At the Bar April 2021

At The Bar April 2021

Cardinal Pell: a Case Gone Wrong Reading the Signs on a Journey into Maori Law Jonathan Temm QC - Obituary www.nzbar.org.nz

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p13 YOUR ASSOCIATION 4 From the President – Paul Radich QC 51 New Members of the NZBA

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LEGAL MATTERS 8 Cardinal Pell’s Case – A Trial and an Appeal Gone Wrong 13 Reading the Signs on a Journey into Maori Law 18 Kate Sheppard Chambers – a Different Approach to

Barristers’ Chambers 21 Can There Be “Primary Mana Whenua” in Respect

of Resource Consent Participation Under the

Auckland Unitary Plan?

23 Electronic Casebooks and Access to Justice: Are

We All on the Same Page?

28 Jonathan Temm QC – Obituary 30 Child Support and Penalties – What the 2021

Changes Mean 32 Trusts and Alternative Dispute Resolution – The

New Regime 34 Personal Injury Litigation – a Long-Forgotten Area

of Practice PRACTICE AND LIFESTYLE 27 Automation: Saving Time and Money for the Legal Sector?

38 NZBA/MAS Partnership – Well in Every Way and

Building Our Brain’s Ability to Cope 43 Robing Room Bullying 45 Saving for Retirement and How to Handle Luck 49 Petrol Heads’ Corner – The Hahei Leadfoot Festival

p49 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 (Editor-in-Chief ) Jacqui Thompson (Sub-Editor) Lisa Mills (Compilation and advertising) Barbara Relph (Copy editor)

DESIGN AND LAYOUT BY Kirsten McLeod Hot Lobster Design Tel: +64 9 834 2224 Email: kirsten@hotlobster.co.nz

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

From the President Paul Radich QC

It has been a time of real change, certainly in health, housing and travel. Our 20 DHBs are to be replaced by one national organisation, Health NZ, together with a new Māori Health Authority, the Government has announced a $3.8 billion housing acceleration fund to pay for infrastructure and a $1.2 billion fund for Kāinga Ora land purchases and, New Zealanders and Australians can once more enjoy quarantine-free travel between our countries on a flyer-beware basis.

In other areas, notably climate change and international human rights, significant change is needed. More on that a little later. In the meantime, here at the New Zealand Bar Association, we have undertaken a number of changes ourselves.

My monthly member updates have taken over detailing our numerous activities, so in this issue of At the Bar I am going to focus for the most part on our Council and one of our Committees in particular.

Our Council and Committees A notable feature of our Council is the amount of work it undertakes. We meet every month – two meetings are kanohi ki te kanohi (in person), and the balance are held by Zoom. The meetings rotate between full day meetings, which deal with the Association’s accounts, business, governance and, on alternative months, policies, and half day meetings which proceed on a non-agenda/blue sky basis to focus on deliverables and initiatives.

The Council’s meeting schedule and the level of work for its members places heavy, but professionally satisfying, demands on members. We owe them a real vote of thanks. A list of our Council members can be found on our website.

Recently, the Council met in Wellington at the stunning new offices of our sponsor partner, MAS, with a sparkling Wellington Harbour as our backdrop. It was a pleasure to welcome MAS Chief Executive, Martin Stokes to the beginning of our meeting and to learn a little more about the way in which the 100 year old company was born in New Zealand, has grown with the country and the way in which it delivers a socially responsible service with an emphasis on professional groups. Martin’s pride in MAS’s approach and its journey is well justified.

The primary purpose of the meeting was to confirm the creation and composition of our new committees and to develop achievable goals, or deliverables, for each of them. To ensure that our work is focused and that deliverables for our members are readily achieved, we have reduced the number of committees from 14 to six, including several sub-committees.

The new committees are: • Advocacy – to promote access to justice and the rule of law and to submit on legislative developments • Te Ao Māori – to educate and inform the organisation and its members • Diversity and Inclusion – to embed gender equity and diversity initiatives and outcomes • Education – to deliver advocacy training, conferences and webinars • Membership and Wellbeing – to provide collegiality, support and benefits • Specialist Areas – to provide an umbrella for our Criminal Committee, Commercial Bar Committee and for the development of other specialist areas If you would like to know a little more about the committees and what they do, please look at our committees page on our website. I extend my sincere thanks to all of our members who have put up their hands to serve on these committees. They have all committed themselves to hard work, for the benefit of us all. I extend my thanks, also, to our outgoing committee members for their considerable contributions.

Te Ao Māori Committee I want to focus on the role, and the work, of this committee in this column. I will discuss the work of our other committees in later offerings.

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L-R Back row: Stephen Layburn, Richard McGuire, Felix Geiringer Middle row: Setareh Stienstra, Sam Jeffs, Phillip Cornegé, Taryn Gudmanz, Paul Radich QC, Iswari Jayanandan Front row: Quentin Duff, Anne Toohey, Esther Watts, Maggie Winterstein and James Rapley QC Absent: Kate Davenport QC, Simon Foote QC, David O’Neill and Tiho Mijatov.

The role of the committee is to seek knowledge and to find opportunities to educate the Bar Association and its members on ways in which we can live up to our Treaty obligations and, more holistically, on ways in which we can come to view our work in the law, and the law itself, through a Treaty lens and from a te ao Māori perspective. The Committee will support members to achieve these objectives by arranging guidance and training from those bodies who have the right qualifications and credentials to deliver it.

The Committee does not presume to be a voice of Māori. And neither is it about advocacy. There are other organisations (such as Te Hunga Rōia Māori o Aotearoa) that have this kaupapa through their constituency and their knowledge. We acknowledge them and their work.

The work of the Te Ao Māori Committee is crucial for us. Many members, from different practice areas and backgrounds have told us that they are discovering that they need to know a good deal more about te ao Māori and about tikanga – in the law and its institutions and in public life in general. We have had several requests to facilitate this learning. And the best way for us to do that is to consult with experts and to find ways of conveying the knowledge they have shared with us.

The judiciary, through the Institute of Judicial Studies – Te Kura – have been focussing purposefully on this area so that judges, instinctively, can address legal issues through a Treaty and a te ao Māori lens.

They are keen for counsel to catch up so that they can frame submissions, when applicable, on that basis.

We have to support our members through this “catchup”.

Learning about tikanga is a step along this pathway. Learning te reo Māori is another. In 2020, Justice Joe Williams said: “When the reo walks in the room, te ao Māori walks in the room and that changes the law. I know its subtle, I know it’s not revolutionary but once you get a different flavour in the water, stuff changes and I think we are in the process of hobbling towards that in an ad hoc way … yet we are walking there organically.”1 As an employer, we are trying to talk the talk ourselves. I am delighted to say that our Executive Director, Jacqui Thompson, has taken up an opportunity we offered to attend te reo Māori lessons at AUT, a course that Kate Davenport QC is taking as well. Both want to have a basic grounding in what is one of our country’s official languages. We are certainly not suggesting that all must follow suit, but I take my hat off to them for the enthusiasm they are displaying for learning something new.

In case anyone is in doubt about how widespread the need for a greater understanding of te ao Māori is, a recent interview on Radio NZ/Te Reo Irirangi o Aotearoa2, noted that Māori academics are doing double shifts, by working both as researchers and as unpaid cultural guides for their non-Māori colleagues.

This was a point discussed at our last Council meeting. We recognise the difficulty and Te Ao Māori Committee is factoring the issue into their plans.

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Investiture of Justice Sir Joe Williams About two thirds of the way up the Coromandel Peninsula, not too far from the town of Coromandel to the north, sits the Ngati Pūkenga meeting house, by the name of Te Kouorehua, in the town of Manaia.

Te Kouorehua was the paramount Chief of the Ngati Pūkenga and Te Tawera during much of the 19th century. He was known as a great warrior in battle and for his superior knowledge of battle strategies.

Gathered there, on 10 April 2021, were a number of contemporary chiefs known, also, for their mastery of strategy – the Governor-General, Dame Patsy Reddy, the Minister of Foreign Affairs, Hon Nanaia Mahuta, the Chief Justice, Heads of Bench, Judges from all of our courts, the Deputy Commissioner of Police and kaumatua from across the nation. They included a familiar face, Simon Dallow, a member of Ngati Pūkenga himself, who played an active role in the ceremony.

The ceremony was both uplifting and thought provoking. It was overlaid with very good humour. Dame Patsy referred to the honour as recognising “your mana and your humanity” and Sir Joe referred to his work for iwi – for the Hauraki claims, for the iwi of te Tai Tokerau, for Tauranga Moana, for Ngāti Kahungunu and for various Matātua people, as “the joy of my life”. Referring to the wananga that followed the ceremony, he said, “Here we are, for a day and a half, to dream visions of an iwi future”.

And so it was with the wananga that followed. Speakers including Dame Patsy Reddy, Hon Nanaia Mahuta, Hon Dame Tariana Tūria, Professor Rawinia Higgins and several other prominent members of our society. They spoke about partnerships between iwi and the Crown, thriving together, growing healthy and strong whānau, caring for vulnerable members, growing up as part of a Māori speaking generation, seeing iwi enterprise as a path to iwi wellbeing, and reimagining our iwi as important institutions in the lives of their people.

A special day. A time to imagine what is possible.

The need for change

Value of Te Reo Māori for All ‘Is What Will Save It’ - Justice Joe Williams (5 November 2020) https://www.rnz.co.nz/news/te-manu-korihi/429933/valueof-te-reo-maori-for-all-is-what-will-save-it-justice-joe-williams Māori Academics Doing Unpaid Work as Cultural Guides for Colleagues, Study Finds (16 April 2021) https://www.rnz.co.nz/news/te-manukorihi/440585/maori-academics-doing-unpaid-work-as-cultural-guides-for-colleagues-study-finds

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This chart says it all really.3 It shows that among industrialised countries expected by international climate change agreements to do more than the global average to reduce emissions, New Zealand has instead experienced the second highest increase in emissions since 1990. The figures and building political pressure suggest that there is a mandate for the Government to act.

Lawyers for Climate Action NZ have made a substantive submission to the Climate Change Commission on its draft advice and have published a recent webinar that is well worth a watch over your lunch time sandwich sometime soon.4 We can be thankful that the steps that we need to take as lawyers to adapt to changes in our society are of a radically different nature to those in other jurisdictions where lawyers are fighting, both procedurally and physically, to uphold fundamental rights. For example, in Myanmar, which has recently seen some of its deadliest days since February’s coup, the Independent Lawyers Association of Myanmar, established with support from the International Bar Association’s Human Rights Institute, has seen scores of lawyers representing without charge the hundreds of people who have been unlawfully detained; representation which brings direct risks to the lawyers themselves.

An example of risks of that type comes through Lyudmila Kazak, a human rights lawyer in Belarus who has been disbarred following a decision of the Minsk City Court in the course of executing her duties as a lawyer in representing a leader of the opposition. The Hon Michael Kirby, former Judge of the High Court of Australia and Chair of the International Bar Association’s Human Rights Institute, referred to the violation of international law as “[a] stark example of a concerning pattern of disbarment of lawyers in Belarus who represent opposite candidates or express views sympathetic to the opposition”.

And so, while the challenges we face in adjusting our paradigms from time to time are not to be underestimated, we can reflect with a good dose of anguish on the work of counsel in those places in which the rule of law has all but ceased to exist.

NZBA/Marsh Indemnity Insurance plan For some time now we have been reviewing our NZBA/Marsh Indemnity Insurance plan. Together with Marsh and a workgroup, we are developing a customised policy with language that suits the needs of barristers. As part of this review, we will be asking members for their views as to the terms, the renewal process and any claims experience that they may have. We will be sending a survey out shortly and would appreciate it if you could complete it.

I want to acknowledge the work of the review team, which is convened by Michael Webb, and two co-opted team members, Michael Robertson, and Helen Twomey from Robertsons. Michael and Helen specialise in professional indemnity insurance law and have kindly agreed to assist in this review.

Queen’s Counsel As I write, we are beginning our QC consultation process. We have a panel of 14 QCs who will examine the applications that have been made in the context of the appointment criteria. A great deal of care and attention is paid to each application; to the cases, sources and referees mentioned. Members of the panel meet on a number of occasions, to focus on particular practice areas and then to consider the pool of applications as a whole, meeting also with the Law Society’s assessors along the way. The process enables the Law Society and the Bar Association to each make recommendations to the AttorneyGeneral (through the Solicitor-General) under the process prescribed by the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 2012.

As emphasised in the Law Points on 25 March, applicants and those supporting them are asked not to make direct approaches to Presidents or assessors of representative organisations involved in the process and, likewise, not to make contact with the Solicitor-General, the Attorney-General or members of the bench directly in relation to an application. The applications themselves, and the references, speak volumes and are a reflection of the quality and the strength of our Bar. Hei konā mai 3 4

https://di.unfccc.int/global_map www.lawyersforclimateaction.nz/projects-resources

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Cardinal Pell’s Case – A Trial and an Appeal Gone Wrong

By Warren Pyke*

“An ounce of intrinsic merit or demerit in the evidence, that is to say the value of the comparison of evidence with known facts, is worth pounds of demeanour” Lord Atkin in Société d’avances Commerciales (Société Anomyne Egyptienne) v Merchants’ Marine Insurance Co. (‘ The Palitana’) (1924) 20 Lloyds L Rep 140, 152 The setting and solemn procession One cannot understand the High Court’s judgment unless the setting in which the offending was alleged to have occurred is visualised. The precinct buildings and ceremonies are described in detail in the judgments (the Court of Appeal’s judgment includes diagrams and extracts from the evidence).

Cardinal Pell was installed as Archbishop of Melbourne on 16 August 1996. In 2018, Cardinal Pell was found guilty by a County Court jury in the State of Victoria of one charge of sexual penetration of a child under 16 years and four charges of committing an act of indecency with or in the presence of a child under the age of 16 years. There had been an earlier trial, at which the jury were hung. While serving a term of imprisonment, he unsuccessfully appealed to the Court of Appeal in Victoria; one of the grounds was that the verdicts were unreasonable (Pell v The Queen [2019] VSCA 186, Weinberg JA dissenting). He was denied bail pending appeal.

The following were the circumstances in which the alleged offending occurred. After the dismissal at the end of each of the two solemn Masses, the choir, attendants and clergy formally processed down the Cathedral’s centre aisle. The choir processed in strict order. It was Cardinal Pell’s practice to leave this procession and remain on the steps of the Cathedral accompanied by his master of ceremonies (" the Master "), enabling him to greet congregants as they were leaving.

While he did so, choristers returned to the choir room in the adjacent Knox Centre; altar servers

On 7 April 2020, the High Court of Australia unanimously quashed all convictions on the ground that the verdicts were unreasonable (Pell v The Queen [2020] HCA 12). Cardinal Pell has since been restored to Holy Orders.

This case note examines why the High Court unanimously held that the jury and the State appeal court got it wrong. I also argue that grants of bail pending appeal ought to be more favourably considered where plausible and substantial grounds of appeal are raised and the appellant is of previous good character, or is vulnerable.

The circumstances of the alleged offences The offences were allegedly committed in St Patrick’s Cathedral, East Melbourne (“the Cathedral”), following the celebration of Sunday solemn Mass on two occasions, within months of Cardinal Pell’s installation as Archbishop of Melbourne. The victims of the alleged offending were two Cathedral choirboys, “A” and “B”. By the time A made his complaint, B had died in accidental circumstances.

The prosecution relied entirely upon the testimony of complainant A to establish guilt, and nothing more.

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and priests entered the Cathedral through the nearby sacristy corridor.

choir back along the sacristy corridor towards the Knox Centre, but before reaching the door to the archbishop’s sacristy, the appellant, while dressed “in his full regalia”, appeared and pushed A against the wall, whereupon he briefly and painfully squeezed his testicles and penis. A did not say anything to anyone about this, nor did he tell B about it.

When presiding at solemn Mass, Cardinal Pell wore his choir robes, being a purple cassock worn under a white garment called a rotchet that extended down to the knees, and over which he wore a short purple cape; he also wore an alb, which is a white, ankle-length tunic, tied at the waist with a cincture (a rope knotted several times to keep it in place), a stole and a cross around his neck, with a green and gold cord worn down the back. In procession, he carried a crosier (a stylized staff that is a symbol of the governing office of a bishop).

The judgments on appeal record that the prosecutor relied heavily upon an emotional exchange between the complainant and defence counsel during cross examination of A, in the context of questioning about why he had not told anyone about his allegations at the time.

The Allegations A and B were aged 13 years at the time of the alleged offences. A was uncertain of the date of the two alleged incidents, which were separated by at least one month. He believed that both had occurred following a Sunday solemn Mass celebrated in the second half of 1996.

Cardinal Pell’s denials In October 2016, in a video-recorded interview with the police, which was played in evidence, Cardinal Pell emphatically denied the allegations, stating that “[t]he most rudimentary interview of staff and those who were choirboys” at the time would confirm not only that the allegations were “fundamentally improbable” but also that they were “most certainly false”. The applicant said that he and the Master were always at the front of the Cathedral after Mass, and that the sacristan and his assistant would have been in the sacristy cleaning up and bringing out the vessels and other items after the Mass; they would have been able to see the areas where the acts were alleged to have occurred. He added that the number of people milling about on such days meant that there was no chance that the allegations could be true.

A alleged that he and B had broken away from the procession and had gone back into the Cathedral to the priests’ sacristy, which was unlocked.

There, they found a bottle of red altar wine and drank some of it, whereafter the appellant was alleged to have appeared alone in the doorway saying, “[w]hat are you doing in here?” or “[y] ou’re in trouble”. A alleged that the appellant undid his trousers and belt and started “moving ... underneath his robes”; he is alleged to have taken B aside, taken his penis out and lowered B’s head towards it for “barely a minute or two”.

A said that the appellant then pushed him down into a crouching position, while standing with his penis erect, and allegedly pushed his penis into A’s mouth; this was said to have occurred over no more than “2 minutes”. A also alleged that he was told to undo his pants; he dropped his pants and underwear whereupon the appellant touched A’s penis and testicles; as he was doing this, the appellant was alleged to have touched his own penis. These further acts of indecency occupied “a minute or two”. A said that he and B made some objections, and although they were sobbing and whimpering, they did not yell out. He added that the appellant told them to be quiet.

Evidence given at trial Numerous witnesses were called by the Crown who were unfavourable to the prosecution’s case; leave had been granted prior to trial for the prosecutor to cross examine them. These witnesses were asked whether the Archbishop’s vestments could be moved to the side or parted (to allow exposure of his penis), about accessways through corridors and the doors to the priests’ sacristy, whether the sacramental wine was always locked away, and whether it was possible for two choirboys to separate from the procession without being noticed. The answers were not helpful to the prosecution case. The prosecutor did not, at trial, pursue examination on these topics at any length, nor did he assert that these witnesses’ testimony was wrong or unreliable.

A and B then re-joined some of the choir in the choir room before leaving the Cathedral precinct to be picked up by their parents. A did not complain to anyone about this first incident. Nor did he discuss it later with B.

The Master explained that his church office had a long history, the duties of which are set out in learned works, which date back centuries.

The teaching in these texts required that an Archbishop not be unaccompanied from the moment he entered a church. The Master gave

At a later Sunday solemn Mass at the Cathedral, A alleged that while he was processing with the

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evidence at trial that the two occasions in question were memorable because there were many congregants who wished to meet the new Archbishop. Further, that, at the conclusion of the “meet and greet”, he accompanied the appellant to the priests’ sacristy and assisted him to remove his vestments. His evidence on these points was unchallenged. An altar server also gave evidence that the occasions were memorable because the appellant was drawing a deliberate contrast between his administration and that of his predecessor, Archbishop Little (by adopting the practice of greeting congregants after Mass).

A witness who had served as the Cathedral’s sacristan for 38 years testified that the appellant would never return to the sacristy unaccompanied, and that it was his responsibility to assist the Archbishop with removal of his vestments and to make sure that they were properly hung. He said that there was always a priest present to assist, or “one of us”. This evidence was corroborated by other witnesses; all of it was unchallenged.

The assistant organist described the priests’ sacristy as a “hive of activity” after every Mass.

The choir marshal recalled that there were “people everywhere” in the sacristy corridor, with people “coming in and going out”, including altar servers bringing implements into the priests’ sacristy. He said that there were almost always several other priests acting as concelebrants who would vest and de-vest in the priests’ sacristy. This evidence was also not challenged.

The unreasonable verdict ground of appeal – the law The High Court affirmed that the function of a court of criminal appeal in determining a ground of appeal that a verdict is unreasonable proceeds on the assumption that the evidence of a complainant was assessed by the jury to be credible and reliable; beginning with that assumption (unless it was obviously untenable), the appellate court’s task is to examine whether the jury were entitled to reach their verdicts based on that assessment. The appellate court should closely examine the trial record to see whether, notwithstanding the jury’s assessment – either by reason of inconsistencies, discrepancies, or other inadequacy, or considering the evidence taken as a whole – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt. This approach accords with authority from the Supreme Court of New Zealand, in R v Owen [2007] NZSC 102; [2008] 2 NZLR 37. In Owen, the Supreme Court held that a verdict will be unreasonable if, having

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regard to all the evidence, no jury could reasonably have reached a verdict of guilty to the standard of beyond reasonable doubt (observing at [5] that “a verdict of guilty based on some evidence is not necessarily a reasonable verdict”).

Another way of putting it is to ask whether a verdict of guilty can be supported by a reasoned and logical assessment of the evidence, set against the standard of proof. It is not enough that the appellate court might reach different conclusions about some of the evidence. The case for different verdicts must be clear and well-reasoned, in keeping with the historic restraint of appellate courts when determining appeals from jury decisions.

The Court of Appeal judgments Both the Court of Appeal and the High Court had the advantage of being able to view for themselves the evidence in chief and cross examination of A, which had been visually recorded. This diminished any advantage the jury had by having seen and heard the witnesses.

It is convenient to look first at the dissenting judgment of Weinberg JA, since it accorded with the High Court’s opinion. Weinberg JA, who would have allowed the appeal, considered that there was ample material upon which A’s account could be subject to legitimate criticism: there were significant inconsistencies and discrepancies, and a number of his answers “simply made no sense” (Pell v The Queen [2019] VSCA 186 at 455). Weinberg JA did not assess A to be such a compelling, credible and reliable witness as to necessarily accept that his account proved the elements of the offences beyond reasonable doubt.

Other aspects of the case were reviewed, including the prosecutor’s questionable discounting of evidence of practice and habit (the prosecutor argued without an evidential basis that it was “entirely possible” that on the occasions in question the usual practice was not followed – this was an invitation to discount this clear evidence based on nothing more than speculation). Weinberg JA observed at [947] that an argument that a habit or custom may not have been followed on a particular occasion is not proof that it was not followed on that occasion: such speculation does not entitle the finder of fact to put such evidence to one side. Further, if the second incident occurred in the way A described it, it was highly unlikely that none of the many persons present would have seen what was happening. His Honour concluded that it

was not open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.

the appellant’s use at the time” (at [51]). The High Court, at [53], added this important point: “There is no requirement that a complainant’s evidence be corroborated before a jury may return a verdict of guilty upon it. Nonetheless, it was not correct to assess the capacity of A’s evidence to support the verdicts on a view that there was independent support for its acceptance.”

The eminent majority (Ferguson CJ and Maxwell P) disagreed; they held that the jury reasonably convicted the appellant based on A’s testimony alone, finding that the events as recounted by A could have occurred, since they were fleeting; and that evidence of practice and habit provided no answer at [333] to [351]. Relying heavily on statements of abstract orthodox principle about the constitutional importance and role of juries at [40] and [41], the majority saw no evidence that A “had been caught out or had tripped himself up” at [73], which experienced judges ought to have known is not common in criminal cases of this type – real criminal trials are not scripted like an episode of Perry Mason]. The majority deployed a familiar but questionable cliché, that the jury were “well equipped” to determine A’s reliability and honesty at [75]. The majority also referred to A’s knowledge of the interior layout of the priests’ sacristy, which their Honours found considerably enhanced the credibility of his account (however, the observation must be made that the Cathedral was not a mediaeval monastery: i.e., the sacristy was not a secret passageway known only to priests). “More striking still”, the majority said, was the fact that A identified the priests’ sacristy as the setting of the assaults given that, at all other times, the appellant would have used the archbishop’s sacristy: however, that observation was equally consistent with a fabricated account.

The High Court’s judgment The High Court opined that the division in the Court of Appeal over the assessment of the case drew attention to the highly subjective nature of demeanour-based judgments (citing Fox v Percy (2003) 214 CLR 118 at 129 [31] per Gleeson CJ, Gummow and Kirby JJ, also cited in the Court of Appeal; for similar doubts about the weight to be given to demeanour, see Taniwha v R [2016] NZSC 121; [2017] 1 NZLR 116). Caution over the reliability of demeanour assessments is now settled law, which was recognised by all of the judges.

The High Court added that an assumption that a group of choristers, including adults, might have been so preoccupied with making their way to the robing room as to fail to notice the extraordinary sight of the Archbishop of Melbourne dressed “in his full regalia” advancing through the procession and pinning a 13-year-old boy to the wall, was not rational. The Master’s evidence of having an actual recall of being present beside the appellant on the steps of the Cathedral as he greeted congregants on 15 and 22 December 1996 was unchallenged; it followed that the Court of Appeal majority was not entitled to have reservations about the reliability of the Master’s affirmative answers on this key issue.

While he had demonstrated a lack of detailed recall of certain of the events, this was to be expected after the passage of 20 years. The High Court observed that the majority’s view echoed the prosecutor’s closing submission to the jury. Tellingly, this line of argument was not pursued by the respondent on appeal to the High Court. Further, the majority’s reasoning gave rise to an inconsistency in the way in which a jury must be directed under the Jury Directions Act 2015 (Vic): namely, the requirement to take into account the forensic disadvantage experienced by the appellant arising from the delay of some 20 years before being confronted with the allegations (a 10-year period of delay triggers this caution in New Zealand, see s 122(2) (e) Evidence Act 2006). By discounting a body of cogent evidence that raised real doubts as to the commission of the offences, the High Court considered that the majority in the Court of Appeal overlooked a likelihood that the memories of honest witnesses as to details might have been affected by delay, meaning their evidence should not be wholly rejected by reason of any such frailty.

The High Court observed that the mere fact that A had been inside the priests’ sacristy did not afford any independent basis for finding that he had been sexually assaulted by the appellant, adding: “On any view of the matter, acceptance of A’s account involves that the appellant was not acting in accord with his regular practice and that he was an opportunistic sexual predator. A’s account would be neither more nor less inherently credible if the Archbishop’s sacristy had been available for

Finally, the High Court criticised the majority’s discounting of evidence of habit or practice.

The High Court cited Professor Wigmore as follows: “[e]very day’s experience and reasoning make it clear enough.” (Wigmore, Evidence in Trials at Common Law, Tillers rev. (1983), vol 1A, §92 at 1607). The majority’s assessment of the evidence of four witnesses to the effect that it was possible that the applicant was alone and robed, in contravention of centuries-old church

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law, overlooked the crucial missing element of this evidence: no witness said they saw him alone when robed. The majority’s reasoning entailed an implicit reversal of the burden of proof which led them to falsely reason that it was “quite possible” for the priests’ sacristy to have been unlocked, and that it was “open to the jury” to find that the assaults took place in the five to six minutes of private prayer time, before the “hive of activity” in the priests’ sacristy. The High Court found, in allowing the appeal, that this reasoning erroneously discounted any possibility of the boys running into others and failed to properly analyze the effect of the unchallenged evidence.

Bail and implications Cardinal Pell was denied bail pending appeal.

He suffered considerably while in prison. This caused Cardinal Pell psychological damage, as an interview after his release from prison shows (go to https://www.youtube.com/ watch?v=3OX2aUvG51I).

It is difficult in Australia and New Zealand for appellants to obtain bail pending appeal. I successfully argued recently in the Court of Appeal, in Waters v R [2019] NZCA 117, that an overlay to the statutory test, that bail pending appeal should be “exceptional”, “unusual”, or “rare”, should be rejected (such words cannot be found in the relevant test in the Bail Act 2000).

While agreeing with this point, the Court held at [25] that these words may yet accurately describe the mountain that appellants must climb in order to get bail pending appeal, since appellants “have already been convicted and that will always be a very influential consideration.” Kós P (sitting alone) reinforced this point when observing, in Lock v R [2019] NZCA 163, that: “It would be wrong to conclude that Waters has parted substantially from the past, materially lowering the threshold for bail pending appeal. The language of adverse presumption has been the language of prosecutors, but it has not been the language of the Court. The reversal of onus, non-application of the presumption of innocence and undeniable fact of a considered determination of guilt, are all distinct obstacles to a successful application for bail pending appeal. Such applications are statistically less likely to succeed than applications pending trial, where those obstacles are for the most part absent. The passage quoted from Waters in the preceding paragraph reflects that reality.”

With respect, the language of adverse presumption had been the import of the language of the Court until Waters, and it is almost always the starting incantation of prosecutors. The ongoing use of

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such language tends to water down the individual applicant’s circumstances; it moves the focus away from human realities, particularly important when an appellant is a person with no prior or no serious prior convictions (and therefore who has never been to jail before). Such language can be a way of avoiding a confrontation with the hard realities of what imprisonment entails: the destruction of ordinary life, loss of regular contact with family and whanau, and often long periods of solitary confinement. Many inmates waiting for an appeal to be heard have been, to my direct knowledge, severely assaulted (including broken bones); they have been stuck in solitary cells for 23 hours a day, over many months; some have not been given adequate bedding and amenities; some have serious medical conditions that are not always adequately treated, and sometimes they are shifted to prisons at a distance from their family/whanau, supporters and lawyers (owing to muster overloads); these inmates are often friendless and alone.

What tends to dominate the analysis for bail is the strength of the grounds of appeal. In sexual offence cases it is not often possible to reliably predict the outcome of the appeal before written submissions are filed. The hearing of appeals can be unavoidably delayed while funding is obtained, and while attempts are made to obtain fresh evidence. Appellants' resources are not unlimited - these steps necessarily take time.

It ought to have been obvious that the Crown case against Cardinal Pell was built on a flimsy foundation of weak testimony and emotional appeal. The Court of Appeal observed at [3] that “he was ‘not to be made a scapegoat for any [perceived] failings … of the Catholic Church’ nor for any failure in relation to child sexual abuse by other clergy”. Cardinal Pell had no previous convictions and a compelling good character; he was elderly and unaccustomed to the rigours and horrors of jail; he faced a long period of solitary confinement. Such people should be considered more favourably for bail pending appeal.

Those interested in learning about the human effects of imprisonment might find reading Cardinal Pell’s prison journal instructive (published by Ignatius Press, November 2020).

The lesson from Cardinal Pell’s case is not just that the justice system can do better (a selfevident truth for all human institutions), but that the process of appeal ought to take more account of the human costs of miscarriages of justice. *Warren Pyke is a leading criminal appeal barrister with over 28 years of experience. Contact Warren at wcpyke@gmail.com

Reading the Signs on a Journey Into Māori Law

By Māmari Stephens*

This article was first published on E-Tangata, on 13 February 2021. It is reprinted with permission.

Māmari Stephens, a legal academic and Anglican priest (and good friend of E-Tangata’s), is one of 24 Māori academics who tell their personal stories in a new book, Ngā Kete Mātauranga: Māori scholars at the research interface, edited by Jacinta Ruru and Linda Waimarie Nikora, and published by Otago University Press. Here is Māmari’s essay from the book.

I’d like to say my journey into law and mātauranga Māori started with a great urge to fight for Māori peoples, to do right, to remedy injustices. But that is not how it started at all. It started, in a way, with a whack on the leg. My leg, that is.

Shift. Flicker. Focus.

In my mind’s eye I was about ten or twelve, although, to be fair, every major memory of my childhood seems to stem from when I was about ten or twelve. In some ways I was a bit of a scared kid: scared of death, scared of the prospect of nuclear war and, in my heart of hearts, I was also scared of other Māori people.

Other than my occasional timid forays into “Māori Club” and a trip to Ahipara under the wing of my oldest brother, I had no idea how to speak or understand te reo Māori. I had no clear idea that there was such a thing as tikanga Māori.

Until, that is, the day I sat on a little table in our lounge at home in Christchurch. I was wearing shorts.

My brother walked in, saw me and, in a few quick strides, crossed the room and slapped my bare leg. Hard. I still remember the sound, and the shock, followed by confusion and shame.

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“Never sit on tables,” he snapped. I have never sat on a table since.

At that point though, I had no idea why I couldn’t.

I had learned that I had crossed a line somehow, but I couldn’t see the nature of the line, nor what lay on either side of it. I had learned I was subject to a law, but not why. My brother never slapped me again, but the lesson remained.

Shift. Flicker. Focus again.

It’s 2013. We were about to go on to Korou Kore marae in Ahipara for a wānanga: me and some other people I didn’t know. I grabbed a cheap wrap-around skirt from the car boot. I knew enough about tikanga to offer a basic karanga, no one else seemed keen.

Just as well, because my Aunty Mere was on the other side. She called, I called. We crossed the marae ātea.

I was relatively confident as we moved into the wharenui, I put myself in the back row on the visitors’ side. I saw, but didn’t truly see, that some of the others had gone up to stand in front of the pictures of tūpuna on the far wall of the wharenui for a moment or two before heading to the chairs.

I paid no heed. I had done my job.

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It was only much later that day when my Aunty Mere casually, yet very pointedly, let me know that it actually had been my job to lead the group up to the pictures, to allow due respect to be paid to those who had passed on before the whaikōrero could begin: “It’s what we do up here.”

She sighed, “You must have forgotten.”

No. I had not forgotten. I had never known. I knew something about karanga, but not enough. Up to this point, like many urban-based wāhine Māori, I had “learned” karanga in an ad hoc way, without grasping much by way of nuance or learning how to read what was going on around me.

This time when I learned of my transgression, there was no shock, just a dawning realisation, a sick feeling, heat in my face and there it was again: shame.

Three decades or more on, and I understood a little better exactly where I had crossed the line.

In the months and years afterwards I was able to pause, listen, learn and develop the way in which I did karanga. Aunty Mere has passed on now, but her gentle but utter deconstruction of what I thought I knew has always stayed with me.

Shift. Flicker. Focus again.

We all woke up to a crisp Ahipara morning and the rhythm of the distant early-morning surf. The tide was out, but there was to be no beach walk this holiday morning along Te Oneroa-a-Tōhē. My Australian-raised nephew Caleb had discovered the beginning of the Herekino walking track on the Awaroa–Kaitāia road. We were off, Caleb, his dad, Mark, our cousin Medadane and I, to try out the track.

We pulled up just after 7am and saw two signs at the track entrance. One was defaced, but we could still see the Department of Conservation logo and instructions for walkers to keep the forest safe from the disease kauri dieback: SAVE OUR KAURI FORESTS! Don’t take in non-permit animals! SCRUB SOIL OFF SHOES! Or words to that effect.

Caleb and Mark disappeared beyond the darkness of the track entrance that was wreathed with green fronds. Yet Medadane and I stood still, looking not at the neglected DOC sign, but to the right of it, at a hand-lettered sign on fence boards in two sections, with the red letters maybe fifteen centimetres high:

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RAHUI I ROTO TE NGAHERE Caleb hadn’t really noticed either sign. Through no fault of his own, he could not have read the red one even if he had noticed it and could not have known it said something like, “prohibited in / the forest”.

A rāhui had been imposed by local Māori from our hapū and iwi, our whanaunga. Medadane and I understood that the forest track had been made tapu, ritually restricted. But questions still flashed before me. When had the sign gone up?

What was it for, exactly? Could the rāhui have expired? Who says when rāhui expire anyway?

There was no signal on my phone, so we had no way to check.

Ah well, no matter, the result was just the same.

Medadane and I looked at each other, and then we shouted for the men to come back. We both understood we were forbidden from entering and that was that.

My mind scrolled quickly to the faces of a couple of senior women in our hapū who would be pretty cross if we simply blundered our way past the sign and into the inviting coolness of the track beyond. Heck, our photo might even end up on our Wainui marae Facebook page or the Ahipara Takiwā page for all the hapū to see.

Nup, the home people, the hau kāinga, call the shots here, not me, city-born Hone-come-lately that I have always been. “Beach walk instead, whānau?” Medadane called. No rāhui there at the moment. Back to the car. No shame at all, this time. *** These three minor moments show a haphazard development (of sorts) in my understanding of the existence of mātauranga Māori: in particular the way in which tikanga Māori comprises law.

From vignette to vignette, like in scenes from an old Viewfinder, I am a slightly different person in each one.

In the first, I cannot see any sign of law that I ought to be observing, and only learn it exists through (transitory) pain and fear. In the second, I see it, and the duty I have to uphold, but I am ham-fisted and ignorant and I fail, at least in part, to discharge that duty. In the third, I see the sign, I read the

sign correctly, I act on my reading of the sign, and so I reinforce our tribal collective’s position with my obedience to the relevant tikanga.

In all three episodes I am with whānau, other family members, to whom I am somehow responsible.

Whakamā, or shame, attends me in the first two, but I avoid her outstretched claws at the last. *** The law of any people shows us (among other things) the lines that we ought not cross, and it also enables us to identify the line-crossers. Law reassures us of our own centrality and normality.

All peoples are legal peoples, and all people to some degree consider themselves to be “us” — bound by law of some nature, yet at the same time seeing those who are not so bound as “them”: not bound, not normal.

My journey into law and mātauranga is one more defined by absence, understanding of loss, whakamā, accident and a sense of coming in from the cold, than by any programmatic acquisition of expertise.

In fact, up until my early 20s, Māori people and language had never really been normal at all to me. Māori concepts and ideas were not normal either, except in the most abstract and safe way. I had never really understood my own position as a child of the urban migrations; as a child emerging from earlier generations of my hapū, bearing its history and not even knowing it.

That position began to change as a result of learning basic te reo Māori for six months under the teaching and care of Niwa Short, Pererika Timutimu, Wilson Poha and others at kuratini (Wellington Polytechnic) in 1991.

Until that point I had had no visceral understanding of what or who had been lost by Māori, but the process of entering into te reo Māori and listening to others, as we had to shed our skins and learn about what we had lost, changed me forever and is still changing me now.

It also took me a long time to understand tikanga Māori as law by which I too could also be bound.

Like most people in this country I grew up (in Christchurch with my Pākehā mum), presuming I was in a country with one complete legal system, to the extent I ever thought of such a thing existing at all.

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As far as I was concerned, we inherited this legal system, whatever that was, from the English, and that’s why we have courts and Parliament and stuff like that, not that I paid attention to what they really did. I had a brother who joined the police very early in my life, so law enforcement and uniforms were benign to me; police were there to keep me safe, so I believed.

My unthinking acceptance of a single and allencompassing legal system was reinforced in 1993 when, quite unexpectedly, I became a probation officer. I was an underemployed radioprogramme maker in Wellington and in a burst of curiosity one day I walked into the Community Probation Service on Thorndon Quay, then in the old Tramways Building, wondering if they had any jobs.

I had trained in radio broadcasting at polytech, I had been working in Māori broadcasting at Te Upoko o Te Ika on Lambton Quay and I had little idea what a probation officer even was. Could I be one? I was 23, needed a better income and had few clues.

Martin Roberts was the duty probation officer on that day, and answered my questions with patience and grace. A few weeks later he rang me and offered me a temporary job. I spent the next seven years jobbing as a probation officer, learning how to apply the Criminal Justice Act 1985, write pre-sentence reports, make sentence recommendations and supervise people on community-based sentences and on parole.

For the most part, I never questioned my role in this system I had become a tiny part of. I learned a great deal from experienced officers like Martin, Fiona Kale, Etai Morgan, Marian Kleist, Trevor Shoesmith, Audrey Moonlight, Murray Olsen and others. I learned about public service, integrated offender management systems and government policy. I learned about servicing the court. I learned how to pitch my sentencing recommendations to judges in such a way that they would be more likely to be accepted. I learned little about Māori experiences in the criminal justice system. Or more accurately, I paid little attention.

On the other hand, I met my husband-tobe, Maynard Gilgen, there, a Department of Corrections psychologist at the time, and it was he more than anyone else who helped me see that just as language loss was a deliberate policy, the legal system we were working in had never been inevitable and was not immutable. It was, and

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remains, the institutional result of choices made, though not by Māori, and its disproportionate and calamitous impact upon Māori has never been an accident but is central to its design and operation.

His long-held anger and grief for Māori, for our people, worked further cracks into my unthinking acceptance of the status quo that had protected me from truth for so long.

It was from this time in the early and mid-1990s, slowly, so very slowly, and helped by a lot of people wiser than I, that I began to understand the Māori world as more than a set of abstract ideas, surviving artefacts and compulsory ritual that I could simply learn and acquire like a series of badges.

A couple of years into my probation life, our colleague and mate Etai Morgan suggested to me one day that I’d make a good judge. After my initial snort of disbelief, this suggestion prompted me to at least think about studying law. Could it be harder than probation work?

I had little knowledge of lawyers. I don’t think I had ever met one when growing up or before my time in Corrections, I knew nothing of what they did, other than what I saw on television shows like Law and Order. I had just started studying te reo Māori and classics at uni anyway, so the next year I added first-year law and surprised myself by loving it and getting good marks. I have no recollection of Māori-specific learning in law that year, but I remember how few other Māori law students there were.

Actually, noticing Māori absence was a hallmark of my university study. In studying Greek mythology and what it teaches us about ancient Greek society, I wrote essays about Māori mythology and what that teaches us about Māori society, old and modern.

In my law study it was not surprising then that I began to wonder what Māori law was, where it could be learned and understood. In jurisprudence classes, I wrote about what the jurisprudential theorist H.L.A. Hart meant when he wrote about “primitive law” and I wondered what he would have made of tikanga Māori.

With occasional exceptions, such as the Māori land law course, I was not learning anything specific about mātauranga Māori or Māori law in my law degree. Yet in 1997 contract law classes, Tony Angelo taught us the story of Ponga and

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Puhihuia and how that story could reflect Māori notions of contract.

This was a revelation to me: that Māori narratives could reveal law; they could show the lines and what could happen when these were crossed or violated.

After saying goodbye to Corrections at some point, I graduated in law and in 2002 ended up working for Martin Dawson in the Māori legal team at Russell McVeagh (“Ngā Manu Tāiko”) as a summer clerk, a graduate position, and then as a solicitor.

I learned that this Pākehā man believed with all his heart that Aotearoa had been Māori land and remained Māori land until Māori said otherwise.

He had an abiding faith in the relevance of mātauranga Māori and in Māori people and in us, his small team, and in the ability of lawyers to help bring about change for the better.

When he died in 2003, taking a little bit of all our hearts with him, not long after I had had my first son, I wanted to do something that he would approve of, perhaps even be proud of. A couple of years later I had my chance; I became a lecturer at the Faculty of Law of Victoria University.

In the first year of holding that privileged position, I had a realisation, while on maternity leave with my second child. The general legal system of New Zealand has at its disposal an enormous wealth of Māori language law-related source texts dating back to the early nineteenth century, as Māori had sought from the earliest days of contact to understand and interact with Pākehā ways of doing things, including law both sacred and secular.

Many of those Māori language texts still remain relatively unexplored, as yet, but in those texts resided a Māori legal language and terminology.

By seeing the almost complete absence of mātauranga Māori in the study of New Zealand law, I realised that te reo Māori, despite all that colonisation had thrown at it, has always been an ordinary language of law and civic discourse.

Te reo Māori, in fact, was an inevitable vehicle for mātauranga Māori, it has always existed inside and outside of the monolithic legal system, and we needed to pay attention to it.

To cut a long story short, I was part of the Legal

Māori Project based at the Law Faculty that collated a corpus of reo Māori sources, compiled and built a dictionary of legal Māori terms (He Papakupu Reo Ture, LexisNexis, 2013), and created a set of related online resources, including an online dictionary (the Legal Māori Resource Hub at www.legalmaori.net). I think Martin would have been proud of that.

My own inconsequential learning, stumbling and experiences of whakamā, along with those research experiences of looking for absences and seeing Māori legal language and concepts at work in pulling together the dictionary, has shown me the normality and ordinariness of tikanga Māori as laws by which I and other Māori can also choose to be bound as circumstances decree.

Any exploration of tikanga Māori should look to the wealth of oral and written Māori textual and linguistic evidence that is so far under-explored.

Such evidence can illustrate ordinary modern and historical practices (such as hui, or decisionmaking gatherings, as the pre-eminent forum for the generation of Māori law) of Māori communities, with all their variety and their changes over the course of centuries.

These practices in turn reveal very specific concepts and values of relevance to law.

The knowledge of these practised values is transmitted over time from person to person within, and between, Māori collectives, such as whānau, hapū and iwi.

that generates sound mātauranga Māori and shows the operation of Māori law in all its fracturedness and sometimes wholeness. I have done little more than hint at what mātauranga Māori can add to our full understanding of law in Aotearoa New Zealand. I hope to do more in my current and future research and teaching.

There are small signs that the New Zealand legal system and New Zealand society, as a whole, is starting, slowly and reluctantly, to pay attention to mātauranga Māori, including Māori law, as a matter of relevance to all who inhabit this land.

For years now, Sir Joseph Williams has been reading the signs and outlining the possibility of a third way of law, a “Lex Aotearoa” that incorporates Māori law (or Kupe’s law, as he terms it) and Cook’s law. That third way is where we in the legal research world need all the help we can get, as we look for new lines and new boundaries, and consider anew what we are really bound by.

When a rāhui was imposed in December 2019 by Ngāti Awa after the eruption of Whakaari with the death of 19 people, the ritual prohibition was observed by most, if not all: Māori and non-Māori alike.

In that moment of trauma, and maybe just for that moment, we had all learned to read the signs and see the line.

Ngā Kete Mātauranga: Māori scholars at the research interface, edited by Jacinta Ruru and Such practised values will be at the heart of Linda Waimarie Nikora, and published by Otago tikanga, although tikanga cannot just be reduced University Press, is now in bookstores for $60. to a set of rules. Without relying on a centralised institution or set of institutions, tikanga itself is * Māmari Stephens (Te Rarawa, Ngāti Moetonga, Te not only made up of the rules of behaviour, but Rokekā, Ngāti Pākehā) is a legal academic and Anglican priest. She is a Reader in Law and Associate Chaplain also comprises the mode for determining when (Māori) at Victoria University of Wellington. Māmari such rules ought to be used. Tikanga also enables developed and co-edited He Papakupu Reo Ture: the setting of standards for evaluating the proper A dictionary of Māori legal terms (LexisNexis, use of such rules. In reality, there is no unified 2013), a Māori–English bilingual legal dictionary. She or consistent way in which tikanga appears to wrote the first comprehensive text on social security be viewed in Māori thinking and practice, but law in New Zealand, Social Security and Welfare Law in undoubtedly tikanga shows us what is valued Aotearoa New Zealand (Thomson Reuters, 2019). She within specific Māori collectives at any given time. is married to Maynard Gilgen and they live in Pōneke These practices, standards and values are discoverable but, as with other Indigenous peoples around the world, there are serious gaps due to a fracturing of tikanga Māori that has occurred as a result of colonisation, war, urbanisation and modern Māori life.

with their three tamariki, Te Rangihuia, Havelund and Jessica-Lee.

© E-Tangata, 2021

Notwithstanding this, we need good scholarship

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Kate Sheppard Chambers – a Different Approach to Barristers’ Chambers

By Jacqui Thompson*

Isabella Clarke and Charlotte Griffin

Kate Sheppard changed New Zealand society from her home in Ilam, Christchurch. She and her team of suffragettes wrote her speeches and pamphlets in this house and prepared the largest ever petition presented to Parliament, by posting signatures on her dining room wallpaper.

Kate didn’t have access to conference rooms, private offices and views across the harbour. But she got the job done. One hundred and twentyeight years after Kate presented her petition in 1893, more people are wondering whether expensive office premises are necessary.

The barriers to working virtually have been whittled away over recent years and Covid proved to be the unexpected champion of remote workers.

It graphically proved what many people have believed for several years but most workplaces failed to implement - that it is perfectly possible to run a successful legal practice without a physical, shared space. Today, clients are happy to meet over Zoom, employee supervision is not the issue that many thought it would be, and for timeimpoverished lawyers, the work from home option is proving attractive.

However, the concept of shared virtual chambers is different from simply working from home. A virtual chambers shares an identity with colleagues, a set of values and kaupapa, and a sense of collegiality. Members share a connection with each other and are known by the outside world as being part of that chambers. Most importantly, the barristers in the virtual chambers can support and encourage each other.

The bar is now welcoming a new virtual chambers in the form of Kate Sheppard Chambers. It started with the return of Wellington barrister, Charlotte Griffin, from a spell living in Switzerland.

She faced a dilemma. She knew that to build her practice as a barrister, the many advantages of being part of an established chambers were important.

Charlotte is the first to acknowledge the help and support of the barristers in her former chambers

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when she first went to the bar.

However, she was not sure that a return to the traditional chambers model would suit her life and career aspirations. Charlotte felt that she needed an approach that would allow her to combine all aspects of her life. She wanted to be able to work in the evenings or early mornings when the children slept (as many parents do). She also noticed for many years her need to actually be in an office when running between client meetings and appointments during the day was less and less.

Charlotte had time to make her decision in a more deliberate way than when she first went to the bar.

She was aware of the hidden pressures on women wanting to start their own business, and what they had to overcome or ignore or suppress to fit within the existing structures. In the end, she did not join an existing chambers. She was appointed a District Inspector for Mental Health in June 2020 which involves a lot of travel around the Wellington region. The role gave her some time to work out whether she needed a physical office in the city.

She discovered that she did not.

Charlotte acknowledges the role of a senior judge in her decision-making process. They, and another female lawyer, were talking about what had to be done to get more women to the bar. The judge pointed out that the reality was that there were more men at senior levels, particularly in the commercial field, and that there were fewer women available to argue the top cases in the appellate courts. The judge thought it was time for that to change and asked what would encourage more women to move to the bar? Charlotte halfjokingly suggested that she could set up a virtual chambers for women. But the judge loved the idea and encouraged it.

This idea took hold and she caught up with her friend and former Crown Law colleague, Isabella Clarke. Izzie had come from a similar background as Charlotte. She was still working for Crown Law and loving it – unlimited court time, and interesting work. Both Charlotte and Izzie speak of the time there with great appreciation, citing its supportive environment and the sense of collegiality. They were all on the same team. However, over the years they had spoken about the future and how it would look for women to be able to work together differently.

Izzie still planned to go to the bar at some stage, so Charlotte suggested that if they could start up their own chambers and genuinely do things differently. It was a big step for Izzie who was happily employed.

Charlotte already had a practice that was doing well, but Izzie was going to have to give up the security of her salary, her senior status and the ease of having others deal with her tax or firewall protections etc.

Izzie took some time to mull over the idea. She had been to a six-week course run by Mary Scholtens QC and her life coach sister, Ava Gibson, that focused on senior women lawyers and the challenges that they face. Izzie describes this as having been formative.

So, when Charlotte raised the idea of the virtual chambers, it spoke to Izzie as being consistent with what she was thinking about. She also spoke to a (male) QC who was very reassuring and told her it was a good prospect for her. She knew that slotting into an existing set would have been easier, as everything would already be in place. But Izzie felt passionate about what they could do with this chambers in terms of their own lives and, hopefully, in the future for others.

Having decided to create their own virtual chambers, part of the challenge for Charlotte and Izzie was how to make this work so that not only women already at the bar might join them, but also employed women could have the courage to leave their well-paid jobs and take a chance on running their own business. “Because it is wonderful running your own business,” Charlotte says. “I could never go back. It gives me a sense of fulfilment in managing my own working life.”

A major reason that women do not rush into running their own businesses is that they are afraid that they will not be able to manage financially, especially given the costs of joining a chambers, which can be high.

Kate Sheppard Chambers relieves many of these financial pressures. “You don’t have to pay monthly rent to be part of the set. If you want to have a child, you can just take a break for a year or two – you do not have to take yourself off the website. You can stay as part of the chambers and bring your baby to our virtual meetings if you want to.”

Is it sometimes difficult for women to fit within the traditional chambers model? Charlotte suggests that it may depend on the stage that you are at in your career and your life. A senior woman law firm partner, whose children have grown or who does not have children or other dependents, may not have the same calls on her time during the workday. She may find it easier to be in the traditional chambers model and enjoy the benefits of a separate office. However, sometimes for women who have young children depending on them, the move to the bar might seem overwhelming

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– everything could seem too hard and too risky financially, as they become responsible for paying their operating costs. The impact of financial uncertainty, especially on solo working mothers, can be a real barrier.

This has, historically, resulted in many women (certainly in the civil field) joining the bar at a much later stage of their career, notwithstanding that they may be passionate about litigation and want more court time. (The exception might be criminal law where people will start earlier as there are fewer law firms that do criminal law, and they therefore have to consider the bar or sole practice.)

Both Charlotte and Izzie emphasise that women can succeed in the traditional structures, and these environments are not negative or detrimental. But they want women to have more choice and provide more flexible, and future-looking options that allow for a time in a career when one’s home or personal life might need more accommodation. “I love that I can be talking to my clients and then two minutes later be downstairs dealing with family,” says Izzie. “It just means that I can weave my career seamlessly into my life. That won’t be right for all women. Many women love the traditional office environment and leaving home behind when they walk out the door.”

The aim, therefore, was to find a way of working that aligned with their values and gave them the best life they could have in career terms. It was about a choice – a viable alternative to the traditional practice that still incorporated the best of chambers life. And this thinking flowed into the name for the chambers.

“We chose the name Kate Sheppard Chambers for everything that she means. Her message is one of advancement of women so they can be all they want to be,” says Charlotte.

Izzie expands: “The kaupapa of the Chambers is very much about supporting women to be the best in their career, whatever that career looks like. It is about recognising that there is not just one model of success. For some, it may be about becoming a QC, but for others it may be about having a satisfying litigation practice for the number of hours a week you wish to allocate to it. It is about joining together to help each of us succeed in the way that fits best for us.”

Mentoring will be a big part of the approach of the chambers. Charlotte noted that often you can make a positive contribution by helping women see things in a different way. Both barristers agreed that many of the phrases used about women can be extremely demoralising and wounding - for example: “she isn’t a team player, she is too aggressive”. Often that means they have simply given an opinion in the same matter of fact and forthright terms as others in the room. In their experience, people interpret that differently in a woman than in a man.

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But equally women can pull themselves down. They may, for example, worry about putting themselves forward for a role in chairing an event because they might look “too pushy”. Charlotte and Izzie believe that through mentoring, women can help each other to overcome these barriers that are language based, but that stay in the mind and affect actions.

Charlotte participates as a mentor in the NZBA Mentoring Programme and is particularly interested in assisting junior women at the bar in this capacity.

Izzie is quick to reassure that the members of Kate Sheppard Chambers will not be hiding in their home offices 24/7. Charlotte notes she’s barely at home during the day – she works remotely from many locations around Wellington daily while blending the demands of her practice and court work with her District Inspector role. They have a hectic schedule of work lunches and meetings. There is a mix of virtual and in person meetings. There has been no real change for their clients who have, since Covid, become used to virtual meetings. It is the best of both worlds.

Charlotte emphasises that you still have to cultivate relationships and do so in meaningful ways so that everyone feels that they are part of a set. This may involve thinking differently about the activities and being more accommodating, but it should still be fun. There is already a Kate Sheppard Chambers WhatsApp group, sharing relevant and humorous articles, memes, and advice. Another challenge is to make the virtual chambers feel “real”. They have invested in the website as well as business cards and the stationery. They have real design concepts that reflect their values. Charlotte and Izzie note the white camellia in their logo – the symbol of women’s suffrage in New Zealand. To them, represents the strive for legal equality and inclusion for all.

A major advantage is the money that might otherwise be spent on physical premises can now be committed to women in the law. Alongside Victoria University, they have established the Kate Sheppard Chambers Scholarship which will be awarded annually for research related to women and the law. They intend to sponsor events alongside other organisations such as Wellington Women Lawyers’ Association.

They also want to go into the law schools and talk to students who are considering their future legal career options. “Working at a large law firm straight out of university is not the only path. We want to see young women becoming barristers and pursuing careers in advocacy in their twenties and early thirties – why not? Men have done this for generations.”

Both Charlotte and Izzie are committed to an egalitarian approach. They do not want anyone to feel as if it is “their” chambers – it must belong to all members. They adopted a philosophy of “if we build it, they will come”. That seems to have worked, as

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they have been joined by two new members, well known criminal lawyer, Annabel Markham, and Arla Kerr from Whangarei who is experienced in civil and regulatory dispute resolution in New Zealand and London.

Annabel says that the chambers is such a great initiative, and so timely with many lawyers reassessing ways of working after COVID. To have the support and solidarity of like-minded women without the overheads of traditional chambers is the best of both worlds for her.

Having Arla join Kate Sheppard Chambers was significant. From the beginning, Charlotte and Izzie had decided that a virtual chambers should not be restricted to a particular location. Although they and Annabel are in Wellington, there was no reason why they could not have members from anywhere in New Zealand. After all, not being physically tied to a location or office was the foundation of the chambers. They would love to have women from outside the main centres join them and benefit from the kaupapa and support of the chambers.

What happens if someone tries the chambers and wants to move on? “We want Kate Sheppard Chambers to be a haven, but if someone wants to leave after a year and move on to physical chambers, well we think that is marvellous,” says Charlotte. “We will not be offended. We will say how fabulous for you and we hope it is amazing.”

For both barristers, a central concept for the chambers is about passing the baton. They do not want to sit back and nurture their successful careers without passing on their experience and support to others.

That tied in with their choice of Kate Sheppard in their name. Traditionally chambers are named after a place or leading legal figure (mostly male for obvious reasons). They felt that in a way Kate Sheppard is a place because the Crown Law Offices where Izzie and Charlotte’s careers were nurtured, are located between Aitken St and Kate Sheppard Place.

However, Kate is also the figurehead of the women’s suffrage movement, and this was a way of honouring her. They feel that in a small but significant way, they are picking up Kate’s baton and remembering the importance of every person doing their bit. They are following Kate Sheppard’s philosophy, as she once said: “We must be ourselves at all risks.” * Kate Sheppard Chambers website will be available in early May 2021 at https://katesheppardchambers.co.nz/.

If you want to know more, please contact Charlotte Griffin at charlotte.griffin@ kschambers.co.nz or Isabella Clarke at isabella. clarke@kschambers.co.nz

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Can There Be “Primary Mana Whenua” in Respect of Resource Consent Participation Under the Auckland Unitary Plan?

By Setareh Stienstra

Setareh Stienstra, from Public Law Chambers, considers the High Court decision in Ngāti Maru Trust v Ngāti Whātua Ōrākei Whaia Maia Ltd [2020] NZHC 2768.

This article was first published in the Resource Management Law Journal, Nov 2020. It is reprinted with permission.

This decision of the High Court (Whata J) relates to an appeal on declaratory proceedings fled by Ngāti Maru Trust, Te Ākita o Waiohua Waka Taua Inc Soc and Te Patukirikiri Trust. The proceedings asked the Court to consider jurisdiction of the Environment Court in the determination of primary mana whenua status. The appellants represent tribes with customary interests across Tāmaki Makaurau.

and non-determinative as to the issues of primacy of customary authority.

It is important to note that all Mana Whenua tribes participating in the appeals before the High Court are parties to the Tāmaki Makaurau Collective Deed of Settlement between the Crown and Nga Mana Whenua o Tāmaki Makaurau dated 5 December 2012.

The Environment Court was asked to answer the following question (the Agreed Question) (at [1]): Does the Environment Court have jurisdiction to determine whether any tribe holds primary mana whenua over an area the subject of a resource consent application:

The issue arose out of a resource consent obtained by Panuku Development Auckland (Panuku) in respect of Westhaven Marina and mooring infrastructure at Queens Wharf in the coastal marine area (the resource consents).

The respondent, Ngāti Whātua Ōrākei, claimed to hold what the Court referred to as “primary mana whenua” (customary authority) over the land that is subject to the resource consents.

Ngāti Whātua Ōrākei appealed the conditions of resource consent. The consent conditions under appeal require Panuku to invite all 19 iwi authorities to establish a forum and prepare a Kaitiaki Engagement Plan, with the assistance of the forum, to “assist Mana Whenua to express tikanga, fulfill their role as kaitiaki, and establish the engagement process before, during, and after the completion of construction activities". Ngāti Whātua Ōrākei also applied for declarations that the Environment Court has jurisdiction to determine which iwi holds primary mana whenua, where relevant, to the wording of the resource consent conditions, and that “mana whenua” in the Auckland Unitary Plan (the AUP) is neutral

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(a) generally; or (b) where relevant to claimed cultural effects of the application and the wording of resource consent conditions.

The Court answered “no” to part (a) of the Agreed Question. The Court declined to answer part (b) of the Agreed Question and instead "reframed" the question (the Reframed Question), namely (at [2]):

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When addressing the s6(e) RMA [Resource Management Act 1991] requirement to recognise and provide for the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu and other taonga, does a consent authority including the Environment Court have jurisdiction to determine the relative strengths of the hapu iwi relationships in an area affected by a proposal, where relevant to claimed cultural effects of the application and wording of the resource consent conditions.

The Environment Court found that the RMA does not invite decision-makers to identify “primacy” of mana whenua. The Environment Court also found the Agreed Question was misdirected and that the Court’s inquiry should not be into primacy of mana whenua because it does not reflect the potential for there to be many layers of differing interests among many parties. The Environment Court found that the question had to be reframed and answered the reframed question as follows (at [25]): [T]he AUP is relatively silent on the mana whenua and related cultural matters referred by the appellant, in the sense as just held that they are non-determinative about overlapping or competing interests. We hold therefore that it is appropriate, indeed necessary, to resort to the provisions of Part 2 that we have listed in this decision. That said, we reiterate that while it is possible to conclude that a decision-maker might be required to consider evidence about multiple interests of multiple parties in any given place, we do not see any clear directive or encouragement in the Act to identify "primacy" in the sense of a general pre-eminence or dominance as argued on behalf of Ngāti Whātua.

The decision provides a thorough review of the statutory context and the role of mana whenua.

The decision usefully traverses the legislative and planning context in Auckland, particularly in relation to the AUP, before addressing the specific questions and providing reasons (see [67]-[69] and [73]).

The High Court held that the Environment Court was entitled to reframe the question with regard to part (b), but that it erred in not inviting submissions on the reframed question. This caused unfairness.

Having heard submissions, the High Court determined that jurisdiction to declare and affirm tikanga-based rights rested with the High Court and the Māori Land Court, not the Environment Court. However, the decision notes that consent authorities (including the Environment Court) may make evidential findings about tikangabased rights, powers and/or authority insofar as it is relevant to discharge obligations under the RMA to Māori.

The High Court refused to answer part (b) of the Agreed Question. The view expressed in relation to the "primacy" issues (see [103]) was that: As the Waitangi Tribunal made clear in The Tāmaki Makaurau Settlement Process Report, the concept of primary mana whenua is highly controversial, and a preliminary question

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concerning jurisdiction based on it is illconceived or, as the Environment Court found, "misdirected". What that concept means in tikanga Māori or in State law is not settled and so provides an uncertain reference point for a preliminary question about jurisdiction.

His Honour went on to highlight the difficulty in applying concepts from the British legal model, such as “primacy” and "exclusivity" (see [107][111]), concluding that: "the transferability and applicability of Pakeha jural concepts such as "jurisdiction" and "primacy" to "mana whenua" still needs to be worked out at the finer grain, in light of the applicable tikanga Ngāti Whātua Ōrākei and to the extent that there are other iwi [that] are affected, the applicable tikanga of those iwi, before the recalibrated preliminary question can be meaningfully answered".

The obligation expressly set out in the RMA is “among other things, [to] recognise and provide for the relationship of Māori and their culture and traditions with their taonga” (at [108]). This requires that the decision-maker look at evidence and assess that evidence in accordance with tikanga Māori. There is no blanket way of determining who has “primary” mana whenua.

In light of these findings, the High Court concluded as follows (at [133], emphasis added): I am satisfied that when addressing the s 6(e) RMA requirement to recognise and provide for the relationship of Māori and their culture and traditions with their ancestral lands, water, sites, wāhi tapu and other taonga, a consent authority, including the Environment Court, does have jurisdiction to determine the relative strengths of the hapŪ iwi relationships in an area affected by a proposal, where relevant to claimed cultural effects of the application and wording of the resource consent conditions. But any assessment of this kind will be predicated on the asserted relationship being clearly grounded in and defined in accordance with tikanga Māori and mātauranga Māori and that any claim based on it is equally clearly directed to the discharge of the statutory obligations to Māori and to a precise resource management outcome.

No doubt applicants, councils and other decisionmakers will have to think carefully about the decision-makers' obligations under s 6(e) of the RMA and how to meaningfully consult to ensure the obligations are discharged in accordance with tikanga Māori and mātauranga Māori.

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Electronic Casebooks and Access to Justice: Are We All on the Same Page?

By Mark Robertson*

When I hear the utterance of the words “electronic casebook”, I also hear many counsel (and perhaps out of earshot - members of the judiciary) swear – but not in the form of an affidavit. For many, the fear of use of technology in a trial; the loss of a sense of familiarity of the way things have always been done; and a fear of “technical difficulties” that might arise is enough to drive some practitioners towards doing things the “old fashioned” way. To some extent that is justified, but it may come at considerable cost to the parties who seek justice from the Courts.

Granted, there are certain advantages in having documents in folders in paper form. Reading paper documents can be easier on the eye; there is some form of security in being able to physically cling to a document while under fire; or to nonchalantly turn the pages of some incomprehensible document, while frantically trying to think of what to say next.

There are cases in which use of paper to a greater or lesser degree is appropriate, however, in a case where there are many witnesses and sometimes hundreds or thousands of documents and pages of material that will be referred to (or not), there are major disadvantages in using a hard copy paper file.

One of the most important things in a trial (particularly civil trials) is to ensure that counsel, the witness giving evidence, and the judge are all looking at the same page. If that does not occur, critical points of evidence and argument may be completely lost on everybody.

An enormous amount of trial time can be used up trying to make sure everybody is on the same page.

Advantages of electronic casebooks Take the scenario where there are 20 or so folders of hard copy material, each containing 250 pages (the printing of which in multiple copies costs many thousands of dollars). Counsel is in the flow of cross examination. At some point, an inconsistent statement arises. Counsel asks the witness to confirm their evidence and then asks the witness (many of whom are not familiar with appearing in Court), “Can you please go to page 303.0743, in folder 3?”

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The witness must turn around or to one side and rummage through multiple boxes of documents to find the appropriate folder (in some courts there are no shelves – just an old witness dock, perhaps built from Kauri during the times when hangings occurred). The previous witness did not put that folder back in the right place. The witness says, “I cannot find that folder”, the Registrar jumps to assist. Eventually, the witness says, “I’ve got it!” and the judge at some stage chimes in and says, “Yes, I have that now”. Witness says, “Sorry, what was the question?" Counsel says, “I’m sorry I meant folder 4, page 304.0743..."

Hearing dates are scarce and trial time is limited.

Trials are also expensive. Every extra day of a trial adds significant cost for the parties. It is of great importance that trials are completed within the allocated time and that cases are heard within a reasonable time from filing of proceedings. Trials that overrun cause many problems (forgetting being one), particularly if further hearing time cannot be found within the next six months. And delays in getting a matter heard and resolved may cause considerable injustice to the parties.

As many will be aware, various courts in New Zealand have published electronic casebook protocols and practice notes that must be complied with. If prepared correctly in accordance with the courts’ electronic protocols, and with the appropriate hardware available in Courts, an electronic casebook allows a document to appear almost instantly and simultaneously on a screen in front of the witness, the judge and counsel.

This enables a trial and to flow and can drastically reduce the total amount of hearing time required.

Another major advantage is that a properly prepared electronic casebook enables documents to be text searchable, which can greatly assist counsel in locating documents when preparing for trial, drafting submissions, or during a hearing when time to locate a particular document and to deal with issues as they arise becomes critical. It is not an unfamiliar experience for counsel to think, “I know there is a document that says X somewhere,” in response to a particular point, and then frantically ask learned junior counsel to find that needle in the haystack (the expectation usually being “now”).

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Further, an electronic casebook takes up no space in often cramped chambers, is easily transportable and can be accessed from any location that has the internet if desired. The ability to hyperlink submissions to particular documents is likely to be extremely helpful to the judge when it comes to writing his or her judgment in that it enables the judge to readily go to a document that is being referred to without wearily getting up from his or her already cluttered desk to retrieve folder number 34.

Barriers to use of electronic casebooks in New Zealand Courts Despite the clear advantages utilising electronic casebooks, there are several barriers that make the use of electronic casebooks difficult in New Zealand.

Entrenched practice First, if an electronic casebook is to be useful in a trial the parties and the judge must be comfortable with and agree to its use. In particular, if the judge insists on being taken to hard copies of documents, all the work put into an electronic casebook and the time savings that can be achieved through its use will be lost. If the bundle is prepared correctly and the hyperlinks in it reference the correct document then, for the user, it should be only a matter of clicking on the relevant link. In my view, counsel that are willing to try and master presenting a case from an electronic casebook are likely to be at an advantage over those who do not do so.

Technical challenges Second, putting together an electronic casebook in accordance with the electronic protocol and making sure that it works is not a straightforward task unless one has a relatively high level of technical IT knowledge (it is not the intention of this article to delve into what those technical challenges are). Ensuring the casebook is maintained throughout the trial as “supplementary documents” become relevant is quite an exercise with a number of challenges but perhaps not as administratively burdensome as updating multiple copies of a hard copy casebook.

In large commercial trials in our main court centres, the parties will often be represented by large commercial law firms that have access to numerous junior solicitors, large IT teams and expensive software that helps to facilitate the process of getting numerous documents in disparate forms (for example, emails, attachments to emails, PDFs, Excel Spreadsheets, Word documents, paper documents etc) into some

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semblance of date order in PDF format, which ultimately must be paginated and assigned a file name that exactly matches the page number in the bundle.

However, such resources that are available to a large commercial law firm are often not available to the vast number of practitioners in smaller firms around New Zealand, and may not be affordable to the clients that they often represent.

In a recent matter in which I was involved as junior counsel in a regional High Court, the matter had a long backstory and several rounds of litigation in different forums. Each round of litigation had a separate discovery process and there were documents all over the place in various formats with various numbers and identifiers assigned to them. The instructing solicitor was a small firm and insofar as this case went consisted of the instructing solicitor and some help from his sole legal secretary. In other words, there were none of the small armies of junior solicitors or IT and other resources available that would be available to larger firms to deal with a case involving over 10,000 pages of material. Nevertheless, with a very small team of three lawyers with some technical know-how and co-operation between counsel and solicitors for the parties, the trial was efficiently run within the allocated 10 day timeframe.

Outsourcing While some of the technical IT tasks, such as converting emails to PDFs at the initial discovery stages, can be outsourced to third party service providers (at significant cost), a common bundle in my experience is rarely a static thing that is happily tidy and complete before a trial begins.

In the real world it is something that continuously evolves for several months before and during trial as counsel learn the evidence, further discovery occurs, and attempts are made to deal with the issues that arise as the trial progresses.

If an electronic casebook is to be used, there is a real need for at least one of the counsel involved in a trial to have the IT knowledge and skill to be able to deal with the task of organising and managing the documents with a high degree of particularity and care, preferably from the discovery stage through to the end of trial and to assist with resolving any technical issues that may arise. While it is a matter for agreement as between counsel and client, junior counsel maybe: that aligns with what a third party provider might charge.

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Counsel with these skills do however add value over and above what a third party provider might be able to achieve. It cannot be expected that (probably non-legally trained) third party service providers who are not familiar with court process or practice or the legal issues in the case will know what the relevance of the documents are to any issue. Such providers cannot be immediately available to solicitors and lead counsel to deal with issues that arise in the case or add documents where necessary to the bundle as their relevance becomes known. This is so particularly late at night during a trial if learned senior counsel determines that there is a critical point that must be addressed the following morning.

Further, there is a real issue of control of what admissible evidence goes into and what evidence stays out of a casebook, which can be the subject of intense argument between the parties. Such control can easily be lost if the administration of the bundle is outsourced. Equally importantly, the lawyers for the parties ought to take a pragmatic and sensible approach to reach agreement as to how documents over which there is no dispute are to be identified and added to the common bundle and by whom.

The fact that a common bundle evolves creates a further challenge in that the judge will have his or her own copy of the common bundle that may or may not be marked up, and which must be updated. As the system works at present, the High Court Registry will not accept documents provided by “cloud” services such as a link to a folder on Dropbox and USB’s must be handed up to the Registrar, who then must work out how to incorporate that into the judge’s copy of the bundle without overwriting carefully written notes or highlights. It can also be difficult to know exactly what the judge has or has not been given due to the passing of documents through several hands. Implementation of a well thought out service that enables documents to be directly uploaded to the Court, and that tracks which files have been added so that any new documents are easily available and identifiable to the judge without having to pass through various hands would certainly assist with this process.

In the above circumstances, (often junior) counsel who are across the issues with a combination of legal and IT knowledge can become an invaluable resource, add significant value for the client, assist the judge and ensure that the trial is able to run efficiently and to be completed within the allocated time.

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Hardware in some courts A fact of life is that many (regional) courts in New Zealand are not designed for or have the necessary hardware to run a commercial trial in which there are a large number of documents, let alone in electronic form.

The Ministry of Justice does offer a service known as “Clickshare”, which enables a device to be plugged into a laptop from which the casebook can be navigated and displayed on a screen in the court. However, in my recent experience the screen that was available in court was one large television screen on a trolley in one corner of the courthouse, barely able to be read by anyone. In another, the television screen was located behind the witness requiring the witness to turn a full 180 degrees from the examiner to see what was on it.

In a recent trial in which I was involved, I had to seek out a store on the Saturday before trial (fortunately, after much searching, there was a shop that sold what was needed in this town) and personally buy the missing hardware required, and to lend my own second computer screen to the court for use by the witness, while another screen was commandeered from one of the court staff’s desks, who reluctantly relinquished possession, for use by the judge.

The above state of affairs is entirely unacceptable in 2021. The basic hardware required to enable a courtroom to effectively use an electronic casebook is not complicated or particularly expensive. It requires a laptop connected to three (or more if desired) computer screens - at least one for the witness, one for the judge and one for the other people in Court; and a desk (you may be surprised, but some witness boxes lack such a technically advanced piece of equipment as a desk) to put the screen on. Laptop aside (which most lawyers will already have), I estimate the total cost to the Ministry of Justice per court for the necessary hardware (including a desk) to be about $1,000 but that is for others (probably accountants) to determine. As pointed out above, that sum is a pitiful amount in comparison to the saving in counsel and judicial time that the use of a carefully prepared electronic casebook can facilitate, and which would be passed on as significant savings for the parties. * Mark Robertson practices as a commercial barrister in New South Wales and New Zealand, as well as having been admitted as a solicitor in England and Wales. He appears in mediations and arbitrations and has significant experience in international arbitration.

Mark can be contacted at mark@markrobertsonlaw. co.nz. http://www.8wentworth.com.au/barrister/marka-robertson/

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Automation: Saving Time and Money for the Legal Sector?

by Kumi Sharma

The legal sector now operates in an environment where it is common to be challenged on fees, speed of service, and quality of service. The influence of the COVID-19 pandemic continues in 2021, affecting operating strategies and the ways lawyers work with clients, across the globe.

Many organisations extended their “work from home” plans as employees adopted a new normal in working remotely. These factors have increased the adoption of advanced internet technologies and cloud collaboration tools in a traditional legal workplace.

The digital revolution has no doubt transformed the way we work and live, but it comes with its challenges. A report from the United Nations International Labour Organization found that while spatial independence has made employees more productive and they enjoy a better work-life balance, it also makes them more susceptible to overwork, leading to IT burnout and technical frustration.

To overcome these challenges, many organisations are compelled to now re-evaluate the tools and systems they use and determine if they are equipped to keep their employees productive and connected over longer term. Most legal firms are increasingly investing in automation and technology platform integrations that can help with reducing employee fatigue by decreasing the volume of manual and mundane tasks a lawyer must perform in a day.

Automation is the process by which tasks, processes, or procedures are performed with minimal human assistance. For many years technology has enabled automation, changing how we live and work, and there are no signs this movement is slowing down.

The legal sector is one of many where automation is set to dramatically change how work is done.

Global research giant, McKinsey Global Institute believes 23% of work done by lawyers can be automated, improving efficiency and reliability, while reducing costs, errors and time.

There are now many artificial intelligence (AI) based software solutions available to scan documents, streamline communications, and find relevant casework for lawyers. Some forwardthinking law firms are also making use of the large volumes of contract information and data that law firms create, by using advanced analytics to create value for their respective businesses.

This software may lead to highly skilled roles that

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involve automation of repetitive processes by smart and self-learning algorithms.

Most automation in the legal industry occurs in organising and searching through legal documents similar to a search engine, but with far more precision, power, insight and analysis than has been seen before. Other areas where automation is making the business of law easier include accounting, client onboarding, HR processes, generating new business leads, and more.

For example, automating drafting of legal documents can prevent errors, increase efficiency, and save thousands of hours per year, while providing a more positive experience for clients.

Approvals, assignments, requests, signatures, and claims previously handled on paper can now be done digitally through this work process.

How does New Zealand prepare for the future?

New Zealand has a healthy legal tech industry, but it is critical that New Zealand legal establishments understand the opportunities available to them from technology, and which their competitors are likely already leveraging to be quicker, more accurate and more cost-effective than they are.

A large part of this is researching which of the solutions available globally and locally are applicable. Many solutions solve challenges the firm didn’t know they had, and so are often overlooked. A mindset focused on innovation and openness to change is required. Adoption of such technologies in New Zealand has only taken off in the past few years, as law firms outside the large international players realise that they must adapt to survive – ignore at your peril.

Lastly and most importantly, legal establishments in New Zealand must make radical changes to the way they attract, develop and retain new talent, including assessing the profile of future ‘millennial’ employees, who are likely to be familiar with this way of working and actively encourage it.

Having a clear strategy for dealing with changes in client demands, technological innovations, the regulatory landscape and the accompanying policy developments would be of huge benefit to law firms striving to remain competitive.

Companywide policy and buy-in from team members will do wonders to ensure that changes implemented are followed and embraced.

The future is here. It’s different. Let’s embrace it and move forward.

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Jonathan Temm QC 16 June 1962 – 3 March 2021

Kua hinga te kauri o te wao nui a Tane - The kauri has fallen in the sacred forest of Tane The profession and the Bar lost one of its giants with the passing of Jonathan Temm QC. Members of the profession, and his PA for the last 25 years, Barbara Neale, share some memories with us.

You cannot go wrong working for a barrister whose chambers, as luck would have it, are located across the road from an Irish bar. Barbara Neale certainly discovered that after years of working with Jonathan Temm QC. It was a job that she would find endlessly fascinating.

He was innately kind. His father, Hon. Justice Paul Temm (also a QC), had told him it gets very lonely on circuit and restaurant food loses its appeal pretty quickly. Jonathan Temm would therefore invite visiting judges home for dinner, where they would experience the Temm household. “It was a joy to be a part of,” says Barbara, “sitting quietly at the table as a constant stream of humanity and casually tossed barbs fly between children and parents with obvious humour and love. It was like being at a train station with people coming and going.

You just sat back and enjoyed being part of the atmosphere. No five-star meal could ever compare.”

Jonathan passed away on 3 March 2021 at his home, surrounded by his whānau. While his death came much too soon, it was fitting that at the end he was with the people who mattered the most to him. His wife, Lynelle,1 in a recent interview, described him as having a great ability to be present as a husband and a father. His family provided the balance he needed when faced by the relentless nature of trials, often involving tragedy, and on occasion, simply horrific.

But before we get to his professional attributes, here are some things that you may not know about Jonathan: Back in the day when nearly everyone smoked, he had a talent for rolling cigarettes one handed (learned while driving removal trucks around Australia). “In a way, that sums him up pretty well. He needed to find a way to make things happen and so he just worked at it until he found a result that worked.” He gave up smoking many years ago and the last time he was asked to demonstrate that talent, it was a complete but hilarious disaster.

Jonathan was offered QC rank at the end of his term as NZLS President. He declined it at that time, saying instead that he wanted to see more of his provincial colleagues being recognised for their efforts. There was a bit of incredulity in the office over that stance, but once he explained his reasoning, it was hard to argue against.

He was known to practice his closing addresses on the local trout, according to Lynelle. Some of them must have been persuaded as Jonathan usually returned home with two or three fish.

1,2

He was a practical joker, and once fitted all of someone’s office into the elevator (apparently his packing skills were legendary).

Of course, some details are much more well known. Jonathan was a man who spoke truth to power. A partner at a firm he worked for frequently dressed down his secretary publicly. One day, Jonathan walked into the partner's office, closed the door, and spoke his piece. Whatever that piece was, the dressing downs ceased.2 People have observed that Jonathan hated injustice, but it is probably as true to say he had a passion for justice. District Court Judge Marie Mackenzie said “He was passionate about advocacy, the law and doing justice for all in the community, including the vulnerable and disadvantaged. Mr Temm QC always strived to achieve justice for all.

He advanced cases in a firm but fair way.”

Persistence was another strength – as demonstrated by relentless applications for Law School, NZLS/WBOP President or (for that matter), applications for QC, he persisted. From the outside, it might look like an inherited and charmed legal family life, but the reality was an uncompromising will to succeed.

In among that hard work was the requisite humour needed to deal with prosecution and criminal defence. Sometimes this resulted in a need

https://www.stuff.co.nz/national/124530407/jonathan-temm-qc-a-man-who-hated-injustice

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to break out and practice his golf swing at the end of the open-plan office space, the little practice ball floating up into the sky and landing on a secretary’s desk. “He was also known for stealthy rubber-band fights,” Barbara recalls, “his head popping up over partitions to quickly fire off a shot, before scuttling away. And using his Court voice on unsuspecting staff from other areas of the law firm, which would usually cause them some alarm.”

Of course, given the serious trials in which Jonathan appeared, it was certainly a long way from being fun all the time. “We had death threats during some of the worst trials. You knew it was pointless to respond, even if you could. They all came from ‘non-traceable’ sources because that is the nature of those sorts of things - brave in anonymity,” Barbara remembers. “The real bravery is standing up in Court, ensuring that the justice system functioned as it should. People underestimate the toll that takes, appearing in the face of sometimes overwhelming public resentment.”

With all of the pressure and insanity that comes to those at the defence bar, Jonathan had to learn to step away. He would retreat to nearby beaches, into the forests surrounding Rotorua (a city he loved since moving there with Lynelle in 1995) or, in later years, he would disappear down to his boat in Taupo.

In 2019, after several applications, Jonathan’s excellence was recognised with the conferment of QC status. He rang Barbara while she was on holiday in Thailand and they both shed a tear; “He was feeling close to his father and I was feeling proud that he was finally being recognised. He had worked so hard for that for so many years.”

The respect with which Jonathan was regarded throughout the profession was evident when he was called to the inner bar. Members of the profession, friends and associates travelled to Rotorua for the ceremony from all over the country, so many that a second courtroom was needed to accommodate them, with a video connection between them. Bar Association President, Paul Radich QC, describes the ceremony, “It was a truly moving event, punctuated with mihi and waiata.

Jonathan was ill at the time and most people did not get to speak to him but the warmth and good will in the room was palpable. Jonathan wanted people to have an event to go to afterwards, even though he could not attend himself, and so a function was organised at the Pig & Whistle (a venue associated with many practitioners at the Rotorua court) at which scores of lawyers and friends celebrated and recounted his achievements.”

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At the ceremony, the Chief Justice Dame Helen Winkelmann noted that Jonathan had told her that his call reflected the strength of the local bar and promptly went on to suggest others who he felt were deserving of the rank! It reflects how much he thought about those around him. Dame Helen said that the rank of Queen’s Counsel is reserved for the strong, the upright, the learned and the brave, and the checklist of qualities for a Queen’s Counsel could have been written for Jonathan as a description of him as a lawyer.

The Chief Justice also identified certain beliefs or values that were part of Jonathan’s structure and life. They were, she said, part of his DNA. Since his early days as a practitioner, his behaviour was consistent with these values, demonstrating that this was not a matter of building a CV: 1. He had a passionate commitment to justice and his clients knew that they had the best advocate for their cause. He took on cases and gave them his all.

2. He was undoubtedly learned in the law and had been sought out for his ability to teach and mentor those who were coming through the profession.

3. Service to his profession was demonstrated by his support over the years for the Law Society including his presidency from 2010 to 2013. His leadership was brave, and he was thoughtful and articulate. He literally spoke truth to power including advocating for legal aid and representation in the Family Court.

4. His commitment to access to justice saw him acting often for the poor and the disadvantaged. He did more than his share of heavy lifting in this area. He saw this as part of his responsibility for his community and to listening to the voices of those who are not represented in our society.

5. Family was also constant. Jonathan came from a large family. He shared many of the qualities of his father including a commitment to justice. His father would have been proud of the man that he was. His mother was also highly accomplished, and her model of hard work and social justice contributed to Jonathan’s life values.

The Chief Justice ended by saying that Jonathan Temm QC was learned, brave, and strong.

Jonathan Temm QC made a difference.

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Child Support and Penalties – What the 2021 Changes Mean

By Nashi Ali*

The child support regime affects approximately 135,000 carers, 166,000 liable parents, and 185,000 qualifying children. In 2019 it was reported that there was $2.2 billion in child support debt. A crippling $1.6 billion of this debt consisted of compounded penalties, which meant only $558 million was unpaid child support.

Penalties on late payments have been an area of contention for many years. A recent report by Inland Revenue demonstrated that many parents were unable to understand the penalty rules. The report also highlighted that liable parents felt the penalties increased their outstanding child support debts to an unmanageable amount, resulting in them no longer being motivated to repay their debt or meet their ongoing child support obligations.

Changes made by the Child Support Amendment Act 2021 simplify the child support penalties regime and encourage liable parents to meet their obligations. The changes take effect in two stages. The first stage was implemented on 1 April 2021, which made changes to the way in which penalties are imposed and written off.

In Commissioner of Inland Revenue v Horsey, Mr Horsey sought to have his child support liability reduced by the Court. Mr Horsey owed Inland Revenue in excess of $140,000 in child support arrears and penalties. Mr Horsey had made no payments since the date of assessment. While Mr Horsey’s child support obligations totaled just over $46,000, penalties charged reached a staggering $94,222. Mr Horsey submitted that he found the child support process distressing and felt victimised by Inland Revenue’s attempts to seek payment. The Family Court directed Mr Horsey to pay $500 per month towards his child support arrears, noting that Inland Revenue had the discretion to waive the penalties accrued if the child support assessed was paid in full.

The second stage takes effect from 1 April 2022, introducing timeframes for parents to establish paternity and advise Inland Revenue of their existing childcare arrangements. The kinds of income that are considered when child support is calculated will also be changed, and paying of child support through mandatory automatic employer deductions will be introduced for parents who are new to paying child support.

The consequence of compounding penalties Historically, if liable parents did not meet their child support obligations, they were charged initial and incremental penalties. Initial penalties charged in the first month were done so in two stages. The first stage was the greater of 2% of the outstanding amount, or $5 the day after the due date. The second stage was the addition of a further 8% of the outstanding amount eight days after the due date.

If the initial penalties were not paid, incremental penalties were added to the outstanding balance, each month the amount remained outstanding. The incremental penalties were 2% of the outstanding amount, including penalties, from one month after the due date for the next 12 months and 1% of the outstanding amount including penalties each month from 13 months after the due date.

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Commissioner of Inland Revenue v Horsey [2019] NZFC 2925

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Examples of significant penalty debt are seen in Commissioner of Inland Revenue v Horsey1, and Inland Revenue Department v Codling2.

In Inland Revenue Department v Codling, Mr Codling was required to pay child support for three children from 1992. In 1999, Inland Revenue commenced proceedings against Mr Codling for his outstanding child support debt and penalties. Mr Codling was summoned for an oral examination, and a warrant for his arrest was issued, but he could not be located. Subsequently, Inland Revenue applied for a charging order over a property owned by Mr Codling, which was sold at auction in 2003.

In December 2003, Mr Codling received a letter from Inland Revenue regarding the outstanding child support debt and penalties which equated to $249,879. Mr Codling had been involved in a serious car accident, resulting in significant longterm physical and psychological implications.

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Inland Revenue Department v Codling [2009] NZFLR 19

He successfully sought an order suspending his liability to pay child support, with an agreement that the net proceeds of the sale of his home be held in trust pending further order of the court. Mr Codling requested further examination by Inland Revenue which was declined.

By 2008, the child support assessed had been paid, but Mr Codling owed $102,318 in child support penalties. Mr Codling was unsuccessful in his application to Inland Revenue to have the penalties written off and applied to the Family Court for a review of that decision. The court held that Mr Codling had already suffered a significant consequence by having his house sold for an amount far less than its market value and imposing such a hefty penalty would amount to double jeopardy. The court ordered that all costs and child support penalties be waived, aside from the reasonable reimbursement of Inland Revenue’s legal costs for enforcement proceedings.

How have the penalties changed post 1 April 2021?

Incremental penalties have been removed and will no longer be charged. Liable parents will only be charged an initial penalty of 2% of the amount of financial support unpaid at the expiry of the due date.

What does this mean for parents already paying child support?

From 1 April 2021, liable parents will not be charged any further incremental penalties on their existing unpaid child support debts. While incremental penalties imposed before 1 April 2021 will not automatically be removed, liable parents who satisfy the criteria under the penalty write off rules may apply to Inland Revenue to have some or all of their pre 1 April 2021 penalties waived. In addition to the pre 1 April 2021 grounds on which liable parents could seek penalties to be written off, three new grounds have been introduced: a) the parent is experiencing severe hardship; b) it is not a good use of Inland Revenue’s resources to collect the penalty; and c) Inland Revenue is satisfied that it would be fair and reasonable to write off part or all of the pre 1 April 2021 penalties.

How will payment of child support change from 1 April 2022?

Under the previous law, parents who were new to the child support regime were able to choose to make payments in a manner that was acceptable to Inland Revenue. Only liable parents receiving a benefit or were in default of their obligations

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were required to pay child support through automatic deduction.

After 1 April 2022, liable parents who are salary and wage earners or contractors who receive schedular payments, and are new to the child support regime, will have child support payments made by mandatory automatic deduction unless: a) they are already paying child support by another payment method and are not in default of their obligations; or b) if Inland Revenue considers payment by automatic deduction inappropriate in their circumstances and accepts another payment method.

In addition, parents who are new to paying child support are provided with a grace period of 60 days before the initial penalty is imposed.

Tax losses and investment income post 1 April 2022 Child support payments calculated prior to 1 April 2022 are based on taxable income as defined by the Child Support Act 1991. From 1 April 2022, taxable income will be replaced with income.

Under the previous law, if a liable parent suffered tax losses in a previous year, the losses could be brought forward into the current income year, reducing their income and therefore the amount of child support that was due. From 1 April 2022, liable parents will no longer be able to carry such tax losses forward.

Another change means investment income will be taken into consideration when calculating a liable parent’s means to pay child support.

Conclusion From research conducted by Inland Revenue prior to the introduction of the new penalty regime, it was clear the overall feeling was that the payment framework needed to help participants navigate the child support process more easily. Both liable and receiving parents wanted the penalties to remain but expected leniency around the application of penalties, a grace period for those starting the child support process, and flexibility around the due date.

It will be interesting to see whether the changes brought about by this new legislation will achieve those aims. * Nashi Ali is an Associate Knowledge Manager with the New Zealand Dispute Resolution Centre’s Knowledge Management team. Nashi has worked across various law firms across Australia and is an experienced commercial litigation paralegal.

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Trusts and Alternative Dispute Resolution – The New Regime

By Maria Cole*

The creation of a statutory alternative to resolution of trust-related disputes is historic.

As many litigators know, prior to the Trust's Act 2019 (Act), it was often necessary to file proceedings in the High Court to achieve the binding resolution of disputes between trustees and beneficiaries, despite the parties wanting to resolve their disagreements privately. At the heart of the concern was whether the resolution of a trust dispute achieved privately would be enforceable.

In what has been described as a watershed event, the Act provides for private dispute resolution as a default mechanism for the resolution of “internal matters” (between trustees and/or beneficiaries) and “external matters” (between a trustee and a third party), where legal proceedings are foreshadowed in an express trust.

Surprisingly, this new dispute resolution regime has hardly featured in the articles and blogs that have been published about the new Act. Focus has been on the mandatory and default trustee duties, the exemption and indemnity clauses for trustees, and the requirements around disclosure of information to beneficiaries. The dispute resolution procedures have often merely been acknowledged but not remarked on. So, why are the changes significant and what is the relevance of this change for litigators and their clients?

Express provision for private dispute resolution Under the Act, private dispute resolution is referred to as an “ADR process” and defined as meaning “an alternative dispute resolution process (for example, mediation or arbitration) designed to facilitate resolution of a matter”. A “matter” is defined as a legal proceeding, or a dispute that could give rise to a legal proceeding, but excludes any legal proceeding or dispute about the validity of all or part of the trust (validity remains for determination by the High Court).

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At section 143 of the Act.

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The default provision1 stipulates that if there is no provision for private dispute resolution in the terms of a trust, a matter may be referred by a trustee to an ADR process with the agreement of each party to the matter. This statutory acknowledgement of the suitability of ADR to resolve trust disputes is long overdue. As the Law Commission stated in its review of the law of trusts, when considering dispute resolution outside of the courts and the benefits of ADR, when compared with a court hearing, these include lower costs, quicker resolution, achieving finality, maintaining confidentiality and privacy, and being less adversarial.2 Prior to the passing of the Act, parties were often hamstrung when they wanted to implement clauses in trust deeds which explicitly provided for private dispute resolution. As a consequence, they invariably ended up in the High Court, often with a public spotlight on their affairs.

One issue was the inability to obtain the consent of all parties to agree to engaging in the dispute resolution process or to be bound by the terms of any settlement. This was due to many beneficiaries of trusts being discretionary, unascertained, or lacking capacity, which meant their interests could not be considered or safeguarded. There was a further issue arising from the duty of trustees to actively consider the decisions they take as trustee and not fetter the future exercise of their discretions. The concern was where the terms of any settlement would require trustees to commit to a future course of action which may breach those duties. The Act expressly addresses these issues and has removed them as impediments for eligible disputes to be subject to an ADR process.

Considering and safeguarding beneficiaries’ interests Where an internal matter is subject to an ADR process and has “unascertained” beneficiaries, for example grandchildren not yet born, or beneficiaries who lack capacity, then the court must appoint representatives for them. The Act specially provides that representatives may agree to an ADR settlement, or agree to be bound by an arbitration agreement or any arbitral award under it, on behalf of the beneficiaries they represent3.

Law Commission|Te Aka Matua O Te Ture, Review of the Law of Trusts, August 2013, Wellington, Report 130, Chapter 14, page 197 at [14.2].

3 Section 144 of the Act. 2

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Future exercise of discretion The duty upon trustees not to bind or commit trustees to a future exercise of discretion remains, but there is a "carve-out"4. Now, for the purposes of an ADR settlement or arbitration agreement or any arbitral award under that agreement, a trustee may give binding undertakings in relation to their future actions as a trustee.

Consent of the parties to engage in an ADR process – is it always required?

The starting point when looking at the issue of consent is the terms of the trust deed.

For internal matters, the court has a discretionary power to enforce provisions in a trust that require a matter to go to ADR. It may also submit a matter to an ADR process, unless that would be contrary to the terms of the trust. The court can do this at the request of a trustee or a beneficiary, or on its own motion5. This means the consent of all parties is not necessary for an ADR process to occur in relation to an internal matter, if the terms of the trust provide for private dispute resolution.

For external matters, if the terms of the trust require or empower a trustee to refer a matter to an ADR process, the trust’s terms hold sway. However, if the trust deed is silent on this issue, the default provision is that a trustee may refer a matter to an ADR process if all parties consent to it6.

Specified commercial trusts The Act goes beyond family and testamentary trusts. It also governs “specified commercial trusts”, which include qualifying commercial trusts, wholesale investment trusts and security trusts.

Commercial parties who set up a trust in New Zealand will have access to the ADR provisions under the Act and the New Zealand Arbitration Act 1996. This will enable disputes to be settled confidentially and promptly. This is a significant benefit, given the commercially sensitive nature of many business endeavours. If parties agree to arbitrate in the first instance, the threat of arbitration will often drive parties to negotiate a settlement. If the arbitration process is in train and a negotiated settlement is reached, it can be recorded as an arbitral award on agreed terms.

Where commercial trusts are contracting with third parties, consideration should be given to ensuring such contracts include ADR provisions, stipulating the applicable law is that of New Zealand. This country is recognised as a safe and neutral jurisdiction and is a signatory to the New York Convention. Accordingly, any arbitral award made Section 146 of the Act. Section 145 of the Act. 6 Section 143 of the Act. 4 5

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in New Zealand can be enforced either domestically or in most international jurisdictions.7 A proportionate response as a starting point At a time when it can be difficult to get parties to agree to anything, having a workable dispute resolution clause in a trust deed is essential.

Inadequately drafted clauses often result in parties who are already at loggerheads, trying to agree on who the arbitrator or mediator will be, or procedural rules and timetabling. Where the clauses are too detailed or prescriptive, they can often become unenforceable. Multi-tiered clauses, which require mediation or negotiation as a pre-condition to arbitration, may also be problematic for achieving a binding and enforceable result. This is because under the Arbitration Act, for there to be an arbitral award, there must be a live dispute. If settlement has been reached before the matter has been referred to arbitration, any negotiated settlement cannot be recorded as an arbitral award or enforced as one.

The new provisions provide certainty The Trusts Act 2019 has addressed head-on the issues which were a road-block to the private resolution of trust disputes in New Zealand. It has confirmed unequivocally that ADR is an appropriate and viable option, enabling parties to air their often deeply personal grievances through a private forum of the parties’ choice.

Reiterating the Law Commission’s views, the benefits for all parties will be lower costs, a quicker resolution, achieving finality, maintaining confidentiality and privacy, and a less adversarial process.

Model trust deed clause for internal matters The New Zealand Dispute Resolution Centre (NZDRC) has drafted a model clause for internal matters which could be included by those who are looking to establish or update trust deeds: Any dispute or difference arising in relation to the trust between a trustee and one or more beneficiaries, or a trustee and one or more other trustees, but excluding any dispute about the validity of all or part of the trust, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the New Zealand Dispute Resolution Centre.

The NZDRC Arbitration Rules provide a framework and detailed provisions to ensure the efficient and cost-effective resolution of trust disputes and can be amended if required. *Maria Cole is a former civil litigation barrister who is employed with the New Zealand Disputes Resolution Centre in the Knowledge Management team.

The United National Convention on the Recognition and Enforcement of Foreign Arbitral Award (known as the New York Convention) currently has over 167 state party signatories.

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Personal Injury Litigation - a Long-Forgotten Area of Practice

By Sir Ian Barker*

April Fool’s Day 1974 was an important date in New Zealand’s social and legal history. For that was when the Accident Compensation (ACC) legislation came into existence, ushering in a new system of compensation for all accident victims without requiring proof of fault on another’s part for death or personal injury. A corollary was to forbid all actions in courts seeking damages for personal injury or the death of a family member.

Claims for any personal injury suffered as the result of negligence or some breaches of statutory duty on the part of another - whether individual or corporate, as well as for the financial loss to dependents incurred as a result of death caused by negligence, were all barred by the ACC legislation. Causes of action accruing prior to 1 April 1974 were allowed to run their course.

Consequently, it took some years before all preACC cases worked their way out of the court system.

Personal injury cases comprised the bulk of civil litigation in the then Supreme Court before ACC. Contract and tort claims as well as family protection claims featured predominantly in the remainder of causes litigated. No competition cases, no financial regulatory cases, no relationship property cases. Those species of litigation all were to appear in the years after 1974.

But lawyers are a resilient lot. The pragmatist might say that these later additions to the litigator’s quiver helped assuage the case-load diminution brought about by ACC, although, as with any new legislation, there were destined to be many

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arguments about the scope and interpretation of a novel statute.

A lot could be written about the genesis of ACC in the eponymous Woodhouse Report, an earlier report on Absolute Liability in Motor Accident Cases and the profession’s reaction to what many of its members saw as a measure which would decrease their income. That is not the purpose of this article and anybody interested in the profession’s views is referred to the report of a session at the 1969 Rotorua Law Conference in 1969 NZ Law Journal at pages 297-313.

Suffice to say that quite a few lawyers thought the proposals in the Woodhouse Report worthwhile whilst a sizeable section opposed and another echelon was indifferent. The scheme as proposed urged that cover be provided for permanent disabling illness but politicians have never as yet grasped that particular nettle. The argument that a drunk or a person “high” on cannabis, disabled in a motor accident where that person was wholly at fault, could receive accident compensation when an innocent law-abiding citizen who contracted some permanent disabling medical condition could not, has yet to be addressed by legislators. Sports injuries were covered by the scheme and, I believe, have cumulatively cost the ACC a lot of money over the years.

Nor shall I in this article record the iterations of political thinking which preceded the 1974 enactment nor the changes made over the years - particularly in the Muldoon era - to the

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legislation and to the entitlements provided in the founding statute which somewhat diminished initial promises. The Act was an international pioneer, as I discovered when asked in 1981 to deliver a paper at a conference of aviation lawyers in Tobago on NZ's bold and unusual scheme. As one might have expected, the audience of mainly American lawyers reacted with wonder and amazement and made confident assurances that such a scheme would never get off the ground in the Land of the Free, home of the gigantic awards for personal injuries and of contingency fees. (Well may you ask what was I doing in a conference of aviation lawyers in the Caribbean?

I had been invited because for some years before my appointment to the Bench, I had acted for London underwriters in respect of claims under the Warsaw Convention with an NZ connection, starting with the loss of a laden DC3 passenger aircraft in Samoa in 1970.)

What claims were there?

Injuries caused by motor vehicles were predominant, closely followed by claims by workers against their employers. A plaintiff whether a passenger in the negligent driver’s vehicle or someone in another vehicle or a pedestrian, cyclist or anyone else injured by a vehicle - could claim in the knowledge that the alleged negligent one was insured.

Every year when one registered a vehicle, the necessary form asked for an indication of which of a large list of insurers one nominated to insure those driving the vehicle against personal injury claims. In those days, there were a lot of insurers from which to select - many of them overseas based with local offices. The majority pooled the premiums received from registrants which meant that any claim against a nominated insurer would be administered by the Motor Vehicle Third Party Pool and not by the nominated insurer. A few insurers from the list on the registration form did not join the Pool and administered each claim themselves. The most notable of these were the NIMU and the SIMU which had connections with the Automobile Association and sold insurance for property damage for vehicles.

If a vehicle was uninsured under the above system or the alleged negligent motorist was unknown, then one had to sue "The Nominal Defendant".

This creature - begotten by the insurers and not by legislation - provided damages awarded against uninsured or unknown negligent drivers but within financial limits. One had to sue The Nominal Defendant under that name and not under the real

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name of “The State Insurance General Manager” who, under legislation constituting a governmentowned general insurer, was a Corporation Sole.

(As an aside: this is a form of corporate identity where a corporation with perpetual succession is one person whose identity changes from time to time but who administers property, real and personal, in the corporate name. Most, like the State Insurance and the Public Trustee, seem to have been abolished with privatisation. I believe the only ones on the current NZ legal landscape are the Roman Catholic Bishops, owning church properties in their individual dioceses under their private Act. Companies and incorporated societies are examples of the other sort of corporation- the corporation aggregate.)

The other fertile source of personal injury claims was the workplace. The Workers’ Compensation legislation made insurance for one’s workers compulsory. If a worker became injured at work (and there were lots of arguments about what that meant), she/he was entitled to a weekly payment and, if permanently suffering an injury set out in a schedule to the enabling statute, to a lump sum calculated on a percentage of a nominated amount. These entitlements were regardless of whether the worker had been to blame for the accident causing the injury or the injury arose out of the worker’s employment or was exacerbated by an existing condition. (Lots of room for argument especially for back injuries or if a worker was on a frolic of his/her own.)

The fruits of a workers’ compensation claim being not notably generous, many workers sued their employer for negligence and/or on the sometimes available ground of breach of statutory duty. The breach of most statutory regulations prescribing safe practice in various work situations qualified as a basis for a tortious cause of action. For example, regulations about wood-working machinery.

Other situations - notably occupiers’ liability where negligence or personal injury could be alleged - comprised the basis for the remainder of claims.

Claims based on negligence could also be brought by the estate or dependents of a person killed as a result of the alleged negligence under the Deaths by Accident Compensation Act 1952.

If the allegedly negligent person were deceased at the time proceedings were issued, then her/ his personal representatives could be sued.

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Limitation of Action The Limitation Act 1950 was a product of its time.

It was not as comprehensive or as sensible as its counterpart of today. I doubt whether it would have received, before enactment, the careful treatment and wide consultation that law reform statutes are given nowadays. It mandated that actions for personal injury damages had to be commenced within two years of the cause of action arising. If the claimant were under-age or suffered from a mental disability, the limitation period commenced when the claimant either became of age or ceased to be under a disability.

A claimant who was out of time under this legislation could apply to the Court for leave to file the claim. Not unexpectedly, lawyers for insurers usually opposed applications for leave which were fairly numerous: overlooking a limitation was an oft-experienced example of professional negligence. The court lists and the law reports had a steady diet of applications for leave to bring personal injury proceedings out of time. Results were varied with some judges taking a hard line.

But if you had a plausible excuse for the delay and the injury was serious, leave would usually be granted on terms as to costs and prompt filing.

It was easier to miss the limitation deadline if you were suing the Crown which was something that happened frequently since the Post Office, Railways and Forestry were manifestations of the Crown and not separate statutory bodies.

That deadline was only one year. Another pesky, bureaucratic requirement of the Crown Proceedings Act was that written notice of an impending claim had to be given to the relevant Crown Department about to be sued. Similar provisions to those just detailed enabled the Court to grant leave to bring proceedings out of time.

Components of claim For personal injury general damages claims, there were three usual components: a) pain and suffering; b) loss of amenities of life and c) loss of future earnings. For death claims, funeral expenses and the likely loss of future earnings by the deceased which would impact on the deceased’s dependents.

Arguments occurred where the claimant or the deceased had not enjoyed a very stable or remunerative employment record or the claimant’s injury was likely to improve and make working in the future more credible or the claim for pain and suffering was allegedly exaggerated

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or the claimant or the deceased suffered from or could in the future suffer from a debilitating medical condition completely unrelated to any injury caused by the accident. Back injuries then as now generated many arguments as to their cause.

Special damages were usually less controversial.

Loss of earnings, caused by the claimant’s inability to work because of the accident, was often the main item, along with hospital expenses. These were payable if the damages claim succeeded to the extent to which it succeeded. If the award were reduced by contributory negligence, the hospital special damages would be correspondingly reduced.

Experts Proving a plaintiff’s entitlement to general damages usually meant the provision of evidence of medical condition caused by the accident and a prognosis of likely future consequences. Medical specialists for both plaintiff and defendant were asked to examine the injured one and report to the solicitors commissioning the report. Orthopaedic surgeons were commonly called as medical experts because so many injuries were caused to limbs and backs. These reports provided the basis for settlement discussions on quantum of general damages. Orthopaedic injuries used to give rise to the major debates - particularly whether the injury was as bad as made out or whether and to what extent the injury would lead to an inability to work in the future.

Neurologists opined for neurological injuries and there was often room for argument in that area of medicine. Various other specialists such as ophthalmologists featured, but there was often less room for argument over the plaintiff’s condition.

Various specialist medical practitioners would often reflect their personalities by being optimistic or pessimistic over the extent of a claimant’s permanent disability. The optimists tended to have their opinions sought by defendants’ lawyers - the pessimists by plaintiffs’ lawyers. It was always difficult to get surgeons particularly to give evidence because of operating schedules.

When they did come, some were usually excellent presenters of difficult medical information to juries.

The engineering profession provided some experts where evidence was required of faulty machinery or less than optimal working systems

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from Plaintiffs’ experts or assurances that all had been well from Defendants’ experts.

the quantum of damages should negligence be found.

For calculations of future earnings, both for a living claimant and for a deceased person in a claim under the Deaths by Accident legislation) accountants were retained. As with other kinds of experts, two contradictory scenarios were often placed before a jury.

The legal folklore that juries produced a better result for plaintiffs than judge-alone trials was not necessarily true, as I discovered when, in the late 1960s, I was instructed on behalf of a young widow and her baby on a Deaths by Accident claim in the old Napier court before Tompkins, J (the elder) and a jury. Her late husband, whilst working on a remote farm at the end of a remote and tortuous rural Hawkes Bay road, was crushed by his tractor. He lay in a distressed condition until an ambulance arrived. As it was negotiating one of the bends on the precipitous road, the ambulance went off the road and hurtled down a steep bank. The patient was alive at the top but died on impact at the bottom.

Other experts could be called if required, such as psychiatrists, if a person’s mental health were in issue.

The quarterly fixtures scrum in Auckland saw personal injury jury trials given hearing dates in bulk with the expectation that most would settle which they did, often at the courtroom door. One tactical decision for counsel was whether to elect a jury or a judge-alone trial.

To get on the jury trial list, the praecipe to set down had to specify and be accompanied by the payment of one day’s jury fees. These were the modest amounts paid to each juror which had to be paid into court for every day of the trial. If one side requested a judge-alone trial, the other side could requisition a jury trial on giving an appropriate notice within a prescribed time.

These rules applied to every civil jury trial. Claims for defamation, false imprisonment and malicious prosecution were usual candidates for a jury.

Fortunately, current legislation places sensible limits on the right to a civil jury.

The received wisdom of the profession was that juries were better for claimants in personal injury cases. Juries were reputed to be more generous than judges and were more likely to find for a plaintiff in a case where liability might be hard to prove.

Payment into court of the amount of a defendant’s offer was a common defence tactic. The offer was usually pitched cunningly at a level below what the plaintiff hoped to receive, but at a level where it had to be taken seriously. If a lesser amount were recovered at trial, the plaintiff would be likely to pay all the party-and-party costs of trial plus all disbursements like daily jury fees plus witnesses’ expenses for the defendant, as well as paying his or her lawyers.

Civil jury trials took longer than judge alone trials for obvious reasons. The jury considered issues which sought answers on the various allegations of negligence or contributory negligence plus

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The claim was based on the alleged negligent driving of the ambulance driver. Two eminent doctors, one a pathologist and one an emergency medicine specialist considered on the balance of probabilities that the deceased who was a fit young man would have survived his tractor injury and they were prepared to come from Auckland to give evidence for little or no fee. The insurers of the defendant St. John Ambulance had instructed a formidable team of Denis Blundell (knighted on the day before the hearing started) and Rodney Gallen as counsel plus medical specialists with contrary views to those of our people.

Despite the emotional claim of a young widow with a baby left without financial support, the jury answered all the issues relating to the alleged negligence in the negative. Looking back, I figured that a judge-alone trial might have produced a different and favourable result. The jury may have thought that the St. John Ambulance organisation and not the Motor Vehicle Third Party Pool would have had to pay damages. Civil juries were just as inscrutable as criminal juries!

There is a lot more that can be written about personal injury litigation - especially about some of the lawyers who specialised in it. But that will have to await another day. *Sir Ian Barker has spent 60 years in the law; his first 20 years as an advocate, the next 20 years on the High Court Bench and the last 20 as an arbitrator, including serving as Vice-Chancellor at his alma mater, Auckland University, and teaching at Cambridge.

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NZBA/MAS Partnership In 1921, in the wake of the Spanish flu pandemic, a group of doctors in Napier got together to form a mutual insurance company.

and Wellbeing Portal – to New Zealand’s barristers, regardless of whether they are also MAS Members.

One hundred years on, in the midst of another pandemic, the company they formed – MAS – continues to support New Zealand’s professionals.

We do this because as well as providing insurance and investments we’re eager to inspire a healthier New Zealand.

Things have moved on a bit since our mutual was established – we’ve opened our doors to all professionals, for one thing – but the founding principle of supporting the communities within which our Members work and live continues to guide our work.

That’s why we’re excited about our partnership with the New Zealand Bar Association. As well as providing excellent insurance and outstanding customer service, we’ve always looked for ways to form long-lasting relationships with our Members and the professional bodies to which they belong.

We’ve been working with the NZBA for three years now, supporting conferences and events but also making our resources available – like our Health

Our Health and Wellbeing Portal is one example of our intention in action but so too is our Responsible Investment Strategy, which guides how we invest our Members’ KiwiSaver funds; our establishment of the MAS Foundation to support under-served communities; and our sponsorship of events like Wellington’s Brendan Foot Supersite Round the Bays.

Our partnership with NZBA has gone from strength to strength, and we’re looking forward to what the future holds. If you want to find out more about how we can help you, please give us a call on 0800 800 627 or email MAS Adviser Peter Lycett (peter.lycett@mas.co.nz).

From all of us here at MAS, we hope your 2021 has started well, and we wish you all the very best for the year ahead.

The following articles are reproduced by permission from OnMAS, the magazine for MAS Members. For more articles like these visit www.on.mas.co.nz .

Well in Every Way The concept of Te Whare Tapa Whā is about maintaining not just physical and mental health but also social and spiritual connections in order to promote good health.

In the early 1980s, a psychiatrist based in Palmerston North devised a holistic approach to treating his patients’ health.

Little did he know almost four decades later, his concept would be picked up by Aotearoa’s health sector and would be implemented across the public sector, private businesses and community organisations.

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That concept is Te Whare Tapa Whā and its creator, MAS Member Sir Mason Durie (Rangitāne, Ngāti Kauwhata, Ngāti Raukawa), says he’s “surprised – in a good way” to see it continue to resonate today.

Four dimensions of the wharenui While he was working as a psychiatrist at Palmerston North Hospital in the 1970s, Sir Mason became increasingly disillusioned with the narrow clinical approach to treating patients. In his view, the traditional focus was on dealing with the symptoms of a health problem without considering underlying issues that might lie behind the symptoms.

On ward rounds, Sir Mason would discuss with his colleagues the concurrent mental health problems of the patients admitted with heart, respiratory and other physical issues. He’d also see patients for psychiatric treatment and note they were often in poor physical shape.

“The mainstream approach was a very siloed one. It’s not that physicians didn’t want to do their best for the patient – it was more a failing with a system where everyone operated in disciplines or specialities. Good health does not just depend on a single specialist service. There’s a bigger picture to think about.

“I suppose what I was doing was aiming towards a focus on overall wellbeing rather than the narrower goal of recovery and removing symptoms. That’s important but it’s not an endpoint.

“The endpoint is to have someone who is well in every sense of the word.”

Sir Mason’s Te Whare Tapa Whā model refers to a wharenui (or meeting house) to illustrate the four dimensions of wellbeing: taha tinana (physical health), taha hinengaro (mind), taha whānau (family) and taha wairua (the spiritual dimension).

With four walls, the wharenui is a symbol of these four dimensions.

All four sides are important for keeping the wharenui upright, and if one of the dimensions is missing or damaged, a person may become unbalanced and subsequently unwell, affecting all other dimensions of their health.

Sir Mason says the concept is closer to the modern concept of wellbeing and holistic health.

“In modern terms, the idea of wellness has caught on in a big way, which is not just about removing the symptoms but treating the disorder to help a person be well.”

Holistic health Sir Mason first presented the concept of Te Whare Tapa Whā at a talk at Palmerston North Hospital

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in 1982, and he says the initial reaction from the roomful of doctors was one of “disbelief”.

It suggested a holistic way of thinking about health that was radical for its era. Some health professionals saw it as a challenge to the fundamental approach to patient diagnosis and treatment they had used all their working lives.

The most unconventional part of Te Whare Tapa Whā was the idea that a person’s spirituality has a role in their health; it was a dimension traditionally overlooked by health practitioners.

Sir Mason says the meaning of spirituality for an individual is very personal and doesn’t necessarily relate only to religious beliefs. It was an area he found had significant resonance for his Māori patients who valued te reo, heritage and the wider environment.

“I had a number of Māori patients who would talk about things that linked much more to spirituality than to the other aspects.”

Despite early resistance, Sir Mason persevered.

He continued to discuss the approach with colleagues, used it in his work with a research project being undertaken by the Māori Women’s Welfare League and later presented the model at a Māori health hui in 1984.

Soon the idea gained support outside Māori health, with the concept being picked up internationally, although different countries interpreted the model in different ways.

“I initially developed it with Māori in mind, but it was written much more universally. Spirituality, for example, has very different connotations for different cultures and different countries. Some people see it as a religious faith-based approach, and other people in different countries see it in their own way.

“The concept of whānau is also seen differently from one culture to another. The wider overseas interpretation recognises the four dimensions of whare tapa whā but does not simply mimic the Māori viewpoint. Instead each culture brings in their own aspect of spirituality and what constitutes a sound, healthy family.

“It is also important to remember that a house is built on land – it is grounded on whenua and refreshed by the sky above.”

Broader adoption Almost four decades on, Te Whare Tapa Whā is widely used throughout the health sector and has been adopted by government agencies including Whānau Ora, the Ministry of Education and the New Zealand Defence Force (NZDF).

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In addition to physical and technical training, NZDF recruits are given resilience and mindfulness-based attention training, which helps them gain and maintain the positive mental health required in the job.

Colonel Clare Bennett, NZDF’s Director of Integrated Wellness says Te Whare Tapa Whā has provided a model to look beyond just physical resilience, which helps the organisation’s people stay healthy and cope with the pressures of the job.

“We take away a lot of the traditional support networks when recruits come into the organisation, and it can be difficult by the nature of the roles where we ask our people to periodically take on tasks that can be more stressful than many normal occupations and require people to be resilient and able to bounce through times of emotional challenge.”

Te whare tapa whā was introduced into NZDF training more than five years ago and has resonated with a workforce that is almost 15% Māori.

“It’s really important to use a model that reflects our culture and representation of our people,” Clare says.

Bringing this holistic perspective to health has helped shift the stigma around mental health, and Clare says younger recruits, in particular, are more willing to admit when they’re struggling mentally and to seek help.

“We have a self-assessment tool based on Te Whare Tapa Whā to get people thinking about their health in a holistic way. While not all factors that impact our health are always in our control, there is a range of things that we can do to help keep us healthy and performing at the top of our game,” she says.

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03 Toru 02 Rua

01 Tahi

04 Wha

Te Whare Tapa Whā The four dimensions of wellbeing 01 Taha tinana (physical health) It’s about how your body grows, feels and moves and how you care for it. Nourishing and strengthening your physical wellbeing helps you to cope with the ups and downs of life. Feeling physically well helps you feel mentally well.

02 Taha wairua (spiritual health) Your spiritual essence is your life force – your mauri. This is who and what you are, where you have come from and where you are going. For some, wairua is the capacity for faith or religious beliefs or having a belief in a higher power. For others, wairua is an internal connection to the universe or the sacred.

03 Taha hinengaro (mental health) Your mind, heart, conscience, thoughts and feelings. It’s about how you feel as well as how you communicate and think.

04 Taha whānau (family health) Who makes you feel like you belong, who you care about and who you share your life with. Whānau is about extended relationships – it’s not just your immediate relatives. It’s your friends, hoamahi (colleagues), community and the people you care about.

Whenua Whenua is our connection to the land. It’s soil, plants, animals and people – tangata whenua. It’s the earth through which you are connected to your tūpuna/ancestors. Whenua is a place of belonging, and it’s comforting that it is never too far away.

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Building Our Brain’s Ability to Cope once knew, which – for some people – no longer exists. They want to know what the future will look like, when they can travel and when relatives stuck overseas can come back. And for those who’ve lost their jobs, it’s about how they are going to pay the mortgage and survive a recession.”

Our mental resilience has been challenged by the global pandemic, and it’s clear that the virus will be with us for some time to come. How will we cope psychologically with the ongoing impact of COVID-19 on how we live, work and play?

Within the space of a couple of months, the COVID-19 pandemic upended our world.

Fortunately, New Zealand has avoided the infection and casualty rates seen in other countries. But the pandemic has wrought massive economic damage and changed how we live our lives.

Consultant psychiatrist and University Auckland teaching fellow Nick Hoeh agrees.

of

Less visible but no less real is the psychological toll of the pandemic. By way of comparison, when the SARS pandemic tore through Hong Kong in 2003, scientists found that, over the next four years, more than 40% of SARS survivors experienced psychiatric illness, most commonly PTSD or depression, but also psychosomatic pain and obsessive compulsive disorder.

We also know from tragedies such as the Christchurch earthquakes that the emotional impact of a crisis can manifest long after the immediate threat has passed.

A 2018 New Zealand Listener story on the ongoing mental health effects of the quakes reports “demand for child and youth services has doubled since 2010; mental-health assessments undertaken at Christchurch Hospital’s Emergency Department have jumped 150%; the number of adults seeking community support has grown by a third”.

If there is any silver lining in these tragedies, it is the chance to rethink the way we do things, to become more resourceful and to build a healthier future for ourselves.

The rise of anxiety Wellington clinical psychologist Jacqui Maguire says the COVID-19 pandemic is causing heightened feelings of anxiety in many people.

“There’s a sense of uncertainty that people are experiencing about the future and wondering if it’s ever going to get back to normal,” says Jacqui.

“There’s also a feeling of grieving for a world we

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Clinical psychologist Jacqui Maguire

Consultant psychiatrist and MAS Member Nick Hoeh

“Even if people aren’t worried about getting sick, there’s the issue of working from home and having to deal with a whole new set of technological challenges, while for those who’ve lost their jobs, there’s anxiety around what the future holds. And for almost everyone, there are questions about what COVID-19 is, how bad it’s going to get, is the government doing enough and so on,” he says.

Jacqui says these feelings can result in physical anxiety and in not being mentally present.

“At work, if you’re stressed and your mind is somewhere else, that could lead to a decrease in productivity, while at home, it could lead to irritability and a loss of engagement with family and friends,” she says.

All these anxieties can affect everything from sleep patterns and our ability to concentrate to social withdrawal where we disconnect from others.

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Adapting to change In most cases, it is impossible for individuals to significantly change the situation they find themselves in. But it is possible to reframe the way we think about our circumstances and build our mental resilience to these external stresses.

The good news is that mental resilience is not an inbuilt trait but something that can be learned over time. “We’re actually born with a baseline of resilience. While that might be higher for some than others, it’s a set of skills we all need to build on and practise,” Jacqui says.

According to Nick, mental resilience is built on four main pillars – self-awareness, self-care, positive relationships and purpose.

“Purpose is about finding what matters to you and building a structure and routine around that.

Humans are social creatures so having a social support network is important, while physical exercise and being in touch with your emotions is also critical to mental and physical resilience.”

For Jacqui, building mental resilience starts with emotional regulation, where you actively ask yourself how you’re feeling several times a day.

“The next step is to label that feeling – are you sad, worried, stressed? Then you regulate that feeling. So if you’re feeling stressed, practise mindful breathing techniques. If you’re feeling overwhelmed, reach out to a trusted person for support.

“I always recommend clients draw up a list of five people they can approach when things aren’t so good – people who can offer you emotional support and get you back into an emotionally strong place.”

Focus on what you can control, "While feelings of anxiety or fear are natural," Nick says, "It's also important to recognise what we can and can’t control."

“Ask yourself what you can control and focus on that – such as being able to go for a walk in the sunshine – and leave behind things that are out of your control, such as when the borders will open.”

It’s also helpful not to oversaturate ourselves with news that can exacerbate our anxiety, especially if we’re obsessively scrolling through newsfeeds for updates.

“Set yourself a goal of only checking news sites once a day and then leave it until the next day. It’s

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about finding balance so that you’re informed but not overwhelmed by the news.”

Mental resilience is also about maintaining a daily routine, from what time you get up in the morning to what process you follow to get ready for work.

“Regular exercise is also super important because serotonin will help lower blood pressure and help when you get stressed,” Jacqui says.

Humans, she adds, are hard-wired to have a fight or flight response to certain stressful events. “We need to accept that it’s okay to feel like this, but we also need to flip the script in our heads that says we aren’t coping or that compares ourselves to others. Take one day at a time, and practise self-compassion where you stop those negative voices and be kind to yourself.”

If, however, the shoe is on the other foot and others are leaning on you for support, it’s a case of having “big ears and small lips”.

“Listen and be there for people who reach out to you,” says Jacqui. “You don’t need to fix the problem for them, but be present to help them through it. We’re all in this together, we’re all going through something we never saw coming and have never experienced before, so being kind to ourselves and others is how we’re going to get through it.”

How We’re Feeling A global survey by Qualtrics in April canvassed the mental health issues people were experiencing and talked to 2,700 respondents from the US, UK, France, Germany, Singapore, Australia and New Zealand. It found that 67% of respondents reported higher stress levels since the outbreak of COVID-19, while 57% said they had greater anxiety since the outbreak.

Around 54% reported feeling more emotionally exhausted, and 53% said they felt sadness day to day.

What’s more, 50% reported feeling more irritable, and 42% said their overall mental health had declined.

Respondents said the pandemic had implications for their work, with around 28% reporting difficulty concentrating, 20% saying it now took them longer to complete a task, 15% having trouble thinking, 12% procrastinating and another 12% admitting they had difficulty juggling tasks and responsibilities.

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Robing Room Bullying Rehna Azim*

This article first appeared in the November 2020 issue of Counsel, the Magazine of the Bar of England and Wales: www.counselmagazine.co.uk Rudeness in the robing room, sledging tactics and the unkindness of strangers when you’re newly called. Rehna Azim on bullying at the Bar and what you can do about it.

Actors often admit that a dozen good reviews can fade from memory but one stinker will linger and worm itself deep into the recesses of their psyche, gnawing away at their self-confidence, forever.

So, perhaps, does the unkindness of strangers when you’re a newly called barrister.

I was sitting in the robing room, sticking multicoloured tabs on my bundle. We still had paper bundles then, so you know this story is from long ago.

I felt a shadow fall over me. I looked up to see a tall woman in a too short for court skirt glaring down.

"So, what’s your case?" she demanded. No greeting. No introductions.

Startled, I obediently laid out my case. It was a strong one.

Surely she would recognise that and drop any futile opposition to it?

The solicitor for the children joined us. Short Skirt was suddenly all smiles and charm.

"And what does the Children’s Guardian say?" she simpered. They began to discuss the case. I tried to join the conversation. Short Skirt pointedly turned her back on me. Since she was taller than me, she also blocked my view of the solicitor. I had to scramble round her to see him. Each time I tried to speak, she talked over me, like I was an irritating, buzzing fly she had to raise her voice to drown out.

I went into the hearing bowed and humiliated, no longer sure of my open and shut case. Or even of my place in it. Perhaps the case was beyond me?

How would I withstand the devastating crossexamination Short Skirt would undoubtedly unleash on my witnesses? Was I even in the right career?

As it happens, I succeeded in the case. Short Skirt turned out to be something of a damp squib when it came to the crunch. Even so, I didn’t have the courage, at the time, to stand up to her.

Now, of course I know of such things as robing room bullying tactics. I know that when advocates demand to know your case, it’s usually because they haven’t read the papers and literally want to know the case against them without troubling themselves to read it.

"Is that it?" she sneered. My confidence in my case began to wobble. Perhaps it wasn’t so solid?

‘What else?’ she barked.

I laid out my winning points.

She snorted. My wobble toppled over in the face of her derision and lay smashed on the floor.

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I know too that their rudeness is an attempt to

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intimidate. I also know that some experienced advocates deliberately target young, new colleagues in this way.

However you word your response, remain polite: Although it may be difficult not to lash out with something equally rude, a calm but firm response is far better. As they say, once you respond to anger and discourtesy with anger and discourtesy, you’ve lost the argument. So, try not to let the situation escalate into a spiralling missile of anger. It will only cast an unpleasant shadow over the entire hearing. Do you really want to wake up each morning dreading going to court because you know it’s going to be an ugly battle outside the courtroom?

But back then I was still finding my feet in an already intimidating profession.

Short Skirt pressed every insecurity button she could find in me, hit every nerve of uncertainty I possessed and watched me implode.

In a funny way, though, I learnt from her. Learnt how not to behave. I told myself that, when I was more senior, I would never treat a newbie the way she had treated me.

This may be even harder… but don’t take it personally: I doubt Short Skirt gave me a second thought once we finished the case or even specifically targeted me. I just happened to be the inexperienced opponent she came across that day. We simply don’t know what is going on in someone else’s life to make them behave the way they do. We can only let them know that it’s unacceptable behaviour. We can even be kind and calming towards them.

If they are a decent person going through a bad time, they may apologise, either then or later. And if they are just plain unpleasant, you’ll know for next time and also have the satisfaction of knowing that you gave them a chance and didn’t lower yourself to their level.

Being the better person can be frustrating, but in the long run it works to your advantage professionally and personally.

I later learnt that she had various personal problems. It didn’t excuse her rudeness but it helped me understand possible causes for it.

Who knows what private fears and insecurities she had lugged into our encounter that morning?

But I had feelings too. The fact I can still recall the incident, years later, suggests her belittling behaviour wounded me.

Rudeness can be a display of disrespect. Or a display of power. It can be a violent reflection of the person’s inner stress or unhappiness, taken out on someone else because they can’t take it out on the real cause or person.

The effect on the person at the receiving end can be severe. Sometimes even seemingly minor rudeness can trigger deep feelings of low selfesteem in us that our facade of confidence keeps hidden.

Be the opponent you would like to be against: Be the lawyer who is well prepared, polite and a pleasure to be against. You’ll be remembered for it. Even if no one says anything at the time, word gets around. Advocates often ask each other what X is like. Court staff notice the nice lawyers and the not so nice ones. And yes, word does get back to judges too.

Colleagues who come to me for career coaching will mention a bad experience at court, in passing.

They usually start by minimising the incident.

However, when we explore it further, it becomes clear that the effect on them has been significant.

So, we may have to look further back, into early experiences to explain the current impact.

Each person’s experience has to be looked at individually but here are some general tips: Say something at the time: Don’t let your anger and upset fester, so that it sinks into your bones to become an exposed nerve for you later. Instead of fantasising, after the event, about all the caustic retorts you should have slung out, it’s better to say something simple in the moment. Perhaps something along the lines of ‘We’re all here to do the best for our clients, being rude doesn’t help.’ Or you can be firmer and say, ‘I won’t be spoken to like that, please stop.’

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Walk away: If you’ve tried to defuse the situation, remained polite, even tried humour but the person continues with their behaviour, just walk away. You don’t need to soak up their turmoil. Simply turn on your heel and walk away. Or tell them you’re going to walk away until they can behave better. If they calm down, you can resume the discussion. If they don’t, just go into court. Tell the judge you were unable to have constructive discussions and put your case. * Rehna Azim is a barrister at 42 Bedford Row, London, specialising in family law. She is Founding Editor of itsalawyerslife.com, a lifestyle blog for lawyers by lawyers.

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Saving for Retirement and How to Handle Luck

By Laetitia Peterson*

One of my favourite nonfiction holiday reads was Everything You Need To Know About Saving for Retirement

by Ben Carlson, a fellow financial adviser at Ritholtz Wealth Management in the US. Ben is the co-host of the Animal Spirits podcast and author of the popular blog, A Wealth of Common Sense.

It can be difficult to stick with your own investment plan when you see others hitting the jackpot during a raging bull market.

But there are some upsides to being comfortable in your own skin as an investor.

For me, building wealth slowly over time suits my personality better than the alternatives. "And the best part about building wealth slowly is…it actually works.”

At The Private Office, we advise people with a money personality like Ben’s and mine who choose to build their wealth slowly and don’t want to take on boatloads of risk. Some people prefer daytrading or concentrated deep value investing or venture capital or investing in private businesses or rental property or start their own businesses to build their wealth for retirement. That’s fine. There is no one size fits all.

As a financial adviser to many members of the legal profession and an investor myself, I identify with Ben’s confession.

“I’m never going to make millions of dollars on a single investment."

"I’m never going to create a startup that changes the world and becomes a unicorn."

"I’m never going to get rich overnight."

"It’s simply not in my DNA." Do I get a touch of jealously when I see stuff like this? Sure. You wouldn’t be human if you didn’t dream about huge or seemingly easy riches. But I’m OK with the fact that easy riches aren’t in the cards for me. Instead, I’ve chosen the slower path to building wealth.

There are some downsides to this path. I don’t get to brag on social media about how much money I made on a high-flying stock or business venture.

I don’t get to become rich overnight. I don’t get to become a guru who preaches the easy steps you can follow to become wealthy. I don’t get to create a world-changing company.

I don’t get to write a medium post about how transcendental meditation changed my life once I became a billionaire.

And I don’t get to know what it’s like to deal with a life-changing amount of money.

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Talking about not being comfortable with taking risk, an objection that keeps coming up with clients is market timing risk. The fear of bad luck is often holding clients back from getting started on an investment portfolio.

You could have been lucky by retiring in 2010 right before the onset of a decade-long bull market and enjoyed higher than expected returns. Or you could have been unlucky by retiring in 2000 just before a lost decade of global share market returns which included two enormous market crashes (the tech wreck and Global Financial Crisis).

It’s also important to remember it’s not so much the overall market return that matters with market timing risk but also the order in which you receive the returns.

For example, from 2000-2020, the NZX 50 Index returned 10.6% annually.

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Let’s say you retired with $1 million in the NZX 50 Index in 2000 and let’s further assume you decided to withdraw $40,000 in year one with an annual 2% inflation adjustment each year thereafter.

By 2020, you would have withdrawn more than $1 million from that portfolio over a 21-year period, while the remaining balance would still be a remarkable $4 million. With a withdrawal rate of 4% and annual returns in the order of 10%, it is no surprise the remaining balance would be significantly higher than the starting amount.

That is the magic of compounding.

These were the annual returns for the NZX 50 Index during that time: Year-end December

NZX 50 Index

2001

13.92%

2002

-1.20%

2003

25.64%

2004

25.06%

2005

9.99%

2006

20.32%

2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020

-0.35%

Annualised return

So how should you handle “luck” when planning for a successful retirement?

The answer is threefold: Diversification, Asset Allocation and having a Sound Financial Plan in place.

Diversification - My example here was fairly crude. Few retirees have their portfolio entirely invested the New Zealand share market which represents less than 1% of the world share market. It is prudent to add other share markets in proportion to their size as well as bonds to the mix to see how diversification in the portfolio would have changed the situation.

Asset Allocation - Using the same assumptions as above, but this time instituting a "Socially Responsible" 60/40 globally diversified portfolio consisting of 60% growth assets (shares and property) and 40% income assets (bonds and cash), would have left this retiree with $2.3 million by 2020 as opposed to the $4 million under the all-share New Zealand portfolio.

-32.80% 18.94%

However, instead of losses of -0.35% and -32.80% in 2007 and 2008 respectively in an all-NZ share portfolio, the SRI 60/40 portfolio was up +5.72% in 2007 and only down -15.99% in 2008.

2.44% -1.04% 24.18% 16.49%

By spreading your bets, you can reduce the risk of one asset causing severe damage as, when this happens, most investors have difficulty sticking to their plan and tend to bail out just at the wrong time and not capturing the long-term returns available to them if they remained invested.

17.55% 13.58% 8.81% 22.04% 4.92% 30.42% 13.92% 10.64%

You can see the nasty bear market in 2008, with New Zealand shares falling 33%.

To show how market timing risk manifests itself, let’s assume our hypothetical retiree with a $1 million portfolio experienced these same exact returns but they occurred in reverse order. So, the first year would be +13.92%, then +30.42% and so on. The same $1 million would have been taken out as distributions but now there would be well over $5 million remaining.

The annual returns for the New Zealand share

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market would be the exact same in both examples — 10.6% per year, but the ending balances show a difference of close to $1 million. This is purely down to luck.

So while the NZX 50 Index returned 10.6% per year from 2000-2020, a globally diversified SRI 60/40 portfolio, rebalanced annually, would have resulted in a return of 8.04% per year, still very respectable and without the huge swings in a bear market. It is also worth noting that the NZX 50 Index had a ‘top league’ performance in the last 20 years but when you look further back this has not always been the case. We advise against relying on past performance to predict future performance.

Having a Sound Financial Plan in place - The perfect portfolio only exists in hindsight and every retiree is going to face unique market, spending, tax and withdrawal circumstances.

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Therefore, the best and simplest way to protect against timing risk is to have a flexible financial plan that allows for the occasional course correction.

Having a comprehensive financial plan is important no matter your stage in life. You must be able to adjust your plan to the reality of what the markets or your life throw at you.

That could mean holding enough cash or bonds to see you through a prolonged bear market or recession, so you don’t become a forced seller in a down stock market. Or it could mean setting aside reserves when the markets are rocking to see you through the tough times on the other side.

About the author

Laetitia Peterson is a personal wealth adviser and is married to competition barrister, Andrew Peterson. 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.

A disclosure statement is available on request and free of charge.

However you decide to invest your money, a financial plan that takes into account the element of luck, both good and bad, is a necessity. At the Private Office, we are used to building this risk into our financial planning work to show all types of scenarios.

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MARSH INSIGHTS

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Fidelity insurance can cover you for claims that result in a direct loss to you from theft dishonest or criminal acts committed by any of your employees.

It can also cover you for the cost of an Investigative Specialist to assist in establishing the loss and in most cases recommend future loss prevention measures.

Things you can do to minimise your exposure to risk • Control individual business processes in order to create transparency.

• Clearly define the duties, authorities and responsibilities of individual employees.

• Ensure that there is a separation of functions (e.g. cash desk, accounting and dunning not in a single unit).

• Integrate controls into the daily routine. Carry out regular spot checks on all employees – regardless of their length of service – so that potential perpetrators are caught off-guard.

• Review the effectiveness of your internal control system (audit and compliance).

• Thoroughly vet new employees – especially those in key positions – before hiring.

Ask for detailed documents and references. Always request originals of all documents. If necessary, insist on the submission of a current extract from the criminal record.

To find out more please contact your Marsh representative: RACHEL MOLLOY Client Advisor – FINPRO Specialty New Zealand DDI: + 64 9 928 3249 Mob: +64 21 424 086 rachel.molloy@marsh.com

FIDELIT Y/CRIME CL AIMS EX AMPLES • An employee of the insured overpaid themselves through the payroll system increasing their wages and holidays.

The overpaid amounts equated to $106,566, which was reimbursed by NZI in addition to the investigators costs of $4,000.

• An employee of the insured stole equipment valued at $40,000 from the insured which was then sold overseas. NZI paid $40,000 in addition to the investigator’s costs of $5,000.

• An employee of the insured created fictitious invoices and presented them for payment with the employee’s bank account number. Insured paid out $63,000 in one year.

The employee paid back some of the funds leaving the insurer paying out $48,000 and the investigator’s fees of $1,400.

• An employee paid herself client funds over a long period of time.

The missing funds of $600,000 were misappropriated over a five year period. The claim was made under the insured’s Professional Indemnity policy which paid out $750,000 in losses after forensic investigation, and $330,000 for legal and forensic accounting advice.

Disclaimer: Marsh Limited arrange this insurance and are not the insurer. The information contained in this publication provides only a general overview of subjects covered, is not intended to be taken as advice regarding any individual situation and should not be relied upon as such.

Insureds should consult their insurance and legal advisors regarding specific coverage issues. All insurance coverage is subject to the terms, conditions, and exclusions of the applicable individual policies. Marsh cannot provide any assurance that insurance can be obtained for any particular client or for any particular risk.

Copyright © 2021 Marsh Limited. All rights reserved. S21-0350

This is the line up of cars performing that day. I am in the front row, second from the right beside the bright blue Jag F pace

Petrol Heads’ Corner The Hahei Leadfoot Festival David O’Neill*

We are all suffering from over-work, overconsumption from the holidays and over lockdown (well, that’s my excuse).

Consequently, I haven’t been able to lay my hands on a car to drive. Driving cars and car reviews has, seemingly, been the sole property of mainstream media outlets and not humble barristers writing for the NZBA magazine “At the Bar”.

So, you are going to have to put up with delivery of a missive about a recent event that I attended.

I didn’t go in my rally car. It wasn’t a race, but it was something just a little bit special.

hill climb to the summit of Pikes Peak in Colorado, USA. The track is 19.99 kilometres long. It has over 156 turns and climbs 1.44 vertical kilometres from start to the finish. It used to be gravel and paved but now is fully paved. It has been run since 1916 and is probably the premier hill climb event in the world.

Rod Millen raced for Mazda (Rotary) in USA, winning national titles over there.

When he broke the record up Pikes Peak in the 1990’s, he broke the old record by 40 seconds.

His all-wheel drive Toyota Celica developed 2000 pounds of downforce. This may not seem so remarkable, but the car only weighed 2000 pounds and, as he said recently, you could drive it on the ceiling upside down.

Let me give you some background to this “little event.”

Rod Millen is probably one of the best rally drivers New Zealand ever exported. He won just about every conceivable rally in New Zealand back when (some of us) were young, and then went to live in USA to ply his trade on the big stage.

He was well known in New Zealand but became famous in USA because he took on and beat the best of the world at the famous Pikes Peak Hill Climb.

The Pikes Peak International Hill Climb is also known as the Race to the Clouds. It’s an annual

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This is in Rod Millen’s car barn and this is his brand new Corvette – it has only done 90 miles on the speedo

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I certainly didn’t have to be asked twice. As far as I was concerned this was an opportunity that I would probably never get again. I couldn’t be bothered getting the race car out of the shed and getting it all prepped up for a 2 or 3 run stint up a driveway, so I took my own car. This meant that I would have to be a little bit circumspect when it came to putting my foot down and ripping around a corner, not to mention the fact that I had brand new tyres and didn’t want to destroy them.

This is Leigh Hopper in his Subaru Sti which is his Targa car

He has competed in innumerable events all round the world but has effectively retired and owns a 150 acre rural property just outside Hahei on the Coromandel Peninsula.

He bult a magnificent home overlooking Hahei and the Pacific Ocean but decided to make his driveway something different. Word is he fashioned it around all of his favourite corners in the world. It’s only about 1.2 kilometres long but has an awful lot of technical corners, humps and bumps which, if you weren’t being careful, could see you spearing off into the undergrowth or, for that matter, a tree.

Millen first started out running a competition up his driveway to, as I understand it, celebrate his 60th birthday. Apparently, it was such a success for Hahei, the locals asked him to do it again – and he did! It has gone on to become a unique weekend on the New Zealand and international motorsport calendars. There’s a unique mix of classic cars, vintage motorcycles and motorsport legends who all compete for bragging rights about who got up to the top of the drive the quickest.

The day was a classic Coromandel Peninsula summer day with not a cloud in the sky. We had a look at Millen’s collection of vehicles in his barn which included the aforementioned Celica, a Porsche Cayenne which had competed in a London to Beijing Rally (or similar – I forget the name), some off-road type vehicles, several of his Mazda rally cars and – to top it all off – a 2020 Corvette which had only done 90 miles.

The start is down by Hahei Road by the entranceway and runs gently along to a narrow bridge with a tight exit going right and then under another bridge with several bumps on the way, enough to get the car not lifting up, but certainly light on the springs and then goes past the barn where all the toys are stored and winds up into the hills around some very tight corners and some steep ascents through the hills and then finally under a bridge to the finish.

To say that it was exhilarating is understating it. Quite apart from the magnificent piece of road that Millen has created, there was also the beautiful bush through which we drove (some of the trees were pretty close to the edge of the road) and then finally popping out at the top with a view out over the Pacific.

You can see in some of the pictures showing me

A number of my friends and colleagues have competed at the Leadfoot Festival (as it has become known) and all of them say the same thing – truly exhilarating.

It has been named the ultimate driveway.

Because of Covid, the 2020 and 2021 Leadfoot Festivals were cancelled.

However it happened, Targa competitors were invited to come along, spend the weekend at Whitianga and have a “sedate” drive up the Leadfoot Festival driveway.

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This photo is the “I was there” photo. That’s me in my car.

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doing some rather sedate driving (honest) up the driveway but it was quite fabulous. These are the “I was there” photos.

There was an array of cars. There were a couple of competition cars who tried to show the rest of us how the driveway was to be driven and they didn’t do a bad job. We had a Porsche 911 driven by the man who makes all the pies for BP around the country, a Subaru driven by Lee Hopper, who’s probably more famous for smashing Subaru’s up than anything else (but he still drives fast), and then an array of a variety of vehicles from my car through to a BMW X5 which was driven by a friend of mine.

I have to say that the mate in the X5 drove it like he had nicked it and in fact at one stage looked like he might be having a quick visit to the undergrowth but collected it and brought it back onto the track.

I only did a couple of runs because I have found, to my expense, that driving cars quickly over racetrack-type tarmac tends to destroy tyres very, very quickly.

However, I left about lunchtime to travel back to where I came from and the others carried on racing up and down the driveway.

It was a glorious day and I understand finished off with a tour around the Whitianga waterways on a Riviera 65 and a barbeque to finish. Sounds tough… *David O’Neill is a Hamilton barrister, the NZBA treasurer.

He gets to hob knob with racing legends at their homes.

He has been the NZBA treasurer in recent years. David works out of Riverbank Chambers in Hamilton.

This is the Ferrari doing its thing – sort of gingerly. At about $600 k you wouldn’t want to stack it into a tree………..

New Members of the NZBA Duncan Allan WELLINGTON Megan Ball WELLINGTON Gregory (Greg) Barnes SC TASMANIA Aedeen Boadita-Cormican WELLINGTON Angeline Boniface CANTERBURY Peter Chan AUCKLAND Isabella Clarke WELLINGTON Luke Elborough AUCKLAND Nicolas Elsmore BAY OF PLENTY Hamish Evans CANTERBURY Kirsten Gray CANTERBURY Dr Elizabeth Gresson AUCKLAND Cecil Hanafin CHRISTCHURCH Jared Holt WELLINGTON Desley Horton AUCKLAND

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Lynn Hughes AUCKLAND Bree Huntley AUCKLAND David Kraitzick AUCKLAND Andra Lazarescu MANAWATU-WANGANUI Duncan MacKenzie WELLINGTON Roderick Mulgan WELLINGTON Carolina (Nina) Muller AUCKLAND Oliver Neas WELLINGTON Daniel Parker WELLINGTON Pita Roycroft AUCKLAND Maile Sanft AUCKLAND Matthew (Matt) Smit CANTERBURY Oliver Troon AUCKLAND Joanne Wickliffe AUCKLAND David Young AUCKLAND

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