceedings Act 2010 and Trans-Tasman Proceedings Regulations and Rules 2013 • Trans-Tasman Proceedings Regulations and Rules 2013 • High Court (Trans-Tasman Proceedings Act 2010) Amendment Rules 2013 Practice Notes • PN1 Judicature Act 1908 Procedures Adopted by the Court of Appeal of New Zealand/Te Koti Pira O Aotearoa • PN 2 2016 Practice Note: The Use of Electronic Common Bundles and Electronic Casebooks in the High Court HCPN 2016/1 (civ and crim) • PN 3 In-Court Media Coverage Guidelines 2016 • PN 4 Commercial List • PN 5 High Court of New Zealand Fast Track Practice Note • PN 6 Judicial Settlement Conferences The High Court Guidelines • PN7 Higher Courts Civil Electronic Document Protocol 12 April 2016 Appendices Appendix 1 – Injunctions Appendix 2 – Arbitration Appendix 3 – High Court Rules for Insolvency proceedings under the Insolvency Act 1967 Cases

Should Lawyers Retire to a Beach or Stay at the Bar? By Laetitia Peterson*

A means-tested old age pension for those 65 years and older was introduced in New Zealand in 1898, but it was Otto von Bismarck, the conservative President of Prussia, who first put forward the idea to provide financial support to older members of society, seventeen years earlier in 1881. The idea was considered radical because, back then, people just didn’t retire. If your heart was beating you worked, probably on a farm, or if you were wealthier you might have managed the farm or a larger estate. Plus, not many people lived to 65, so it was an easy bet politically. Now, over 130 years later, working into your retirement for some people still seems like a good idea, both emotionally and financially. More on that later in this article. Clinical psychologist, Dr Jack Williams, says “To have a thriving retirement, you need to be doing something you believe in and that feels important to you.” In other words, retirement is a “career change” by lawyers with the financial freedom to allow work to be optional. When to retire? While conducting research for my book Legal Tender, I asked the 61 participants in my lawyer survey to indicate their planned retirement age. Most selected 56-65 (65 being the official retirement age in New Zealand, at least for the Expected Retirement Age 55 or younger 56 to 64 65

moment). But how many actually do retire at this age? It seemed an age away for those in their 30s and 40s, although one younger lawyer observed, “It creeps up fast, you know – you need to have a plan in place.” Goal-setting for retirement Have you ever asked yourself, “Will I be ok? Can I live the life I want when I retire?”. Everyone wants the answer to be “yes”. However, in these uncertain times, it is hard to know the answer. The world has changed and the old ways of planning for retirement no longer work. It’s time for a different approach. Let me look at what retirement means to you. Your lifestyle and longevity, the estate you’d like to leave your children and so on. Once we understand your life goals, we can work out the probability that you can achieve them and when you can comfortably retire. The word probability is used because it acknowledges that the future is not certain. All assets – cash, fixed interest, property and shares – may have greater or lower returns than anticipated and it’s important to incorporate that uncertainty into our planning so we don’t get caught out. In our modelling, we target a probability of success which is not a static number but depends on your personal circumstances. For example, the younger you are and the more money you have saved, the less certainty you need that your plan will work out. When I start goal planning with clients, I focus on eight areas to help them understand what is important to them, like a ‘bucket’ list of wishes or ideals. I then ask clients to rank their goals from highest to lowest priority. This weighing up exercise is important as most clients cannot “have it all” and trade-offs are needed. The eight retirement goals 1.

66-69 70 or older I don’t plan to retire

When do you want to be financially independent, i.e. when do you want to start drawing on your investment portfolio to support your lifestyle?

I’m retired now

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How long do you plan to be in retirement? This requires an estimate of your life span from the age you expect to retire to the age you expect to live (it’s just a guess, based on things like health, fitness and genetics). The average life expectancy at birth for New Zealand males is 79.5 years of age and for females, 83.2 years. So, there’s still a way to go before the 100th-birthday parties, but you get the gist. Increased longevity also boosts the numbers of “sandwich generation” parents, supporting both their own parents and their children. The importance of this goal is to realise that we are planning for the long-term. Most clients find this sobering as we tend to over-value the present (‘carpe diem’) and hyper-discount the future.

3. What lifestyle or standard of living would you like to enjoy in retirement? A quality retirement means being able to live a lifestyle close to that before retirement. This is not a static number either. Lifestyle needs tend to reduce as we get older by about 10% per decade. I typically break the retirement stage up in three phases. In the first phase, we are still healthy and fit and may be working (albeit part-time). In the second phase, we may be less active, and in the third phase, it is prudent to allow for higher health related costs. 4.

What legacy do you want to leave to your children, charities etc. and have you considered the benefits of giving while you are still alive?

extra boost over the long-term (but beware it can work against you in the short-term). Some think the safer option is to invest in cash-like investments (e.g. term deposits), but after taking into account inflation and taxes, this is a sure way of going no-where or backwards in today’s low interest rate environment.

What is the current investment amount dedicated to becoming financially independent? This would include your savings to date but also the lifestyle assets you are prepared to sell or downsize to improve the quality of your retirement. More on this further below.

What certainty would you like that your goal works out at least as well as you’ve planned, if not better? There are no certainties in this world, but financial modelling can give expected outcomes with different degrees of likelihood or probability. As you get closer to the end of your life, the more certainty you need that you won’t be running on empty when there is nothing you can do to make up for the loss.

You may be flexible in terms of when you would like to retire or the size of the estate you may wish to leave for your heirs. You may be inflexible in terms of the amount you may be able to save pre-retirement. No one size fits all in terms of the answers to these very individual questions and priorities. Having someone independent help you clarify and prioritise these goals can remove a lot of anxiety and allow you to look forward to this exciting stage in your life.

How much can you save per year Asset-rich but income-poor between now and when you aim to be Let’s return to the investment amount dedicated financially independent? Obviously, the to becoming financially independent, excluding more you can save while working, the earlier you can retire or the better lifestyle lifestyle assets. One of the first things I discuss with clients in my discovery meetings is the you can enjoy in retirement. Relying on separation of lifestyle and investment assets. New Zealand Super and KiwiSaver alone While potentially significant in value, nonmay not give you the lifestyle you are income-generating lifestyle assets cannot accustomed to. be used for retirement-planning purposes. If investment assets are insufficient to support 6. What percentage of growth assets are you in retirement, you can either keep working you willing to include in your portfolio? to keep yourself in the lifestyle to which you Governing factors are your appetite, are accustomed (although this is not a plan to capacity and willingness to take risk last until the age of 90), or start liquidating your and how close you are to retirement. lifestyle assets. Growth assets are the turbo engine of your retirement nest egg, giving it an

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This is often a tough decision. Lifestyle assets are emotionally meaningful, with particular attachment to the treasured family or holiday home. Grandparents love their grandchildren to stay at the house in which their parents grew up. The family home and bach are laden with memories we want to keep alive. But there comes a time when realistic decisions need to be made, especially if lifestyle assets are the bulk of your overall assets and you have to keep working to maintain your properties and support your income. The asset-rich but income-poor adage may sound familiar. We don’t easily cope with change, especially when we get older. The warning signs first appear with upkeep, without the same energy and financial means to keep renovating the family home or dealing with erosion issues at the beach house. And then there is the social aspect. I heard a story of parents living in a rambling family home, for whom an added difficulty of parting with the past was the fact their social circle met in the evenings or at weekends at the family home for a poolside barbecue.

But how much can you safely draw down each year? In my interviews for Legal Tender, lawyers often asked for rules of thumb, with some expressing disappointment the interviews didn’t include a bag of goodies they could pick and choose from. As already stated, there is no onesize-fits-all solution to retirement. Misnomers include “a safe withdrawal rate is four per cent each year” and “I’ve heard experts recommend three per cent drawdowns”.

Lifestyle assets and legacy discussions are often intertwined. As discussed, legacies are becoming less of a priority. But there’s usually no question that lifestyle assets will go to the children. In a way, this justifies the decision not to leave a financial legacy, with parents thinking the family home, bach, boat and art collection are also of substantial value and will go to their heirs.

These rules of thumb are a form of heuristic (or biased behaviour) and many use them as a line in the sand. However, as with many shortcuts, they provide imperfect answers – a simple solution to a far more complicated question, which can prove dangerous in the long run.

What is often overlooked, however, is that the children may not want or need these assets and if you don’t make the decision to sell, they will do it for you when they are in charge. You simply cannot hold on to such assets in perpetuity. A real estate agent told me recently that we are the mere ‘guardians’ of our homes. Prudent withdrawal rates – the danger of rules of thumb With the right approach, patience and planning, you can make the transition to retirement one of the best changes in your life. However, the planning does not stop when you reach retirement. The first step when moving into retirement is providing for your own retirement income, in addition to New Zealand Super and KiwiSaver withdrawals. Although you may have a healthy sum saved, you don’t want to be left short when you get older. It is important to make sure you don’t draw down your retirement fund too fast.

How much retirement or replacement income is enough? The answer lies in the type of lifestyle you want to maintain. Robert Merton, Nobel laureate economist and Distinguished Professor of Finance at the MIT Sloan School of Management, has studied retirement income policy for almost a decade. He says the desire to maximise lump-sum balances at retirement is risky and the focus should be on ensuring retirement income is enough to meet a desired standard of living. “What is a good retirement is measured by the standard of living you want in retirement, and standard of living is not defined by a pot of money but a stream of income,” Merton says. “A good amount for retirement would be to sustain the standard of living you have become used to enjoying in the later part of your working life. That is an income goal; it’s not a wealth goal.”

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Savings Savings

Taxes

Taxes Taxes Spending

Spending

Low Earners <$50k

Middle Earners <$75k

High Earners >$100k

Following that recommendation brings us to the replacement rate – the percentage of pre-retirement income needed to sustain your current lifestyle, based on how much you earned before retiring. The middle column in the following chart shows a theoretical middle-earner income of $75,000 before retirement. Simplistically, the gross income is spent in three buckets: savings for retirement, taxes and spending (such as mortgage repayments, supporting the family and daily necessities). What the chart shows is that we need less income in retirement as we no longer need to pay taxes or save for retirement Instead of taking your gold watch and shutting up shop at 65, you may want to consider planning creatively for other options later in life. You might want to dial back work a little (but not immediately to zero!) or even shifting career gears around 55 or 60, but still working another 15 or 20 years in some capacity.

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If you extend your working life by a decade or more, even with part-time work, your retirement savings have longer to grow. Another decade of compound returns on your savings pool at that point in your life. It can make a big difference. * Laetitia Peterson is a personal wealth adviser. She has worked with companies such as Goldman Sachs and boutique funds management firm Liontamer, which she co-founded with Janine Starks. She is now the CEO and founder of The Private Office, helping successful lawyers achieve the financial goals important to them and their families. For more information about Laetitia and her book, Legal Tender, please visit her website at http://www.theprivateoffice.co.nz/.

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9/03/2017 12:29:13 p.m

Smart Eating for Energy and High Performance on the Job

By Dr Frances Pitsilis MB BS (Mon) Dip Obst, Dip Occup Med, FAARM, ABAARM, FRNZCGP* It has been said “you are what you eat”. It is hard enough to eat healthily while working full time. But then factor in longer hours on the job as well as any extra family responsibilities. How on earth does anyone fit everything in?

preferred to buying food on the way home as when you are tired and hungry you are more likely to make the wrong choices. Additionally, there are plenty of organic shops that deliver healthy organic products as well as their fruit and vegetables. You should prefer organic produce as we know from research that the pesticide residues in the human body drop within a week of starting to eat organic. Pesticides and other toxins interfere with hormones, mineral metabolism and cause illness. Look on the internet for those who deliver or are near you.

This article advises the approach to tackling healthy eating on the job so that you can remain healthy, keep your weight stable and optimize performance on the job. How do you manage work, shop, prepare food, domestic responsibilities and any of life’s surprises? How can you be smart about eating healthily so that you can maintain energy, resilience and performance on the job while not gaining weight and getting sick in the short or long term? Its about working out how to motivate yourself, sorting out what to eat and how to easily prepare healthy food and designing a healthy diet – all while navigating a very busy work/life situation. First there needs to be some consideration of the psychological approach. A person needs to recognise the great benefits of feeling more vital, energetic and enjoying enhanced performance on the job. And how about not getting home exhausted! You need to really palpate the end result so that you can feel motivated to move through the organisation process and so get the desired end result. There should then be plenty of motivation for you to take it step by step to reach your goal. So, keep your eyes on the great end results and that will help you to move through the process. Then it is about deciding how you will approach the process so that it suits your situation. So, how do you get the right foods easily? These days there are plenty of services available to support your goals as long as you have a routine. Supermarkets will deliver. This is

The food you eat should include an abundance of fresh organic fruit and vegetables. Also nuts, seeds, avocado, tofu, lentils and beans generally go for plant based sources of protein like these. Prefer lean chicken and small red meat amounts. Take fish, but avoid the fish at the top of the food chain like tuna, shark, marlin and swordfish as they concentrate toxins. You can have one finger worth of this per month – sorry to tuna lovers. Go for small fish like gurnard that you can have once a week. You may not know that our seas are polluted. Algae and then fish are eating dumped plastic, for example. Avoid bottom feeding fish and seafood. Most know that healthy recipes contain an abundance of plants – several different colours, along with some protein, including the plant based proteins I have mentioned, as well as tofu, lentils and beans. If it is sustained energy you want, ensure you eat adequate protein all through the day as well as protein snacks at morning or afternoon teas. Breakfast suggestions can include eggs and fruit, paleo muesli, leftovers. If you must have cereal or starches, avoid gluten (wheat, rye, barley) and oats as they will cause fatigue and other problems. Have a lunch meal like dinner – adequate protein the size of your palm, along with plenty of vegetables. Avoid starch at lunchtime as it causes the afternoon energy slump. If you don’t wish to lose weight, have some starch with dinner like brown rice or kumara.

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seniors should attend) about diet and lifestyle – it will pay dividends as well as engendering loyalty and a great work culture.

Watch your coffee and alcohol consumption as they both deplete your magnesium stores which give energy and much more. If you like coffee, try having green tea (contains L-theanine) in between, as it enhances your performance without the energy dump coffee gives.

If you have a cafeteria at work, make sure the food has all the best attributes just mentioned and do away with heavy sauces, chips and sandwiches all they will do is put you to sleep!

Non-gluten/oat starches are a good idea because the human body has never evolved to tolerate gluten – this is not a fad, but a scientifically validated fact. Some people additionally cannot tolerate oats because they contain gluten-like substances and the body can react as if it was gluten.

When the cafeteria is closed, have a “trust to pay” box full of fruit, nuts, rice crackers with cheese and energy bliss balls available as healthy snacks. If there is no cafeteria, can someone arrange the snack box? Can there be healthy meals delivered to work by companies like the Real Meal Co for those working late.

When you do cook, cater for a crowd and then freeze some and keep the rest for lunch and for dinner in two nights’ time – get the idea? There is no need to cook every night, and then wonder the next day what to buy for lunch from most likely a limited choice. This way, you are preparing your lunch at dinner time. And fifty percent of the time, your dinner is ready when you get home.

Does your work place have room for quiet prayer/ meditation/ stretching – even a nap? Yes, napping on the job for 30 minutes restores performance and a longer nap enhances performance. Individuals can take responsibility for staying fit and injury free by taking a 5 minute break every hour to stretch at their desk. Take the stairs more often. Jog on the spot. Actually take your lunch break and go outside for a walk and some fresh air – this needs to become work policy. Studies have shown that when workers take their breaks they are more productive and don’t go home tired. Make a commitment to regular exercise with a friend so you are more likely to do it.

All you then need to do is also provide yourself with healthy snacks to add to your lunch box. These can include fruit, nuts, rice crackers with cheese, etc. This is all very well, but what if there has been too much work, too much travel, no time to do anything and the freezer is empty? We all know about supermarket cold meats and salads, and about pre-frozen meals or takeaways. But how healthy are they? You should look at the labels and work this out. Some companies deliver food you can freeze. What if you need or prefer a special diet as many do? There are now companies that deliver higher quality food to the workplace or home that addresses vegan, vegetarian, low carb, paleo, and weight loss needs. One of them is the Real Meal Co in Auckland. Formed by a lawyer and her partner for cancer patients, they give many healthy choices and also go organic wherever possible. With a community conscience at their foundation, they give a percentage of their profits to the Cancer Society. Look for similar providers in your area. You can have a backup supply of meals that can be delivered to your home or work to help get you through those lean times.

If you focus on the prize which is feeling great, working well, keeping your weight under control and staying fit without too much effort, then you will reap the rewards once a little bit of thought is put into things and a small amount of effort. * Dr Frances Pitsilis is a highly experienced doctor who consults over a broad range of health areas including second medical opinions for chronic illness. She was featured in the 10 part TV series “ Is Modern Medicine Killing You?” She speaks and writes widely about motivation, achievement, resilience and stress in life & work. For more information, see www.drfrances.co.nz

If you are an employer and want to support your staff as well as enhancing everyone’s energy and performance, what can you do? A good investment is educating all your staff (yes,

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The Dangers of Prolonged Sitting in the Workplace By Adam Billing*

as high and as far back as you comfortably can. Complete ten swings and then switch legs. On the second set, swing side to side. Swing your right leg out to the side as high as possible and then in front of you towards your left as far as you can go.

An important consideration for professionals seeking to improve their health in the workplace is to evaluate their time spent sitting. From the driver’s seat to the office chair and then the couch at home, the entire day can virtually be spent in a chair.

If you have done yoga, you will be familiar with the “pigeon pose”. This stretch targets the glutes. It can put pressure on the knee joint, so use a table to lessen the intensity. Start by placing your leg on a tabletop with the knee bent at 90 degrees. Place one hand on the table and one hand on your foot for support. Lean forward and hold for one minute. Then lean left to the ten o’clock position and hold for another minute. Lean right to the two o’clock position and hold for a further minute. Repeat on the other leg.

“Sitting is the new smoking” has become a common refrain circulating throughout current health media. Researchers have found and continue to find evidence that prolonged sitting increases the risk of developing several serious illnesses such as cancer, heart disease and type 2 diabetes. Sitting, like smoking, is clearly bad for our health and the only way to minimise the risk is to limit the amount of time we spend seated every day. Get a head start on a long day in your office chair by walking, running or riding a bike to work. Incorporate movement into your work routine by taking the stairs instead of the elevator, use a printer that is the farthest away in the office from your desk, stand to answer phone calls or stand on one leg. For the unabashed (or those with their own private office) try five to ten push ups or air squats every hour on the hour. Consider a short high intensity workout during your lunchbreak. Various CBD boot camps or a personal trainer can provide fun and motivating options for high intensity interval training (HIIT). 30 minutes is all that is required. Purchase a foam roller for use in the office or home and aim to roll out your muscles for ten minutes per day. Particularly focus on the thoracic spine (upper back), glutes, hamstrings and lower back. These areas become especially tight with prolonged sitting. As a result, the muscles around the hips and glutes become shorter. Excessively tight muscles increase the risk of injury when exercising. For example, tight hips cause the ilio-tibial band across the quadricep to become tight, which can lead to knee pain. Taking care of your hips can improve your posture and alleviate back and neck pain. To loosen the hips, perform two sets of ten leg swings on each leg. Begin with forward leg swings, holding onto something for balance and swinging your right leg backwards and forwards

It’s important to pay attention to your feet, which might be crammed into tight dress shoes and high heels when wearing corporate attire. There are several lower limb muscles that insert into the underside of the foot and if this insertion point becomes inflamed it can lead to long term problems with the ankle, calf and knee. A mobility exercise to try is to stand on a golf ball or tennis ball to roll out the muscles in your feet. Now, sit on the ground and place the ball between the floor and your calf muscle to target this area. Roll forwards, backwards, sideways, anyway you like until you find the tight spots. Spend at least two minutes on each leg. Heightened awareness of the adverse effects of continuous sitting has entered the mainstream. With increasing frequency, employers are beginning to provide standing desks as an alternative to conventional workspaces. Even if your employer does not provide this option, consider the relatively inexpensive investment in your own health. Standing will keep your muscles activated, however, bear in mind that prolonged standing (as with sitting) is another form of inactivity with its own associated consequences. Incorporating some frequent movement to break up the time spent seated at a desk will make a notable improvement to your physical wellbeing at work. Working on your mobility by stretching and foam rolling to achieve a healthy range of motion will improve posture, joint comfort and help prevent the risk of injury. * Adam Billing is a strength and conditioning coach for Auckland Rugby. As a former project manager launching websites for multinational corporations, he has spent his fair share of hours sitting at a desk.

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Art as Investment

By Jacqui Wilkinson, Fine Art Tours NZ* Over the past 10 years, art as an investment has been growing significantly in popularity around the world.

How does this compare to what is happening in New Zealand? In a similar way that much New Zealand music was undervalued by Kiwis for many years, our visual artists have also been largely ignored and underrated.

So much so, there are now dedicated art investment funds in the US and Europe, and Deloitte have begun publishing an annual Art & Finance report for their clients.

This has resulted in a relatively small number of serious art collectors, with many of the significant private collections around the country featuring a mix of local and international artists.

The 2016 report from Deloitte showed that 36% of the 400 global private bankers and wealth advisers consulted said they expected to see an increasing percentage of wealth being allocated to ‘collectibles’, which includes art.

International artists have been considered an important part of art collecting in this country as, traditionally, investing in local art alone would not have resulted in worthwhile financial gain. But this is changing.

This is a big increase from when the report was first published 5 years ago. Art from some regions is also increasing in value quite dramatically, particularly contemporary work from South East Asia and Africa. Sotheby’s and Christie’s enjoyed 28% growth in auction sales over the past year for work by South East Asian artists and a whopping 53% increase for work by African artists.

Colin McCahon was the first contemporary New Zealand painter to receive widespread international attention for his dramatic, large scale paintings. They showed a country emerging from Colonialism with her own distinct voice.

This is driving a big change in attitudes amongst wealth managers globally, who, for the first time, accept that art and collectibles should form part of a wealth strategy.

When he was alive, McCahon barely managed to make enough money to eat and buy materials, and this was true for most of his contemporaries. Now his work is worth millions and found in collections around the globe.

Part of this change, of course, is also due to client demand. More and more wealthy individuals, particularly those from the US, are recognising the positive social and financial benefits associated with collecting art.

McCahon and a Maori artist, Ralph Hotere, were the first two New Zealand artists to be selected by Phaidon for their infamous publication, “The Art Book”, which includes what historians consider to be the world’s top artists of all time.

72% of US and European based art collectors now say they buy art primarily for passion, but ‘with a view for investment’.

It’s highly likely more New Zealanders will be added to this list, as more of our artists capture

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global attention. People like Fiona Pardington and Simon Denny, for instance.

be aware of the risks and pitfalls, and develop a crystal clear strategy.

In 2016, Pardington, alongside Peter Jackson, received a prestigious creative award from the French government (she was named a Knight in the Order of Arts and Letters) and Denny is now our most awarded and sought after living artist (Te Papa purchased 4 of his works in 2015 for $750,000, arguably the highest sum ever paid to a living New Zealand artist at one time).

Forming an art investment group is one approach, but, for some, developing a personal strategy will have more appeal.

Ilona Rodgers, host for Fine Art Tours NZ (a tour company specialising in showcasing the arts and culture of New Zealand), meets many international visitors who are travelling to New Zealand seeking an introduction to the local arts scene. “Our bi-culturalism gives us a distinct, unique creative voice from the Oceanic Pacific region. And that’s what our clients respond to”, Rodgers says. “We have world class sculptors, photographers, painters and installation artists. Many of our clients are blown away by the quality and variety of the work available in this country. It demonstrates the huge unrealised potential there is to begin investing solidly in New Zealand art.” Choosing the right strategy Claire Dower, Wealth Adviser from Craig’s Investment Partners, has been part of an art group for the past 6 years. She says her interest in joining the group was more for her own personal interest and education, rather than to make money. “I joined the group more for education than for investment, but we are expecting a return”, Dower says. “Originally, we thought we might focus on emerging NZ artists, but that’s a pretty risky strategy. So now we purchase both established and emerging local artists.” The collection is now made up of over 30 works, with new pieces being added every few months as funds become sufficient to make a new purchase. While it is true there are opportunities to make money through investing in art, it’s important to

One of New Zealand’s most successful dealer galleries, Ferner Galleries, recommends defining a strategy incorporating three collection guidelines - time period (such as historical art or contemporary art), area of interest (for example, women artists, sculpture, watercolours) and value (including ‘price caps’). Ferner Galleries also believes that “in many ways, investing in art is similar to investing in property or equities – the security of your capital is your first priority, the quality of the investment determines the eventual return and prices are determined by supply and demand”. As with all investments, there are risks, and in their 2016 Art and Finance report, Deloitte highlight some of the major challenges associated with investing in art. The volatility of the art trading market is arguably the biggest threat, closely followed by the high costs of trading art (purchase and resell fees average 25% and can be as high as 30%). There are also high fees for insuring an art collection and ensuring its safety and preservation over the long term. This is a critical point when considering investing in contemporary works of art that are often created from temporal materials that break down much faster than more traditional art forms. But, there is no doubt that art collecting is a highly satisfying investment option, particularly when it is carefully considered as part of an overall investment strategy. There certainly has never been a better time in the history of New Zealand art to start building and developing a collection. * Claire Dower from Craig’s Investment Partners can be reached on 09-919-7422 or email Claire.Dower@ craigsip.com. Fine Art Tours NZ offer ‘curated cultural experiences, for creatively minded travellers’ – for more information about our offering visit www.finearttoursnz.co.nz or call Jacqui Wilkinson on 021-679-847

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Petrol Heads’ Corner David O’Neill*

Jaguar F-Pace Report New Year has come and gone, holidays are finished, so there was nothing left to do but find another car to test drive. I phoned the local Jaguar dealer, Duncan and Ebbett, to see what they had available.

Specifications Engine 3 litre V6 super-charged petrol Power output 280kw (0-100km/h – 5.5 seconds (as claimed)) Economy Unknown – but thirsty

The trip from Hamilton to Pauanui and back and then Hamilton to Cambridge and back consumed all the petrol in the tank. I’m not The dealer principal had mentioned sometime sure how big the tank was but I suspect this last year that he wanted me to drive the new is a reasonably thirsty motor. However it Jaguar F-Pace. I reminded him of this when I would be difficult to make a heavy car with phoned and he thought that it was a good idea. So, I picked it up, we chucked everything into it - a supercharged engine economical. The alternative is a 3 litre twin turbo diesel. That including the cats - and took it to the beach for offers 221kw and 700nm torque (that means it the weekend. can pull the side off a house). The car was Royal Blue. It also had white leather I suspect the diesel would be the engine of upholstery. Very nice, but to be perfectly blunt, choice. not very practical. The looks were finished off with black spoke wheels. It is beautifully Driveability finished. Where there is no leather, there is The car, as you expect, gallops along a straight alcantara or very high quality plastic. easily and conveys one in great comfort. It’s The instrument panel is digital. There are no mechanical moving parts and the dash can be changed to suit your mood with different colours and differing amounts of information conveyed.

very quiet and not a lot of road noise gets through to the cabin.

It went round the corners easily. Occasionally it lurched a bit but I suppose that’s to be expected from a heavy SUV. It certainly went through its This was the all-singing, all-dancing version. The paces going up and over the Kopu-Hikuai hill and it was essentially rather like driving a small 3 litre petrol, super-charged beastie with all the car with a large motor and lots of storage space. fruit. All in all I thought it was reasonably nimble.

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Looks The looks won’t be everybody’s cup of tea but as far as SUV’s go, it is, in my opinion, one of the better looking SUV’s on the market. It has that sharpness of line that seems to be flavour of the month but also not quite as angular as other competitors in the marketplace. Generally I thought that the looks were striking and distinctive. Storage/General The boot was narrow but reasonably long. However there is plenty of room in the boot (for want of a better word) and I think you would probably get the golf clubs in there without too much hassle. As far as all the goodies go, it had everything you could want. I confess that I didn’t actually get to grips with everything but that’s to be expected when you only get a car for a weekend. Initially when you first see it, the car looks small but once you have driven it and then parked beside other vehicles, it’s a lot bigger than it appears. Generally speaking I was looking forward to a second drive in a Jag. When I had the XE last year, I was disappointed because it wasn’t the snarling monster that I expected but rather a bit of a tabby cat when it came to power and acceleration. This car is at the other end of the spectrum. It didn’t disappoint despite the fact that it was a reasonably heavy SUV. It had plenty of get up and go. 5.5 seconds for 0-100kmh is a very respectable sprint time for any car let alone something that can tow the boat with ease. It’s quick but, as I said before, thirsty. The diesel wouldn’t be as fast but then you wouldn’t be calling into the petrol station every 5 minutes either.

to be a real winner for Porsche, becoming one of their biggest selling vehicles. Everybody else has followed their lead and there are now sporting type SUV’s from pretty much all of the European luxury car makers. Even Maserati has brought one out. The F Pace will hold its own in the field of luxury SUV’s, of that I have no doubt. The price is a bit daunting. This one was $165,000. That is with everything that you could possibly want on a car. However, this was the “First Edition” which is a limited model. Jaguar Land Rover factory only made 1700 “First Edition” models worldwide. Apparently Jaguar NZ got 5 and this was the last one left. So, you could buy one a lot cheaper if you wanted to wait for the other versions to come out. The 2 litre diesel F-Pace starts at $95,000 which is a long way short of the $165,000 top end price. Audi SQ7 I was offered the chance to drive the SQ7 recently. This is the 3 litre diesel Q7’s big brother. Another diesel you say – 4 litre... (yawn). But then somebody mumbled “triple turbos”. A small frisson of excitement ran through me and then I saw it. Big, black and serious. Audi has always retained the “S” and “RS” badges for the very few vehicles that can make the people sit up and gawp. This time they haven’t missed the mark. From the outside there isn’t much difference apart from the badging, lowered ride height and the four exhaust pipes out the back. It looks impressive in black. Inside it ticked all the boxes. The quilted leather seating was an attractive feature and it had an incredibly small steering wheel which was really useful and easy to steer the car with. Gone are the days when the size of the steering wheel grew with the size of the vehicle you drove –remember the old trucks and buses with steering wheels the size of a small table? The current Q7 is a 3 litre diesel. As I have said in previous columns, it has gone on a weight reduction process and a power increase. It’s quick, roomy, very easy to drive and a real stepup from the earlier Q7.

All of the more luxurious marques are entering the SUV market. Porsche was criticised when it brought out the Cayenne and yet it has proved

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This baby (if you could call it that) is another step up again. The first thing you notice when you start it up is the V8 rumble. I know - it’s a boy thing, but that noise does it for me. It sounds like the local bogans’ hottest Holden V8

space is huge and we managed to get in two sets of golf clubs and trundlers across the back easily and there was still room if you needed it. Torque is 900nm and it produces 320kw of power. To put that in “ordinary speak” – you could tow a building and really quickly!

rumbling away in the background and when you put your foot down, it doesn’t disappoint. The car is powered by a V8 4 litre diesel with 3 (yes you read it right) turbos. It has twin turbos and an electric turbo attached, so there is absolutely no turbo lag. 0-100km/h is claimed as 4.9 seconds. I believe them. When you hit the loud pedal, it goes bananas and goes way past the speed limit in the flash of an instant. It is 8 speed and the version I was driving had all the goodies including a networked suspension control which meant the car stayed flat even around corners. It had “all wheel” steering (as well as the usual all-wheel drive) which meant that in tight circumstances, it turned on a dime. It is seriously worthwhile as an extra. Toss in the seating for 7, boot the size of a bus, privacy glass, fabulous stereo and you’ve got everything you need to cart the family, the dog, the cat, the golf clubs and pretty much anything else you wanted backwards and forwards to the beach in style and at high speed.

It’s a big car and takes a lot of stopping but the brakes were impressive. We didn’t have any “moments” but in the wrong hands this car could be lethal. There’s a lot to stop, so you have to be careful.

Mind you at $200,000 for the version I had, there are only going to be a few that will buy it. It has a tonne of room. Even with the third row seats up, there was still enough room to put some bags in the back without too many problems. With the seats down, the storage

Seriously, the car is probably a full-blown microwave when all the sensors/radars are going off. I hate to think what happens to people standing close by when you start it up and engage the backing cameras and radars. The car came with the usual high spec sound system (Bose), has wireless charging for those phones which are compatible, Bluetooth music so you don’t have to plug your phone in and the digital instrument cluster with a whole bucketload of optional mood-like settings. Additionally the car came with the aforementioned performance package, suspension, privacy glass (black glass all the way round). The list of extras is reasonably short but fairly expensive. You can have: • • • • •

I did my usual trip to the beach and back and the reading on the on-board computer showed it averaged 9.1 litres/100kms. I didn’t have it in “nana” drive either. I pretty much spent most of the time in dynamic mode (read “quick”).

It looked menacing, it was menacing and I reckon I didn’t turn out to be a menace on the roads. All the cars in front of me pulled over and let me past – wasn’t that nice of them?

As with everything else it comes with cameras on all corners, back and front and even a birdseye view from above (I don’t know how they do that, but it’s really clever); a computer sensor thingy which keeps you in your lane and stops you from crashing into the car in front, makes sure you don’t slow down so that the car behind doesn’t crash into you, tells you when people or cars and other things are close by when you are driving and generally makes you redundant.

Ceramic brakes - $18,000 Sunroof - $5000 A couple of computer tablets, made by Audi (I assume) - $5600 B&O Sound System - $14,000 Luxury package (I am not sure why you would even get this – it’s luxurious enough) - $10,000

Those of you who are regular readers may have read my column about the Bentley Bentayga. That was the first edition version which cost its owner $550,000. I am hopeful (pretty sure) said owner of the Bentley won’t read this particular column but I have to say that I would quite happily bank the extra $350,000 and get the SQ7. It might not be as quick nor as rare, but it’s not far away in speed and acceleration and it might not be as luxurious, but again, not too shabby either. The Bentley is certainly a rare beast and like most Bentleys, is only able to be afforded by the uber rich. The SQ7 is still pretty expensive in anybody’s language but when it comes to bang for the buck, the SQ7 ticks all the boxes. * Hamilton based barrister, David O’Neill, is our resident motoring columnist and the NZBA Treasurer.

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Events

NZBA Auckland Christmas Function, Bankside Chambers, 13 December 2016

Maria Dew, Kate Wiseman and Anjori Mitra

Dr John Turner, Brett Cunningham and Sir Ted Thomas

Rod Joyce QC, Philip Skelton QC, Sandra Grant and Kelly Quinn

Catherine Fry and Steve Keall

Paul David QC and David Marriott

Clive Elliott QC, Mark Kelly and Chris Patterson

Steve Bonnar QC and Hon Robert Fisher QC

Peter Davey and Sonja Clapham

Lady Deborah Chambers QC and Hon John Priestley CNZM QC

NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 2017

15-16 September, Marlborough Convention Centre, Blenheim This yearâ&#x20AC;&#x2122;s Conference theme is Comparative Advocacy, aimed at promoting discussion about differences in advocacy techniques and court procedure across several jurisdictions. We will be joined by leading overseas and local advocates and judges. Delegates will be able to enjoy listening to thought provoking topics as well as attend optional activities and two dinners, at the fabulous Wither Hills Vineyard and amongst the planes at the Omaka Aviation Heritage Centre. Save the date! More information on speakers and conference registration will be available soon.

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2016 - 2017 COUNCIL CONTACT DETAILS 2013-2014 COUNCIL CONTACT DETAILS CLIVE ELLIOTT QC – President Ph: +64 9 307 1769 elliott@shortlandchambers.co.nz JENNY COOPER Ph: +64 9 309 1769 jcooper@shortlandchambers.co.nz PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 peter@davey.co.nz JOHN DIXON Ph: +64 9 306 2775 john.dixon@shortlandchambers.co.nz JONATHAN EATON QC – Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz LISA HANSEN – Vice President Ph: +64 4 914 1052 l.hansen@barristerscomm.com DALE LESTER Ph: +64 3 366 1465 dale@canterburychambers.co.nz LARA MANNIS – Junior Member Representative Ph: +64 9 600 5509 lara@richmondchambers.co.nz JANE MEARES Ph: +64 4 974 5952 jane.meares@cliftonchambers.co.nz TIHO MIJATOV – Junior Member Representative Ph: +64 4 472 9025 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL – Treasurer/Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com PAUL RADICH QC Ph: +64 4 974 5951 paul.radich@cliftonchambers.co.nz GRETTA SCHUMACHER – Junior Member Representative Ph: +64 9 309 1769 gschumacher@shortlandchambers.co.nz ROB STEVENS – Associate Member Representative Ph +64 9 302 1963 rob.stevens@pds.govt.nz DEAN TOBIN Ph: +64 3 477 8781 dean.tobin@princeschambers.net