At the Bar - December 2021 by New Zealand Bar Association | Ngā Ahorangi Motuhake o Te Ture

At The Bar December 2021

Class Actions Guide to Societies Riding the wave of optimism

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p4 YOUR ASSOCIATION 4 From the President – Paul Radich QC 7 Meet our New Council Members – welcome to our co-opted members 7 Council Meeting Dates 2022 11 New Members – new members of the Association 33 Events – recent events and ceremonies p17

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LEGAL MATTERS 8 A New Incorporated Societies Act – A guide for societies 12 Let’s be Civil! – the true cost of incivility 13 Class Actions – the current situation 15 Riding the Wave – breaking the circuit on youth offending 17 Family Mediation – is it working for dads? 29 Sentencing Advocacy Competition – the 2021 competition was held online PRACTICE AND LIFESTYLE 20 Kōrero – what is happening in Chambers 22 Book Review – Ngā Kete Mātauranga 24 Is it Time to Trust your Gut? – LexisNexis on the power of trust 26 Planning for the Future During a Pandemic – MAS on playing the long game 27 Uncoupling – a guide to separation 28 Coping with Ambiguity Now Covid’s Here to Stay – facing the ambiguity of if and when 30 Petrol Heads’ corner – David O’Neill on Cupra Formentor

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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 Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Jacqui Thompson (Editor) Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz

Lisa Mills (Compilation and advertising) Tel: +64 9 303 4515 Email: nzbar@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224

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

From the President Paul Radich QC*

Kia ora koutou. One of our most challenging years is drawing rapidly to a close. In a range of different ways, we have all grappled with some of the most difficult practical, legal and social issues we could imagine – managing our lives, our families and our work under considerable restrictions, managing clients and hearings through remote technology, dealing with delayed, and then abridged, hearing timetables and navigating – both personally and for clients – some of the most challenging constitutional issues our society has faced at any time in its history. We all deserve a good nurturing and reflective break.

candidate was appointed to fill the vacancy. I am very pleased to welcome back Iswari Jayanandan, a member of our 2020-2021Council, and one who has made an immense contribution to the Bar Association’s work.

Ceremonies Sincel my last column, we have seen a number of swearings in of High Court and District Court Judges. I have tried to attend as many of them as possible, but the workload from dealing with Covid issues means I have not been able to get to all of them. I reiterate my warm congratulations to all of the recently appointed judges.

In the meantime, here is a recap on recent events and a summary of the Bar Association’s work, as delivered through its Council, Secretariat, and committees.

Changes to the Council On 1 October we welcomed the new Council. You can find biographies of the Council members in our September issue of At the Bar.1 Alongside our new Council members, I am delighted to welcome Maria Dew QC, our President Elect. Maria’s term as President begins on 1 October 2022. But one of the advantages in having the overlap between current and incoming President is that it helps to spread the substantial workload. Maria has (as one would expect) hit the ground running and has already made significant contributions to the Council’s work. As many of you are aware, under our Rules of Association, we can co-opt up to five members to the Council if it is considered to be in the interests of the Association. We have a considerable workload at the moment, and so Council determined that we would make four immediate co-options. We hope to advise in the New Year a fifth co-option to help us with a particular project. I would like to warmly welcome new Council member, Gowan Duff, and returning council members Sam Jeffs, Stephen Layburn, and Maggie Winterstein. Finally, as many are aware, we had a vacancy on Council for a candidate from Tāmaki Makaurau | Auckland. Our rules allowed us to either appoint someone to that vacancy, or we could run another election. Given that we had held an election just a month earlier, with a call for nominations at that time, the Bar Council considered that it should respect the outcome of that election and the next highest polling

Swearing in ceremonies are a wonderful reminder of the journey that each judge takes before their appointment. It is often surprising, when attending the ceremonies, how little we know of our former colleagues. It is more than a little humbling to listen to stories of the careers of our new judges, and of the contributions they have made; both to the law and to their communities. One of the innovations in recent ceremonies, particularly in the District Court, has been the inclusion of mihi whakatau. Less formal than a pōwhiri, the District Court mihi whakatau involves the new judge and his or her family being called into the court room, through a karanga, and then whaikōrero, following which the judge is ushered across the courtroom to be received by members of the judiciary. The ceremonies are always impressive and remind us of the duality of our constitution. Recent innovations in ceremonies for new High Court judges have seen a bespoke approach to each,

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tailored around the associations and experiences of the judge. We have, for example in recent months, seen a vibrant ceremony in Christchurch for Justice Eaton, a masterclass in the use of remote technology for Associate Judge Taylor’s memorable ceremony and a dynamic ceremony for Justice Harvey in the Rotorua Māori Land Court. Another innovation for ceremonies in general has been the introduction of remote particpation. Counsel who cannot attend in person – mostly as a result of Covid travel restrictions – have been able to join by VMR. In particular, I extend my thanks to all Queen’s Counsel who have sat patiently in front of their computer screens, in full regalia, to attend these events. It is fair to say that the technology has been challenging at times and we thank Jo Robb from the Chief Justice’s office for her patience and perseverance.

End of year events and Silk dinner To date, I have attended end of year/Christmas events in te Whanganui-a-Tara | Wellington, Ōtepoti |Dunedin and Tauranga (see photos on p33). I very much enjoy meeting everyone and taking the time to reflect over the year that has passed. Covid-related difficulties led to the postponement until early next year of our end of year events in Tāmaki Makaurau |Auckland, Ōtautahi | Christchurch and Kirikiriroa | Hamilton. We hope to instead host "welcome back" events in mid-February. One event that was able to go ahead recently was the delayed call to the inner bar of Kerryn Beaton QC in Christchurch, which was followed in the evening by her Silk Dinner. This was (literally) a sold out event and it was nothing short of fantastic to see the Christchurch profession and judiciary attend in such numbers. The camaraderie at the bar in Christchurch and the vibrancy of the atmosphere in the room that night was palpable.

Committees The Advocacy Committee has just delivered a report to the Secretary for Justice on Access to Justice. The report highlights the reality of a legal aid system in crisis. The recent NZLS survey provided strong statistical support. When that is added to accounts from practitioners of the impacts on access to justice on the profession, including lawyers leaving the legal aid scheme altogether, a graphic and disturbing picture is presented. We hope to be able to share the report with you shortly. Earlier this year we established te Ao Māori committee to help us all transition to a better working partnership under te Tiriti o Waitangi. It will provide education and understanding for us all in partnership with Māori organisations. We anticipate being able to make two significant announcements in the new year, thanks to the committee and the organisations it has been working with.

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The Membership and Wellbeing Committee has been focusing on the things that we deliver to you, our members. It has been working closely with other committees to ensure that the focus of all of our work is on our members. As you are aware, one of our key deliverables is free training and collegial events. We know that members have appreciated this approach. At the moment the committee is working with juniors to identify the support they may need in light of Covid. The Commercial Bar Committee is focussing on enhanced deliverables for members, including opportunities to expand the profession’s understanding of the wide range of work they do. Again, we are looking forward to their 2022 programme. The Criminal Committee is facing an overwhelming workload. It has been participating in an intense criminal processes review, as well as trying to keep up with the impact of Covid and the legislative and practical changes it brings to the operations of the courts. Each week the Committee is providing extensive feedback to judges, officials and stakeholders and often on very short notice. The pace of these consultation and feedback processes puts real pressure, not only on our Committee and Council members, but on the terms of the measures under development. The Diversity and Inclusion Committee has reviewed our Gender Equitable Engagement and Instruction Policy. That work is almost complete and we will shortly be making announcements about it. In addition, the Committee has been working on a report on gender statistics on appearances in the senior courts, setting up secondary school mooting competitions in South Auckland, and liaising with schools and universities to encourage students to consider a career at the bar. The Education Committee provided a superb programme in 2021 covering wellness, topics of professional interest, and focusing strongly on core advocacy skills. The feedback we have received from the consistently high numbers of attendees has been more than encouraging. Plans for 2022 are underway, with an innovative approach to advocacy training expected to be delivered in the first quarter of the year. Governance Audit and Risk forms a core part of our workload. Earlier this year, we appointed a workgroup to review the Marsh/NZBA insurance scheme. That work is almost complete. A more detailed article will shortly be circulated to members. However I do want to make it clear that the Bar Association’s role with this policy is to make it available to members. We do not promote it. This is clarified in the article. We have appointed a workgroup to consider our Rules of Association. Our Rules have served us well in the thirty-seven and a half years of the Association’s existence but now need to be amended in light of the new Incorporated Societies Act and amendments to the rules of conduct.

Finally, I’m very pleased to be able to say that we have two brand-new committees; our Employment Law and Privacy Committee2, and our Family Law Committee.3 Both have provided considerable value on a number of issues in the short time they have been in existence. If you would like to enquire about either committee, please contact us.4

Covid and Courts The disruption caused to our courts by Covid and its offshoots cannot be underestimated. The backlog is creating critical issues. The Chair of our Criminal Committee, James Rapley QC, commented on the issue in the media recently.5 As of 30 Septemer, there were 3250 outstanding jury trials nationwide with a further 2635 judge alone trials pending. As James said, backlogs are about people first and foremost. But there are a range of factors that need to be addressed, not least of which is the safety and well being of counsel. The judiciary has been consulting with heads of professional organisations regularly since the Covid pandemic began. Currently the focus is on the protocols to enable court work to get underway, more substantively under the COVID-19 Protection Framework – the “traffic light system”. We are going to have to ask your indulgence and patience as we continue to seek feedback from you while we work through the process. It is important that all voices are heard when developing a system for the delivery of justice in a safe, efficient and constitutional manner.

And finally… As the pōhutukawas burst into life around us, I know how much everyone will be looking forward to a long overdue break. I wish you all a truly joyful holiday season. If you celebrate Christmas, Merry Christmas | Meri Kirihimete. I look forward to seeing you all in the New Year. Kia noho haumaru – Stay safe Ngā mihi nui,

*Paul Radich QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email him via president@nzbar.org.nz

REFERENCES https://issuu.com/newzealandbarassociation/docs/at_the_bar_august_2021 See https://www.nzbar.org.nz/Employment_Law_and_Privacy_Committee for members 3 See https://www.nzbar.org.nz/Family_Law_Committee for members 4 https://www.nzbar.org.nz/contact-nzba 5 https://www.stuff.co.nz/national/crime/127044273/mans-fouryear-wait-for-trial-one-of-nearly-6000-cases-to-be-heard 1 2

Seasons Greetings | Ngā mihi o te wā We are days away from the start of the summer holidays and Christmas, for those who celebrate it. If you do, we wish you Merry Christmas | Meri Kirihimete. To mark the end of this year and the season, the New Zealand Bar Association has donated the amount that we would normally spend on buying, writing and posting the cards, to the KidsCan charity. We have done so on behalf of our members, Council, Secretariat, partners, sponsors and stakeholders. Education can be a ticket out of poverty. KidsCan tries to break the poverty cycle by levelling the playing field. It gives children from struggling families the same opportunities for learning as others. The charity partners with schools and early childhood centres across New Zealand to give the 1 in 5 Kiwi kids affected by poverty the essentials: food, clothing and health products. Thank you all for your support for the Bar Association over the last year. Like 2020, this has not been an easy year. If anything, we have experienced greater uncertainty. But with kindness and respect for each other, we have survived. We wish you all a relaxing and safe holiday season. Please take care as you move around these holidays and stay safe, Ngā mihi o te Tau Hou ki a koutou katoa | Happy New Year to you all. Paul Radich QC, on behalf of the Bar Council and Secretariat.

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Meet Our New Council Members The Council has co-opted the following members to the Bar Council. Gowan Duff Gowan is a barrister at Mātai Chambers in Auckland and specialises in criminal defence. He regularly appears in the District Court and High Court and has a passion for jury trial advocacy. Along with his practice, he was one of five founders who established the software company, Aunoa (Māori for automate), which was created to support barristers in all aspects of their practice. Prior to being co-opted, Gowan has been a member of te Ao Māori committee and Membership and Wellbeing committee. Ko Mauao te maunga. Ko Tauranga te moana. Ko Mātaatua te waka. Ko Ngāi Te Rangi te iwi Ko ngai tamawhariua te hapu Ko Te rangihouhiri te marare

Sam Jeffs Sam is a barrister at Bankside Chambers specialising in commercial and civil disputes. Sam graduated from Oxford with a BCL (Distinction) and the University of Auckland with BA/LLB (Hons) degrees, where he was a Senior Scholar for both Law and Arts. Initially employed by Sir David Williams QC, Philip Skelton QC and Kelly Quinn at Bankside Chambers, Sam is now a member of Bankside himself, having had

his career entirely at the bar. Sam is serving his second term on the NZBA Council.

Stephen Layburn Stephen is a commercial barrister based in Auckland with experience in a wide range of corporate and commercial matters, particularly in the financial services sector (with a focus on securities law), business transactions and corporate and corporate governance issues. He has worked at Hesketh Henry, Bell Gully, Simpson Grierson and Kensington Swan – as well as secondment to the Securities Commission and the Producer Board Project Team. He is also a member of the Commercial & Business Law Committee of the New Zealand Law Society, an external counsel to the NZX Markets Disciplinary Tribunal and a member of the PWC Audit Advisory Board.

Maggie Winterstein Maggie Winterstein was admitted to the bar in 1998 and worked as a junior barrister for Simativa Perese in the early 2000s in the area of civil and commercial law, before becoming a Police prosecutor in the Counties Manukau area from 20022008. She has a strong interest in social justice which is reflected in her choice of area of practice, youth advocacy and governance involvement in youth-centric organisations. Maggie is based at Liberty Law, a chambers in Manukau.

Council Meetings and Association Information The NZBA Council meetings are scheduled on the following dates in 2022: Date 11 February 2022 31 March 2022 10 June 2022 12 August 2022 25 November 2022

Location E-Meeting Tauranga E-Meeting E-Meeting TBA

Please note that these dates are subject to change. The latest meeting dates will be listed on our website. Members are welcome to submit matters for the consideration of the Council.

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The New Zealand Bar Association is governed by its Council under its Rules of Association. Rule 6.1A allows the Council to delegate functions and powers (including the power to subdelegate). The more common delegations are to the Management Committee and the Executive Director. The Management Committee until 1 October 2022 is: Paul Radich QC (President and Chair) Phillip Cornegé (Treasurer) Maria Dew QC Dr Simon Foote QC Anne Toohey Jacqui Thompson (Executive Director)

A New Incorporated Societies Act – a guide for societies Mark von Dadelszen* These notes, prepared by Mark von Dadelszen, provide an overview of the more significant elements of the proposed replacement of the Incorporated Societies Act 1908. The Bill has now had its second reading. An Exposure Draft Bill was produced in 2015, and an Incorporated Societies Bill had its First Reading in Parliament on 6 April 2021. The Select Committee has now reported back to Parliament and the Bill had its Second Reading on 17 November. If the new Act is not enacted in December, it is likely to be enacted in early 2022. New and existing societies should be proactive in anticipating the reforms when adopting or revising constitutions, but it would now be sensible for existing societies to defer adopting a new constitution until the new Act has been enacted. There are estimated to be over 24,000 incorporated societies, and every currently incorporated society (including those incorporated under the Charitable Trusts Act 1957 as societies) will be required, by the end of 2025, to re-register under the new Incorporated Societies Act if it wants to continue to have the rights and protections of being an incorporated society, and when re-registering, it must have a constitution that complies with the new Act.

1. Incorporated Societies Act reform The following is a brief background to the reforms: • The Incorporated Societies Act 1908 has effectively remained unchanged for over a century (in 1920 it was amended to allow for branch societies, and on the introduction of decimal currency in 1967 a shilling fine was changed to 10 cents, without allowing for the effects of inflation over six decades). In contrast, our companies’ legislation has been totally re-enacted six times since the Joint Stock Companies Act 1860 (1868, 1882, 1901, 1903, 1933, 1955 and 1993), all with regular amending Acts. • The Law Commission’s 2013 Report 129, A New Act for Incorporated Societies, recommended a complete overhaul of the Incorporated Societies Act 1908 (see www.lawcom.govt.nz/project/reviewincorporated-societies-act-1908/report).

• A 2015 Exposure Draft of the Incorporated Societies Bill largely followed the recommendations in the 2013 Law Commission Report (see http:// www.mbie.govt.nz/info-services/business/ business-law/incorporated-societies). The Bill as introduced, also, broadly follows those recommendations. The following principles in the Law Commission’s 2013 Report underpin the proposed new statute: • Societies are organisations run by their members, and those members have the primary responsibility for holding their societies to account. A group without members to hold it to account should consider an alternative form of incorporation (such as a trust). • Incorporated societies should not distribute profits or financial benefits directly to members (who join to achieve a shared purpose, and not for their personal financial profit from the activities of the society) – a key feature that sets incorporated societies apart from other types of incorporated entities. • Societies are private bodies that should be selfgoverning and largely free from inappropriate State interference. • The legislative regime should give societies some flexibility to adapt their operating environment to suit their purposes and their culture.

2. Members’ pecuniary/financial gain The new statute will continue (with minor exceptions) to prohibit societies from operating for the financial gain of their members and from distributing any gain, profit, dividend, or other financial benefit to its members. However, a society will be permitted to “trade” (run a business), reimburse members for reasonable expenses related to society, pay members for services on a normal “arm’s length” basis, and provide benefits and incidental prizes and discounts to the public including members or their families.

3. Membership of societies Minimum society membership is proposed to be 10 (with corporate members still being equal to three

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individuals). A person must consent to become a member of a society (there may be some minor exceptions).

4. Minimum content of constitutions and member access to information Society constitutions will be required to be far more detailed than previously, and to include: • Provisions to keep an up-to-date register of members, • Members’ rights to access financial reports presented to the AGM and access to minutes of previous AGMs, • Procedures to deal with internal disputes (complaints concerning misconduct of or discipline of members, and grievances brought by members concerning their rights or interests as members). See paragraph 18 below for more information.

5. Society constitutions A society will be empowered to express its tikanga or culture in its constitution and to make bylaws. The Court will have some discretionary powers to amend a society’s constitution,

6. Registered office Every society will be required to have a registered office in New Zealand.

7. Branches Branch / parent society relationships will be defined by those entities, not by legislation (at present the Incorporated Societies Amendment Act 1920 provides for branches).

8. Limitation of member liability Members will not be liable for a society’s obligations, and the new provision will be generally aligned to that in section 97, Companies Act 1993. Societies will be empowered to indemnify members and employees who act in good faith in pursuing a society’s activities, and to take out insurance for the purposes of that indemnity.

9. Legal capacity of societies Societies will be deemed to have full capacity to carry on or undertake any business or activity, do any act, or enter into any transaction, and the new provision will be generally aligned to that in section 16, Companies Act 1993.

10. Ultra vires actions The new statute is expected to provide that no act of

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a society and no transfer of property to or by a society is invalid merely because the society did not have the capacity, the right, or the power to do the act or to transfer or take a transfer of the property, with some protection for innocent third parties.

11. Society committees Every society must have a committee of at least three “natural persons” with responsibility for the affairs of the society.

12. Society contact officer Every incorporated society will be required to have a statutory “contact officer” at all times (with whom the Registrar may communicate) who is a member of the society’s committee (it is likely that most societies will designate the secretary as the “contact officer”), and that person must be eligible to be a society committee member, must be 18 years of age and resident in New Zealand.

13. Officers, duties, etc The new statute will provide that a contact officer, committee member or other officer of a society must retire if he/she becomes disqualified. If a person is disqualified or banned from being an officer of a society, but acts as one, then he/she will be deemed to have all the relevant duties of an officer. The actions of any person as contact officer, committee member or other officer will not be invalid merely because the person’s appointment was defective, or the person was not qualified for appointment to the relevant office.

14. Committee member disqualifications A committee member will be disqualified if he/she is an undischarged bankrupt, is prohibited from being an officer of an incorporated society under the new Act, is prohibited from being a director or taking part in management of an incorporated or unincorporated body under the Companies Act, the Securities Act, the Securities Markets Act, or the Takeovers Act, is subject to a property order under the Protection of Personal and Property Rights Act 1988, or does not comply with any qualifications for officers in the society’s constitution.

15. Officers’ statutory duties Statutory duties will be imposed on society officers, and will be owed to society, including: to act in good faith and in the best interests of the society, to use powers for a proper purpose, to comply with the statute and with the society’s constitution, to exercise the degree of care and diligence of a reasonable person with such responsibilities, not to allow society activities to be carried on recklessly or in a way likely to create a substantial risk of serious loss to the society’s creditors, and not to allow the society to incur

obligations that the officer does not reasonably believe will be fulfilled.

16. Conflicts of interest Officers of an incorporated society with a direct or indirect financial interest in a matter will be required to disclose, as soon as practically possible, that interest to the society’s committee and in a conflicts of interest register. An officer who has disclosed a financial interest in a matter must not vote on that matter. An officer prevented from voting because of a financial interest may continue to be counted as part of the quorum, and a register of officers’ disclosures must be maintained and be open for members’ inspection, with a summary presented to each AGM.

17. Annual reporting An annual return will be required (with online annual returns being facilitated), with prescribed minimum annual return contents. The Bill was amended by the Select Committee to reduce the annual reporting burdens on those societies which, over the two previous years, have had total assets of less than $30,000 and total operating payments of less than $10,000.

18. Complaints and grievances Every society constitution will be required to include detailed procedures to deal with internal disputes (complaints concerning misconduct of or discipline of members, and grievances brought by members concerning their rights or interests as members). While societies will be free to continue, develop or adopt disputes procedures to meet their needs, their procedures and practices must satisfy the requirements for natural justice defined in Act. A society’s misconduct, complaint, disciplinary or grievance procedures must satisfy relevant specified natural justice minima (e.g. right to be heard and time to prepare a defence). Decision-makers in all classes of dispute need to be impartial and able to consider the issues without a predetermined view.

19. Statutory enforcement of obligations The new Act will provide that a society, a member, or a former member may apply to a Court for orders to enforce the constitution. The new Act will empower the Registrar to apply to a Court for orders to enforce a society’s constitution if in the society’s interest and the public interest.

20. Statutory sanctions and powers The new Act will provide for applications to a Court for orders for redress for officers’ breaches of duties. A member or a former member will be empowered

to apply to a Court for orders on the grounds that conduct of the society has been, is being, or is likely to be, oppressive, unfairly discriminatory, or unfairly prejudicial to him or her. The new Act will provide for infringement offences, and a range of new offences with meaningful penalties. In addition to any other penalty, a Court will have power, upon convicting a person of an offence under the new Act, to ban that person from holding a position of governance or management of an incorporated society or from being the contact officer of a society. The Registrar will have powers to require a society to supply information about its business, operation, or management, to require audits, to enter and search society premises, to investigate a society, to advise and assist, and to “freeze” property and funds for 21 days.

21. Terminating, restructuring and rescuing societies There will be a new statutory power for the Registrar to remove a society from the Register on request of a society or its liquidator. There will be new procedures to restore removed societies to the Register. The new Act will facilitate amalgamations and mergers of societies. Other changes will be made in respect of the winding up of societies.

22. Transition to the new Act The new Act will provide for a transitional period (until December 2025), during which every existing society will need to check that its constitution complies with the new requirements and re-register under the new Act.

23. Recommendations The substance of the reform proposals as now contained in the current Incorporated Societies Bill are unlikely to change significantly. The new requirements placed on incorporated societies by the new Act (the trade-off in return for the benefits of incorporation) will be onerous for some and may prompt some fundamental reconsideration about societies: • Why do we have a society, what need is it meeting, and are we fulfilling the wants and needs of our members – fundamentally what is our “purpose” or “mission”? Do we need a society (with voting members) or might some other type of organisation (perhaps a trust) meet our needs? • Might there be merit in considering combining

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forces with some other organisation or organisations providing similar community services (such as forming a combined sports club or combined cultural society)? • Do we actually need to be incorporated? The main benefits of incorporation for most societies are to protect members from most personal liability for society activities and to enable the society to enter into contracts for the benefit of its members. • If we choose to remain incorporated, how will we meet the greater reporting and accountability requirements of the new Act? Will we need to pay or increase committee honoraria or engage some external professional help? To avoid the pressure of having to revise a society’s constitution during the transitional period after the new Incorporated Societies Act is enacted: • Societies being formed now should seek to anticipate the changes by adopting constitutions that comply with the provisions in the current Bill, • Existing societies reviewing their constitutions now should consider the issues discussed in paragraph 2 above, and if the review proceeds draft a new

constitution that complies with the provisions in the current Bill, and All other existing societies should consider the issues discussed in paragraph 2 above, and should then commence reviewing their constitutions now, even if they delay putting a revised constitution to their members until after the new Act is passed. *Mark Dadelszen is well-placed to advise on the implications of the proposed new Incorporated Societies Act, and he advises societies and trusts throughout New Zealand, involved in a wide range of activities. Mark was a member of the Reference Group advising the Law Commission on the review of the 1908 Act, and was engaged by MBIE to advise on the proposed model constitution as originally recommended by the Law Commission and later he contributed to the development of the Ministry’s society constitution-builder. He also made submissions to the Parliamentary Select Committee which considered the reform Bill. Apart from having decades of practical experience in governance of societies and charities (for which service he was awarded a QSM in 2012), Mark is the author Law of Societies in New Zealand (the only specialist text on the subject in New Zealand, with a 4th Edition to be published following enactment of the new Incorporated Societies Act), and he writes regular articles on issues relating to societies and charities (see https://nfplaw.co.nz/articles/). Mark is also the author of Members’ Meetings, 3rd Edition, 2012. For specific advice relating to the issues discussed in this article, please contact Mark at mark@nfplaw.co.nz.

New Members We welcome the following new Association Members: Charlotte Agnew-Harington David Allan Bernadette Arapere Amy Bayliss Scott Brickell Vicki Campbell Christopher Cumberland John Delany Nicholas Dutch Maria Fuamatu Elizabeth Gambrill Savanna Gaskell Alison Gordon John Grace Michael Hodge Hugh Kettle Simon Ladd Zoe Lawton Kathryn Lydiard Trunelle Massyn Vicki Morrison-Shaw Valerie Munro

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Auckland Waikato Wellington Canterbury Auckland Waikato Otago Wellington Bay of Plenty Auckland Auckland Otago Wellington Wellington Auckland Wellington Auckland Auckland Auckland Auckland Auckland Canterbury

Ashley Oh Jamie O'Sullivan Rekha Patel Andrew Peden Natalie Pierce Roxanne Pope Jasper Rhodes Matthew Robson Peter Ross Kingi Snelgar Alice Strang Mingze Sun Siao-Yen (Yen) Taylor Samantha Turner Peter Twist Marieke van den Bergh Michael Vesty Jennifer Wademan Penelope Walker Barry Wilson James Winchester

Auckland Wellington Auckland Wellington Wellington Auckland Auckland Auckland Wellington Auckland Auckland Bay of Plenty Auckland Wellington Auckland Wellington Tasman Wellington Manawatu-Wanganui Auckland Hawke’s Bay

Let’s Be Civil! Ann Skelton*

Ann Skelton founded and co-ordinates Mediation Partners - a network of dispute resolution practitioners, working throughout New Zealand. Ann describes the true cost of incivility. How you show up at work means everything. As Maya Angelou, poet and Civil Rights activist, said, “I’ve learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel”. Saying ‘hello’ when passing in the corridor; making eye contact; respecting people’s time; being inclusive – small and socially acceptable ways of displaying civility in the workplace.

When civility is the norm, co-workers probably don’t even notice it because they are engaged, productive, creative, and happy at work. But the opposite? “Lowintensity deviant behaviour with ambiguous intent to harm the target” (Andersson & Pearson, 1999), not only jeopardises any workplace harmony but slowly chips away at the bottom line and workplace culture. Incivility may be hard to pin down. On its own, incivility may not amount to bullying or harassment, but it can have the same impact. Take texting while in a meeting – rude to some people, civil behaviour to others. Incivility and unchecked rudeness can lead to stress, an atmosphere where door slamming, exclusion and disregard for people’s time is normal. Equally damaging but more subtle behaviour can also equate to an erosion of morale, engagement, trust, and increased conflict. Through years of research at the McDonough School of Business at Georgetown University, Associate Professor Christine Porath found that incivility had a significant effect on motivation: 66% cut back on work efforts, 80% lost time worrying about what happened, and 12% left the job. Interestingly, the research shows that work performance decreased even for those who only witnessed incivility to co-workers.

Rudeness is contagious. Experiments undertaken to show the effect of merely reading words categorised as “uncivil”, (for example “obnoxious”, “impolite”, “interrupt”) resulted in those people being five times more likely to make significantly more errors, such as skipping or missing obvious information, and taking longer to make decisions. Teams exposed to rudeness didn’t share information as readily and stopped seeking help from their teammates. Clearly, incivility is not good for business and is wholly damaging for individuals – so why does it continue? What’s so hard about lifting someone else up rather than holding them down? Arguably professional success is often played out according to a competitive narrative – so being ‘nice’ doesn’t fit. Being civil doesn’t mean there can’t be conflict, disagreement, or debate. And most uncivil behaviour reflects a lack of self-awareness, rather than an intention to be hurtful. But civility isn’t simply the absence of rudeness; it is the presence of warmth, appreciation, and kindness. And these simple actions equate to a showing of respect – the factor employees want most from their workplace.

So, if you think your workplace is suffering from an attack of incivility, what can you do? If you’re a leader, walk the talk – say thanks, share credit, listen attentively, and acknowledge others – it’s infectious. Addressing small instances of incivility makes it clear that such behaviour is not acceptable and that there is only room for respectful interactions. As Doug Conant, former CEO of Campbell’s Soup Company said, “Be tough-minded on the standards and tender-hearted with the people”. Civility lifts people. Incivility robs potential. * Ann Skelton is a barrister and mediator practising out of Mediation Partners in Christchurch. She can be contacted at ann@mediationpartners.nz.

DECEMBER 2021

Class Actions Carter Pearce*

Carter Pearce from Bankside Chambers explains where we are at with class actions and how we got to this position. In any civilised society, some sort of procedure allowing groups of people to sue or be sued is essential. All societies are made up of individuals, but all societies also contain groups: people linked together by common social roles, legal rights or interests, cultural connection, or even just descent. Some societies are more “groupy” than others of course, and from the viewpoint of today’s individualistic society, medieval England was pretty groupy indeed. Membership of groups such as the parish, manor, guild, or religious order defined social identity to an extent unfamiliar to modern eyes. These groups were not legal persons who could be sued by corporate name, and thus representative litigation - where one or more group members sued (or were sued) on behalf of the whole - was common in medieval England.1 The class represented was usually a cohesive social group that existed independently of the litigation, and the named party’s standing to represent the group often went unquestioned.2 By the turn of the 18th century, individualism was on the march and representative litigation had become the exclusive province of Chancery. The common law courts dispensed “justice between man and man”,3 were unfriendly to joinder,4 and did not permit representative suits.5 But the equity courts sought to do “complete justice, and not by halves”,6 and thus demanded that all persons materially interested in a case be joined.7 Where those interested were too numerous to be made parties, the court permitted one or more members of the class to represent the rest. Over time, Chancery extended the use of representative suits to groups whose membership was arguably less “natural” and cohesive than the older medieval groups, such as shareholders (and creditors) of companies, mutual assurance societies, and trade unions. With the 19th century “merger” of the law and equity courts, the Chancery practice of permitting representative suits was carried over into the merged system and extended to cases that previously could only have been brought in the law courts. At the same time, the Chancery practice with its various quirks and inconsistencies was distilled to a one sentence rule included in the new codes of civil procedure. This

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happened first in New York, where a rule formulated in 1849 became the model for rules in other American states. Then in England, the rule as formulated in the schedule to the Judicature Act of 1873 became the model for rules in other Commonwealth jurisdictions, including New Zealand. Class actions emerged as a major feature of American litigation after 1938, when the law-equity “merger” occurred in the Federal courts. In England, however, the law “took a wrong turning”.8 While the appellate courts in the merged system initially exhibited a liberal approach to representative suits,9 the 1910 Court of Appeal decision in Markt & Co v Knight Steamship was read as confining representative suits to a relatively narrow field of cases, with a resultant “stultifying” of the law.10 In particular, suits for damages were thought to be out of bounds. In New Zealand too, the “straitjacket of Markt”11 hampered the use of representative suits for most of the 20th century. This divergence between England and America may partly explain the false but widespread notion that “class actions” and “representative actions” are fundamentally different beasts. Both names refer to the same thing: a proceeding in which one of the parties represents a class of other persons.12 Prior to the early 20th century the two names were used interchangeably on both sides of the Atlantic.13 The split in naming seems to date to 1938, when the US rule appeared under the heading “Class Actions” in the Federal Rules of Civil Procedure, and that name has stuck in the US ever since. That this has led some to imagine a difference in kind is testament to the power of labels to direct (and misdirect) thought. Having said that, the “class action” regimes in Australia and North America do have important features that were until recently either absent or uncertain in New Zealand. In those jurisdictions, the rulebook for class actions is contained in statute or detailed rules of court, whereas in New Zealand (and England), the “rules” are scattered across the case law. So, a good way to approach the question “Where are we at with class actions?” is to look at how far New Zealand courts have come in addressing those important features. Although a definitive list is hard to compile, some of the key features of a “modern-day” class action regime include (a) the ability to combine individual damages claims in one proceeding; (b) the use of an opt-out procedure to refine the class membership; (c)

tolling or suspension of limitation periods in respect of class members’ individual claims; (d) dealing with issues particular to individual class members via staged hearings; (e) active court supervision of proceedings, and in particular settlements; (f) remedial flexibility e.g. awarding global damages and/or directing any unclaimed amounts to a “cy-prés” recipient; and (g) a “common fund” approach to the costs of the proceeding,14 with the court exercising control over the amount of legal fees and litigation funding charges. Taking those in turn, in New Zealand (a) the ability to combine individual damages claims was confirmed at appellate level in the Feltex litigation;15 (b) the use of an opt-out procedure likewise in Ross v Southern Response;16 (c) tolling of limitation was dealt with by the Supreme Court in Feltex and the Court of Appeal in Cridge v Studorp,17 although some of the finer details remain to be worked out; and (d) staged hearings were also addressed in Feltex,18 although the attempt to actually conduct a “Stage 2” hearing in that case was abortive for want of funding.19 The Supreme Court gave guidance on (e) court supervision of proceedings and settlements in Ross v Southern Response.20 The High Court discussed (f) awards of global damages nearly 35 years ago,21 and it appears such awards have been made in the Employment Court,22 but the courts have not yet dealt with “cy-prés” awards. Finally, (g) a common fund approach to costs was going to be a live issue in Ross v Southern Response, but as that proceeding has now been settled,23 that issue will have to await another case.24

This brief survey reveals that the New Zealand courts have come quite some way towards establishing the framework for a “modern day” class action regime. However, many of the details remain to be worked out on a case-by-case basis, and that presents great opportunities for the Bar.25 Given the amounts that are often at stake in class actions, small procedural points can be worth appellate-level argument. And even in jurisdictions where much of the procedural detail is now prescribed by statute or rules, a lot of argument still occurs around the edges of the rules. As the UK Supreme Court recently put it, “Although the world has changed out of all recognition since the representative proceeding was devised by the Court of Chancery, it has done so in ways which have made the problems to which the procedure provided a solution more common and often vastly bigger in scale”.26 All indications are that class actions will continue to be a growth area in New Zealand law. Moreover, it is an area that rewards deep reading and an open mind, with an enormous wealth of case law stretching across jurisdictions and centuries. The development of the field in New Zealand calls for the expertise and focus that the independent Bar can bring. Just as importantly, class actions are far too interesting to be left to the “other branch” of the profession. * Carter Pearce is a barrister at Bankside Chambers in Auckland. He is instructed as junior counsel for the plaintiffs in the class actions Ross v Southern Response and Livingstone v CBL Corporation.

REFERENCES See Stephen C Yeazell From Medieval Group Litigation to the Modern Class Action (Yale University Press, 1987). am reminded of a comment Williams J made during the Supreme Court hearing in Southern Response v Ross, that Maori litigation has traditionally been representative “and no one even notices”; cases are brought by the chief on behalf of the tribe, and “the Courts don’t even bat an eyelid when the plaintiff happens to be the Chief of the tribe”: Southern Response Earthquake Services v Ross [2020] NZSCTrans 18 (15 June 2020). So it was, it would seem, in medieval English litigation. 3 In the words of Lord Brougham LC. 4 See Tippet v Hawkey (1793) 3 Mod 263, 87 ER 174 (KB). 5 Ross v Southern Response Earthquake Services (2019) 25 PRNZ 33 (CA) at [42]. 6 Knight v Knight (1734) 3 P Wms 334, 24 ER 1088 (Ch) per Lord Talbot LC. 7 Duke of Bedford v Ellis [1901] AC 1 (HL) at 8 per Lord Macnaghten. 8 Esanda Finance v Carnie (1992) 29 NSWLR 382 (NSWCA) at 394 per Kirby P. 9 See Duke of Bedford v Ellis [1899] 1 Ch 494 (CA), [1901] AC 1 (HL); Taff Vale Railway [1901] AC 426 (HL). 10 See Beck “Opt Out is In: The New Class Action Regime” [2019] NZLJ 356 at 357. 11 Credit Suisse v Houghton [2014] 1 NZLR 541 (SC) at [57]. 12 “Representative action” takes its name from the verb, “class action” from the object. 13 In England, for example, the 1909 edition of the Annual Practice uses “representative action” at p 169 and “class action” at p 171. The High Court of Australia used both terms, seemingly interchangeably, in Barnes & Co v Sharpe (1910) 11 CLR 462. United States authors up to the late 1930s referred to “representative suits” just as often as “class actions”: see for example Wheaton “Representative Suits involving Multiple Litigants” (1934) 19 Cornell LQ 399; McLaughlin “The Mystery of the Representative Suit” (1938) 26 Geo LJ 878. 14 Whereby the plaintiff’s legal fees and litigation funding costs (where applicable) are recouped from the “fund” recovered in any judgment or settlement, and the balance of the fund is distributed to class members pro rata. The net effect of this is to spread the costs of the proceeding across the whole class in exact proportion to the benefits each class member receives. 15 Saunders v Houghton (No 1) [2010] 3 NZLR 331 (CA) at [14]; Saunders v Houghton (No 2) [2013] 2 NZLR 652 (CA) at [84]; Credit Suisse v Houghton [2014] 1 NZLR 541 (SC) at [8]. 16 Ross v Southern Response Earthquake Services (2019) 25 PRNZ 33 (CA); Southern Response Earthquake Services v Ross [2020] NZSC 126. 17 Credit Suisse v Houghton [2014] 1 NZLR 541 (SC); Cridge v Studorp (2017) 23 PRNZ 582 (CA). 18 Credit Suisse v Houghton [2014] 1 NZLR 541 (SC) at [59]. 19 See Houghton v Saunders [2020] NZCA 638. 20 Southern Response Earthquake Services v Ross [2020] NZSC 126 at [64] – [89]. 21 R J Flowers v Burns [1987] 1 NZLR 260 (HC). 22 See Andersen v Capital Coast Health [2000] 1 ERNZ 256 (EmpC). 23 Subject to court approval, which at the time of writing has not yet been granted. 24 For what it is worth, this writer considers that the common fund approach has a solid pedigree at common law (or more precisely, in equity) and will likely be embraced by the New Zealand courts as it has been overseas. 25 The Law Commission will presumably deal with all the topics I have identified (and more) when it releases its final report on Class Actions and Litigation Funding in 2022. But who can say when - or if - Parliament will act on whatever the Commission recommends? In the meantime, courts and practitioners will need to apply the existing rule and continue developing the law on a case-by-case basis: see Ross v Southern Response Earthquake Services (2019) 25 PRNZ 33 (CA) at [39]. 1

DECEMBER 2021

Riding the Wave of Optimism – Being a circuit breaker for change Genevieve Haszard* In my sixth form year my dad insisted I take physics. His view was that even if I was going to be a lawyer and did not believe, at the age of 16, physics was necessary for this career choice, knowledge is power and one day it would be useful and important. Despite my considerable lack of aptitude there were a couple of important lessons I learnt in that year. Sticking at something you don’t find easy was one. The other, was about electrical currents. For some reason the concepts of currents, energy, resistance, and circuit breakers really resonated with me. This was both fortunate and serendipitous as some ten years later I was sitting in a conference room listening to an electrical expert explain how a switchboard had caught on fire and caused a large office block in the Melbourne CBD to be evacuated at considerable expense to the various tenants and building owner. I was working for the law firm representing one of the insurers. The partner I was working with was struggling to understand the expert’s explanation, so I explained it as I understood it. It was all about circuit breakers. The partner had a eureka moment and the expert asked me if I had studied physics, impressed at how I had followed his explanation and then explained in simple terms what had occurred. I subsequently left the world of civil litigation and

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now much of my work involves defending young adults as they navigate the criminal justice system. In many respects these young people sit on a circuit board, trapped in an ever-moving current they are unable to leave without a circuit breaker to redirect their energy into a new and positive direction and they are taught the skills to deal with resistance, both internal and external. In Mount Maunganui there is a programme using surfing as that circuit breaker – Tai Watea - Surf Therapy Live for More programme. Riding the wave becomes a metaphor for the lives of those on the course. There will be times when you hit the wave beautifully and ride it out, and other times when you will get dumped, but the trick is learning to get back on the board ready for the next wave which could be “the one”. It requires an optimistic outlook, a positive energy and being in the right current. The young men of Tai Watea are given an opportunity to find their true energy, connection, and in doing so find a new pathway or, as I see it, a new circuit. At the helm is Krista Dixon who personifies positive energy and unfailing optimism. She leads a team of compassionate, grounded youth workers, mentors, teachers and support personnel who are passionate and committed about what they do. As a result, the Tai Watea programme is achieving quite amazing outcomes for the young men who take part. The impressive statistics evidence dramatically reduced recidivism rates for the young men who complete the course, and numerous stories illustrate how life-changing this can be.

I recently had the privilege of observing and celebrating a young client graduating from Tai Watea. It was the result of a chance discussion. I saw someone who was at a crossroad in his life. There was something about him and I knew intuitively he simply needed pointing in the right direction with the right support. He needed a circuit breaker. During one of our meetings, I asked him if he would be interested having a look at the course and he said he would. I made the call there and then. Sean McGuinniety, one of the course leaders, came straight over to my office. The first sign of commitment my client showed was his willingness to wait for Sean to arrive. He showed further commitment and tenacity managing some challenges during the course, but he got through and my young client graduated and was awarded the top leadership prize. He led the haka with passion, pride, energy, and a beautiful self-assurance. As a result of his work on the course he was discharged without conviction. No conviction meant one less point of resistance for this young man so he could continue this positive journey and be the leader he has clearly shown he can be. This week he started his first job with long term prospects which means he is working regular hours, with regular pay and with the very real prospect of one day owning his own business. Tai Watea was my client’s circuit breaker. His energy is now directed positively, and he has momentum. There is less resistance. He is riding the waves of optimism coming his way with the on-going support of Tai Watea and his own developing self-belief. He is also better able to deal with the waves that might dump him. He now has the ability to get back up and be ready for the next wave and keep the forward momentum. But I am a realist. Not all stories can be successful. I have had other clients who haven’t quite made it through overwhelming struggles with trauma and addiction. Fortunately, there are initiatives being developed in the criminal justice system which respond to the fact that many defendants have underlying trauma which has resulted in drug and alcohol addiction. These initiatives are based on a therapeutic sentencing ideology which is statistically more effective than a purely punitive response. However, what is absolutely clear is that the best chance of reducing offending rates is to provide

opportunities like Tai Watea early to those vulnerable to getting caught in the criminal justice system. As part of this early intervention, there are opportunities for many of us to proactively support those who may not have someone in their corner to direct them positively. Tai Watea is one example of a number of amazing programmes run throughout the country that offer an opportunity to be the circuit breaker, to create new positive energy and stories. There are many of us – teachers, sports coaches, lawyers, extended whanau – who have the opportunity to help re-direct those that may be on the wrong circuit through no fault of their own. In my client’s case, it was taking the time to ask him what his aspirations were and a fortuitous discussion about a painting in my office that took his interest which let me know he was wanting to make a change. From there it was acting on the moment. It was just a phone call, but the outcome has been quite profound. How many of us have those opportunities every day? A positive word? A moment to really engage? A phone call to see if a connection can be made? It costs nothing but a little bit of time. I will keep paying forward the opportunities I had because I had parents who challenged me and were able to hold a line when needed – to keep me heading on the right circuit even when I was probably giving them some pretty negative energy in the process. So, if you can, be the circuit breaker and support organisations like Tai Watea that are doing the mahi and changing lives for the better of all of us. * Genevieve Haszard Is a barrister based in Tauranga and is the NZBA representative on council for the Bay of Plenty. She has over 20 years experience in the legal profession and practices in both the criminal and civil jurisdictions

DECEMBER 2021

Family Mediation

– is it working for dads? Barbara Relph* Barbara Relph spoke to Nurit Zubery, a mediator and LLM student at the University of Auckland, about a thesis study she completed in 2021 on the experience of fathers in the mandatory family mediation process. Zubery spoke with 13 men about their experiences of the process. Nurit Zubery believes that there is a problem with the way the family mediation system relates to men, and the misconception about how men ‘are’ in divorce. Zubery’s qualitative study at the University of Auckland Law School was supervised by Professor Mark Henaghan. The study comprised interviews with 13 men about their experience of the family mediation process to discover why and how the system was failing them and, just as importantly, why it mattered. She discovered four key experiences that negatively affected fathers’ view of the process. 1) Strong grief reaction Zubery says that men experience a more severe grief reaction than women, partly because women initiate over 70% of separations. In the 1980s, when women started returning to work after having children, they rebelled against continuing to be responsible for household and family tasks, and traditional gender roles, resulting in a sharp increase in separation and divorce rates. This is now widely known as the “gender revolution”.

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According to Zubery, statistics showed new phenomena for men arose as a direct result of divorce. Rates of psychiatric hospital admissions increased (nine times more likely than for women), involvement in motor accidents for men doubled in the six months following divorce, they are nearly five times more likely to commit suicide than women after divorce, and the rates of substance abuse and illness such as cancer, heart attacks and diabetes all increased for men. Primary contributing factors are the loneliness, despair and isolation experienced strongly by men. According to Zubery, men find separation tougher than women, and many never recover. Her view is that this is largely down to how society has historically trained men – from childhood – to control their emotions and conform to a masculine gender norm where only powerful emotions are permitted to be expressed anger, pride, and contempt. Another factor Zubery thinks causes men to react more severely is that, unlike women, they lack a good support network. Even men with very good friends don’t tend to share emotional distress with them but rely on their partner for all emotional needs. This multiplies the loss for men in that they not only lose their relationship and the future aspirations associated with it, but any

...[M]any men never complete the full grief process to arrive at acceptance. Their grief is often expressed through anger or by bargaining with their former partner... through a long, drawn-out, legal process ... emotional support they had within the relationship vanishes. As a result, many men never complete the full grief process to arrive at acceptance. Their grief is often expressed through anger or by bargaining with their former partner with the hope of repairing the relationship, or even through a long, drawn-out, legal process which can be symptomatic of an unwillingness to let go of the relationship. 2) Fatherhood has been devalued

say that frequently the wife will cry, and the mediator will be protective of her. Everyone is upset, but the woman’s ability to express her emotions in that way is where it starts to go wrong for men and, says Zubery, they are immediately on the back foot often even before the mediation starts. They believe this leads to them being judged as a “bad person” by the mediator, resulting in the mediation process being skewed in favour of the person expressing their emotions. Men attending family mediation then behave more aggressively through their belief that the system is not fair. 4) Powerlessness The most prominent experience in the study was powerlessness, says Zubery. Every man interviewed believed they were powerless in the mediation – or court – process. Zubery suggests that part of this feeling may be due to the change in the balance of power in the relationship. During relationships, some men typically exercise dominating strategies against women. They lose much of this power following separation.

The second key experience identified by Zubery is that fathers receive a subtle but strong message that they are not as important as mothers. This starts with the different message mothers receive that nothing bad will happen to the children if they are raised only by the mother. There is strong evidence of the benefit for children in having two parents, and research shows that separation itself does not necessarily affect the outcome for children. Rather conflict between parents and the lack of a meaningful relationship with both parents does. “Meaningful” is involvement in everyday activities such as school pickups, sport, bedtime, mealtimes or at any time where there is an opportunity for emotional engagement. Zubery says that, statistically, children raised with absentee fathers are more likely to be involved in youth crime (85% of youth in prison have an absent father), have poor academic performance (71% of high school dropouts have an absent father), experience homelessness (90% of runaway children have an absent father) and are more likely to be victims of abuse, have higher levels of depression, suicide, behavioural problems, substance abuse and teen pregnancy. 3) A belief that the system is biased All men in Zubery’s study expressed some dissatisfaction with mediation processes, citing mediator or process bias against them. Family violence was one prevalent theme where men felt falsely accused of physical or psychological abuse by their former partners. They describe arriving at mediation, often soon after separation, angry and frustrated. They

When put in a situation where they lack control, people are thrown into “non-control distress”, an uncomfortable feeling often resulting in desperate attempts to regain power and control. Men in that situation may react with heightened conflict with their former partner, instead of collaborating to achieve compromise. So, what can be done? Implications for mediators Zubery says that while this is undoubtedly an emotionally charged field of mediation, it is also one that has the transformative potential to change the quality of the relationship between parents, build trust and new communication channels, enabling long term co-parenting in the best interests of the children. Zubery suggests that first and foremost, mediators must be aware of the fragile mental state with which fathers are likely to arrive at mediation, and of men’s tendency to express emotions through anger. Mediators may need to consider whether they are being judgemental and whether they need to be supportive of a particular father to achieve better outcomes.

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Mediators may need to set aside some unconscious bias, comments Zubery. She considers that mediators should use reflective practice, supervision, and peer support groups to identify their own reactions to gendered behaviours and unconscious bias.

Some of the men interviewed in the study described their issues as being overlooked in mediation in the interests of efficiency. This often resulted in entrenchment and refusal to reach agreement. Zubery says that exploring the past is hugely important in family mediation as it often enables insights into the behaviour of the other party and helps parties achieve closure. Being heard and understood engenders commitment to the process, enhancing the likelihood of resolution. The classic tools used in mediation such as active listening, reframing, empathising and finding common ground are invaluable. According to Zubery, studies on family mediation found that a problem-solving style, rather than a settlementoriented style, achieved better outcomes. Problem solving style is characterised by asking many questions, identifying parties’ needs and eliciting their solutions. The use of reflection leads parties to less rejection of the other parent’s perspective and to more long-lasting outcomes. Zubery says that other studies found that the use of private meetings between the mediator and each party increases the hopelessness felt by parties. Further, directing strategies such as enforcing behavioural guidelines and the mediator providing their own opinion led parties to feel the mediator does not respect them.

The professional training of lawyers orients them towards a settlement-seeking rather than a relationship-building approach, but the relationship-building approach has proved to be more beneficial in family mediation. Unlike litigation, mediation aims to rebuild trust between parents, teach new communication skills and establish a new, sustainable, co-parenting relationship while creating a sense of empowerment by finding the best solution for the children. These outcomes as well as the underlying values of mediation – respect for humans and their capacity to do good – were unfortunately not always present in the experiences of the study’s participants, according to Zubery. The issue of family violence, which is prevalent within the population of high conflict separating couples, undoubtedly has an effect on the mediator’s perceptions and behaviours towards fathers. There is no doubt that victim safety must come first. However, it is possible that some of the anger and frustration of fathers can be avoided or reduced by mediators showing respect and recognition for fathers. Zubery considers that improving family mediation must come with a sea change in our social and legal attitudes towards the family structure. Fathers have been proven capable of being good parents, yet the lack of recognition for their abilities too often creates a self-fulfilling prophecy and results in fathers who do not fulfil their potential. Zubery notes, “The legal community has the power to nurture such change and shift the social and legal discourse. Acknowledging that the welfare of children depends on reducing and healing conflict between parents, and that changing the attitude towards fathers to reduce the level of anger and frustration experienced by many fathers, will be a first step in the right direction.” Zubery acknowledges that this study may have its own bias towards men who are unhappy with the family mediation process since they self-selected for involvement. This does not, however, imply the findings are invalid, rather if one father is dissatisfied, many others will be too. * Nurit Zubery is a family mediator, practicing in Auckland, focussing on collaboratively facilitating parents to resolve their differences for the benefit of the family www.beyondconflict.co.nz. Barbara Relph is a professional writer, editor and proofreader – www.barbararelph.com.

DECEMBER 2021

Kōrero – Chambers News Lambton Chambers 2021 marked the 25th anniversary of Lambton Chambers. The Chambers was established in 1996 by David Collins (now the Honourable Justice Collins of the Court of Appeal), Pam Davidson and John Morrison (both of whom are still members). Since then, it has steadily grown in number from its founding three members, and now comprises 16 barristers and one junior barrister, encompassing commercial and property litigation, public law, tax, family, employment, insolvency, medio-legal, maritime, aviation, insurance, construction, professional liability, sports law, arbitration and criminal law. In commemoration of the 25th anniversary, this photograph was taken on 17 August 2021 in the Old High Court, Wellington, by Catherine Cattanach, president of the New Zealand Institute of Professional Photographers. While Covid prevented the official celebration from proceeding this year, the occasion will be marked in 2022.

FortyEight Shortland Chambers FortyEight Shortland, in Auckland, is focused on civil, commercial and regulatory law. The members of the chambers are pleased to welcome three new members to chambers, Kathryn Lydiard, Kishen Kommu and Tim Rea. Kathryn focuses on civil litigation and has appeared before the High Court, District Court and several Tribunals.

She has experience in a wide variety of legal matters, including leaky building litigation, construction adjudications, contractual disputes, and insolvency proceedings. Kishen specialises in providing strategic advice and advocating for clients in litigious matters across a wide range of areas, including complex construction disputes, acting for bodies corporate in disputes under the Unit Titles Act 2010, and contractual disputes. Tim has over 25 years of commercial litigation experience, having completed degrees in Arts and Law at Canterbury University in 1995. Prior to commencing practise as a barrister sole in 2016, Tim was a litigation partner at Glaister Ennor for eight years. Tim’s practice areas include disputes involving contract, negligence, Fair Trading Act issues, and many propertyrelated areas. The law firms in which Tim worked before going to the bar had a strong emphasis on property law. Tim has also been involved extensively in building disputes and has acted for various parties in claims involving residential and commercial construction, including property owners, builders, and manufacturers.

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Kate Sheppard Chambers Kate Sheppard Chambers has grown considerably this year. The chambers was established in December 2020 by Charlotte Griffin and Isabella Clarke and now has eighteen members. Annabel Markham and Arla Kerr were announced in May 2021. In July KSC welcomed Dhilum Nightingale, Hannah Cuthill, Rachael SchmidtMcCleave, Dr Rhonda Powell, and Setareh Stienstra. In August, Jennifer Wademan, Lizzy Wiessing, and Megan Jaquiery joined. KSC has recently announced six further members: Dr Alison Gordon, Clare Lenihan, Elana Geddis, Megan Ball, Dr Petra Butler, and Sarah Shaw. The members of Kate Sheppard Chambers are located from Whangārei to Invercargill and have expertise in a broad range of areas. More details about the members of Kate Sheppard Chambers can be found at: https:// katesheppardchambers.co.nz/barristers/. The inaugural Kate Sheppard Chambers Scholarship for research relating to women and the law has recently been awarded to Cait Hollywood. Cait’s research will consider alternative ways of giving evidence in sexual violence proceedings. Specifically, Cait intends to analyse the criminal justice process for vulnerable witnesses in relation to the Sexual Violence Legislation Bill 2019 currently before Parliament. Kate Sheppard Chambers is excited to make this connection with Cait and to watch her promising litigation career unfold.

The chambers is a boutique set, concentrating on complex legal issues and cases. Our specialist areas include public law, human rights, medicolegal, employment law, regulatory and commercial litigation and commercial crime. We also specialise in conducting independent reviews, inquiries and investigations across all areas. We practice digitally and have recently moved to new premises at Britomart – 152 Quay St, Auckland 1010.”

Bridgeside Chambers Following the elevation of senior Chambers member Jonathan Eaton QC, Bridgeside Chambers members turned out in force to celebrate the new Judge’s swearing in.

Britomart Chambers “Britomart Chambers recently welcomed Maria Dew QC and Josh Hansen, following shortly after Nick Williams joined from Meredith Connell. The chambers was founded in 2017 by Michael Heron QC, Marc Corlett QC, Paul Rishworth QC and Erin McGill. In 2019 Charlotte AgnewHarington, employed barrister, and Ben Morgan, law clerk, joined chambers. In 2020 Britomart Chambers became home to online dispute resolution provider Immediation New Zealand and Henry Moore joined. The Chambers is also home to Agreeable, [https://agreeable. co.nz/about/] which has provided online legal agreements and services since 2020.

Pictured left, top to bottom, Maria Dew QC, Josh Hansen and Nick Williams

DECEMBER 2021

Back Row L – R Kerry Cook, Phil Shamy, James Rapley QC Front row L – R – Helen Coutts, Alayna Limmer, Simon Shamy, Glenn Jones, David Caldwell

Chambers news Interested in being featured in our next At the Bar magazine? We are happy to receive articles which share items of significance to our members and their chambers. If you have any news about new members, or a special anniversary/event, elevations to the Bench, moving premises or other notable matters, we would be happy to consider including these. Please include images. Please email us with your news. nzbar@nzbar.org.nz

Book Review: Ngā Kete Mātauranga Jacqui Thompson*

Ngā Kete Mātauranga: Māori scholars at the research interface Jacinta Ruru & Linda Waimarie Nikora (eds) Otago University Press (February 2021) Writing a book review is a very subjective experience. And that is particularly so when you do not have a lot of experience or a real connection to the subject material, which is the case with this review. I feel totally unqualified to review Ngā Kete Mātauranga because I am not an academic or Māori, and also in part, because of my relatively privileged background.1 However, I am fascinated by this book and the insights it offers. And I hope that fascination will excuse the presumption of writing this review. The book offers a glimpse into a world that I am light years from understanding, and probably can never do so, as I lack the cultural context. I have therefore tried to keep the review descriptive and not to interpret meanings. Ngā Kete Mātauranga is a collection of stories from 24 Māori scholars. The authors describe their own journeys into the world of incorporating Māori knowledge into research in a holistic way. Most of the scholars – but not all - are based in universities around the country. I sent a draft copy of my review to one of the coeditors, Professor Jacinta Ruru, and she was kind enough to respond. She said that the editors had in mind three audiences when writing this book; “1) Māori: to inspire whānau to dream big for their tamariki, that they can go to University and love any discipline and be successful. 2) Tertiary leaders/institutional bosses because the work to make the research sector more welcoming of Māori cannot and should not be the work of Māori scholars alone. To this end we provide eight key messages in conclusion.2 3) The nation: we really really wanted this book to be for everyone, for anyone interested in Māori experiences by Māori who are highly successful across a range of different disciplines to collectively see the strength of our collective experiences and

our hope and hurt and optimism for the future (the rollercoaster of experiences).” The book itself is beautiful. The photos by Grant Maiden are stunning. Maiden specialises in photographing people, and his skill in this area clearly shows. Each of the subjects is photographed in a place or with people, pictures or objects that mean something to them. The authors then explain the background to the photo. Often, they are in the places they grew up in as children, moved away from for jobs or family, but were drawn back to as adults. Each picture provides some insight into why and how the authors have developed into who they are. Throughout the book there are drawings contributed by artist Heramaahina Eketone. These show Māori symbols, each telling a story in its own right. Some of them are simple shapes such as the spiral and some are more complex, such as te kete-aronui. Each of them is placed in context of its meaning or relevance. The use of the term scholar is very apt. The authors are not just “academics”, in the sense that they are divorced from everyday life. Their learning informs their relationships and aspirations. But at the foundation is a strong identification with the place from where each scholar comes, and their connection to their whānau, hāpu and iwi. Importantly, as you read through this book, the theme of the loss of whenua carries both poignancy and anger. The world of the Māori academic is not an easy one. According to Professor Ruru, while she has loved her job, it has been hard in a racial way, and intellectually lonely.3 When she started her career as a lecturer, there were about ten Māori teaching in five law schools across the country. Things have not improved with the increase to six law schools. Across all the disciplines, the tertiary sector employs a static 5% Māori. This book therefore has an important role in building understanding and bringing about needed changes in the tertiary sector, where tensions between Māori academics and Universities have been on the rise. In 2020, Waikato University commissioned an independent review into claims of racism and flaws in an employment process undertaken by the leadership. The Faculty of Māori and Indigenous Studies sent a letter, a statement under Protected Disclosure to the Secretary for Education. The report made some key findings that will not surprise anyone in any institution or company or organisation. It said:4

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“[O]n the one hand, the University markets itself and is perceived as having and practicing a deep commitment to Māori; while on the other, its structures, operations, world view and knowledge base arise out of our settlement history, embody or adhere to western university culture and tradition.” The report also said that there was an overwhelming account of daily negative interactions, and systemic pressures, processes and events, that had been repeated over many years. Powerfully it made the comment that “… [t]he emotional tenor of the submissions, was of individual and collective exhaustion. Yet hopeful…” Back to the book. I stumbled across it after reading one of the essays online. Rāhui I roto – reading the signs on a journey into Māori law is the story of how Māmari Stephens became a lawyer and how she gained her understanding of tikanaga Māori. It is a journey into law and mātauranga. It is beautifully written and evocative of growth from childhood to adulthood. If like me, you are happy to read the stories in any order, this is a very accessible place to start, and one that encourages all to learn about Māori knowledge by pointing out the understanding we already have. Her story is poignant, but it carries a sense of coming home. I was surprised to find that some of the most interesting stories were from people who were in disciplines that I can’t even pretend to understand, such as economic theory. Dr Shaun Awatere is Senior Kairangahau Māori at Landcare Research New Zealand. His research questions whether the costbenefit analysis is appropriate for environmental decision-making in Aotearoa? Dr Awatere’s view is that quantitative economic measures cannot absorb Māori values into econometric models, as they do not accommodate the subjective positioning of iwi and hapū.5 Ultimately, economic modelling techniques are always deficient because of the difficulty of capturing and anticipating all impacts and valuing them appropriately:6 “Hence it is appropriate that other perspectives be considered. For moral reasons, ethical, social, and cultural considerations should be examined equally alongside economics in environmental decisionmaking. There is no harm in using underlying moral considerations to guide decision-making on resource allocation.”

Finding Tahu is written by Dr Tahu Kukutai, who specialises in Māori and indigenous demographic research. I am not going to spoil the story of who Tahu was and why the author wanted to find her. But this is an example of how the smaller stories within the larger articles add immeasurably to this book and to the understanding by the non-Māori (even though this understanding will always be abstract at best). Dr Kukutai has been working on iwi projects that have demonstrated the limitations of mainstream demographic theory. She asked the question of what the true population for Māori looks like, and how the data practices and systems can be refashioned to centre around Māori concepts, mātauranga, tikanga and priorities. In doing so she hopes to “travel across dual spheres of dissection and connection, without getting lost.” It is impossible to cover the 24 scholars in the space of this review. From Associate Professor Ocean Ripeka Mercier van Berkel, who trained in physics and now looks at the connection between mātauranga Māori and science, through to political scientist, Maria Bargh, they suggest for non-Māori, a different and viable way of seeing the world. My favourite chapter? That it is easy: “The Science of Māori Astronomy” by Professor Rangi Matamua. Who doesn’t love stories about the stars? It is the kind of tale that makes you want to extend an instant dinner invitation, so you can learn more over a glass of red wine. This book was challenging to read, particularly for someone trained in a discipline that wants concrete evidence in written format and applies a standard of objectivity based on a bus in South London7. But the collection of stories gives me hope that there are better ways of thinking about the future and organising ourselves in Aotearoa New Zealand — ways that will include valuing people and the environment, alongside economic benefit. These values and their weighting might significantly change our decision-making for the benefit of all. *Jacqui Thompson is the Executive Director of the NZBA.

REFERENCES An excellent review has been written by Dr Tara McAllister, “Disturbing the Discipline: Reflections on Ngā Kete Mātauranga” https://pantograph-punch. com/posts/nga-kete-matauranga, (accessed 11/12/21). 2 Jacinta Ruru & Linda Waimarie Nikora (eds) Ngā Kete Mātauranga: Māori scholars at the research interface (Otago University Press, 2021) p276 et seq. 3 Above at n2, p15. 4 Hon Hekia Parata and Sir Harawira Gardiner “Independent review into public claims of racism at the University of Waikato” (University of Waikato, 2020) p6 https://cms.its.waikato.ac.nz/major-projects/taskforce/?a=629577 (accessed 11/12/21). 5 Above at n2, p78 6 Above at n2, p79 7 The man on the Clapham omnibus – the hypothetical ordinary or reasonable person, against whose behaviour we measured others. 1

DECEMBER 2021

Is it Time to Trust Your Gut? Matt Pedersen*

Hard decisions are commonplace in the time of Covid-19, but should you rely on analytical reasoning or trust your intuition? Matt Pedersen, Strategic Sales Lead at LexisNexis, weighs the balance in this advertorial We all know what it means to “trust your gut feeling”. It’s instinct or intuition that you can’t explain, but you just feel like it’s right. But what is that feeling based on? And is it reliable? In the world of law and legal decisions, evidence is primary. You must focus on presenting the logical facts in relationship to the case, and an orderly, logical approach is encouraged. However, you’ll also be familiar with that intuitive spark which wakes you up at 2am with an “Aha!” moment. You might be inspired to change the course of questioning, place doubt on the defence or prosecution, introduce a different emotion to the situation… and all because your gut suggested it. The logical approach I’ve first described is called analytical thinking. When you’re thinking analytically, your brain processes information in a logical and step-by-step way to find a solution to a problem. This happens as you consciously gather information, divide it into small parts and then examine those parts to identify connections or trends. After you have evaluated the individual parts, formulated theories about the problem and then tested the theories, you can develop and evaluate possible solutions. The “Aha!” approach is intuitive thinking. This means going with one's first instinct and reaching decisions quickly based on automatic cognitive processes. Thanks to the Covid-19 pandemic and associated restrictions, New Zealanders are grappling with the mechanics of both analytical and intuitive decisionmaking like never before. This ‘upside-down world’ we’re all navigating under the Alert Levels is neither simple nor planned out, and it’s not easy to reason through the survival-based decisions we’re all forced to make. As we balance personal wellbeing against professional delivery requirements, schooling, disconnect from family and friends, career choices, holiday plans (or not), we'll be dealing with more personal "gut feelings" than ever before. We’re all making far more tough decisions than before Covid-19, and we can’t avoid involving our emotions and feelings in the process. Our emotions and feelings might not only be important in our intuitive ability to make good decisions. They may actually be essential.

It’s hard to think clearly when we’re bombarded with data, especially when the format is foreign to us. External stressors such as rising social division plus complex systems like the new Covid-19 Protection Framework with its traffic-light levels and vaccine passports can overwhelm our brains’ ability to process information analytically. Rest assured that there is plenty of evidence you can rely on your gut to carry you through. This dense network of nerves is sometimes called your ‘second brain’ because it communicates extensively with your brain via the gut-brain axis, using many of the same neurotransmitters to affect things like your mood. Neuroscientists suggest what you experience as gut feeling or intuition is actually your subconscious brain identifying a pattern. Your subconscious is continuously processing information on a level beyond your awareness, and it’s excellent at predicting future outcomes based on past experiences. The challenge, then, is: Do we consciously favour analytical thinking or intuitive thinking? Or do we allow the two to work in tandem for us as we navigate this dynamic world? As we continue to realign our daily lives, with our business decisions, our family and friendship status depending on the choices we make from an analytic or intuitive basis, I take strength from an actor I always admired – Sir Anthony Hopkins.

“Love Life Because What More is There?” I know, from speaking with NZBA members and legal professionals, that the “jury” is struggling with Covid19-related stress as much as the general public. If you feel like your brain is overloading under the new normal, you’re not alone. It’s important to draw on the supports we have around us. We consider LexisNexis to be that support for NZBA members’ practices and as we go about our lives in this environment and upholding the Rule of Law, we know that tough decisions are being made that affect us all. The team at LexisNexis are available to talk and support, so please do get in touch with me or any of the team if you feel the desire to let off some steam or just chat – call us. *This article is supplied by LexisNexis on behalf of the author. The opinions may not represent the opinions of LexisNexis. This document is for educational purposes only

REFERENCES • matterapp.com/skills/analytical-thinking • When to Trust Your Gut Alden M. Hayashi From the Magazine (February 2001)- Harvard Business Review • What is Gut Feeling - Updated On: 24 Feb 2018 By Akash Peshin - What Is A Gut Feeling? » Science ABC • Analytical Thinking: What It Is and How to Master It (magneticmemorymethod.com) • Intuitive Thinking • Instinct vs Intuition. When to Trust Your Gut Feeling (heartofsubstance.com) • The Science Behind Gut Feelings: Why do we have them and should we trust them? (concinnity.uk) • Analytical Thinking - The Peak Performance Center

DECEMBER 2021

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Planning for the future during a pandemic MAS outline the importance of sticking to your long term plan to reduce stress and uncertainty. For many of us, the global pandemic and varying alert levels across the country have raised a lot of uncertainty around the immediate future. In a time of crisis, it’s understandable that your priorities may change as your circumstances shift. However, it’s clear that the virus will be with us for some time to come, so as we adapt to these new circumstances, our financial plans need to adapt as well. When alert levels change it can be challenging, but it’s important not to lose sight of your long-term financial goals. In a 2020 study from North Carolina State University, proactive planning – when people engage in planning for the future – was proven to reduce signs of stress by not only giving you something to work towards in the present, but also something your future self will thank you for.

Set goals and make a plan

When it comes to preparing yourself financially for the future, setting goals and creating a plan will help to keep you on track towards what you want to achieve. Your goals will depend on what stage of life you’re at – maybe you want to get married, buy a house, or retire in the next five to ten years. Meanwhile, your plan to achieve those goals is something you should regularly review as your circumstances change. It’s possible that your short-term plans and finances have changed due to the pandemic. If that’s the case, it’s a good time to revisit your long-term goals, to make sure that you’re staying on track to achieve them.

Speak with a financial adviser

If you’re unsure about where to start, speaking with a financial adviser is a great way to receive advice specific to your situation. A financial adviser will review your personal circumstances and objectives with you, and use the information you provide to offer advice. Their services can usually be accessed over the phone, so you can receive advice even if you’re prevented from visiting people in person due to Covid lockdowns. When choosing a financial advice provider, it’s helpful to know what you want to achieve from the advice you receive, and then make sure you pick a provider that meets those needs. Financial advisers are only licensed to offer advice on areas they are competent in, and some will specialise in certain areas. You also have the right to ask your adviser how they are being paid, and whether this is from fees you pay, or from commissions paid by companies whose products are being recommended to you. Be prepared to meet

with a few different advisers before deciding who will best meet your needs.

Review your investments

If you have an investment like KiwiSaver that you plan to use for your first home or retirement, your goal and timeframe will help to determine how much you should be contributing, and which fund is right for you. Events like the pandemic can affect markets, particularly in the short term, so it’s important to consider how much risk is appropriate for you as you select your fund. Websites like sorted.org.nz have a range of information and guides to help you get started. You may decide to stay with the fund you’re already in, but it’s helpful to know what your options are, and know that it’s simple to switch if you find something that suits you better.

Review your insurance

It’s a good idea to review your insurance at the same time, to make sure that you have the right protection in place to ensure your financial plan can stay on track even in the face of the unexpected. If something were to happen that impacted your ability to keep working, would you be able to keep up your current lifestyle and reach your goals despite the loss of income? And if you have a family that depends on your income to afford mortgage repayments, children’s schooling, or other necessities, would they be able to achieve financial freedom without your contribution? If you’re unsure about the answer to those questions, we recommend seeking advice to determine whether life and income insurance might be right for you. Planning for the worst can be a difficult conversation, but by making insurance a part of your financial plan, you can remove worry about your and your family’s financial future if something unexpected were to happen to you.

Regularly review your financial plan

Once you have your financial plan in place, we recommend reviewing it again regularly, and whenever your circumstances change. While the pandemic has caused a lot of uncertainty, one thing about the future is guaranteed - you’ll thank yourself for taking care of your financial plan now. It is free to join MAS. For information on this and the other benefits of being a Member, please contact Peter Lycett at peter.lycett@mas.co.nz or go to www.mas.co.nz *This material was supplied by MAS. The NZBA does not recommend or promote, nor provide financial advice on any of the matters in this article. Members are advised to seek independent advice.

DECEMBER 2021

Uncoupling, An Insider’s Guide to Separation in New Zealand Barbara Relph*

Barbara Relph talks about a book she wrote on separation and how to survive it. Impossibly complicated with far reaching tentacles, I know from experience that separation from your spouse is indeed a tricky business. Clients face many legal and financial decisions outside their sphere of knowledge or competence while working through a maelstrom of emotions and change. What, for example, is the effect of a family trust on relationship assets? How is a claim for economic disparity calculated? And in the most basic terms, what are your legal rights? I began my three-year journey to financial separation with no stable income source and no established career path – I was frankly in more than a bit of a pickle. Popping out the other side in 2020, midpandemic, I had the makings of an unexpected and very different life. I have recently published a practical, plain English guide to help others step through the stages of separation, written specifically for the New Zealand market. Following the premise “do as I say, don’t do as I did”, Uncoupling, an insider’s guide to separation in New Zealand addresses the issues faced by anyone coping with separation. I appointed Antonia Fisher QC to act for me, and at our first meeting she said to me that “the real pain of separation begins now”. I can testify that whatever went on before was just the warm-up as the emotional roller coaster rode to the top of the hill. The constant pressure of not having clarity about your financial position while haemorrhaging professional fees through months of just waiting uses a lot of your personal RAM. From the perspective of a client of the system, despite generally being pragmatic and sensible, I found myself asking my barrister questions she couldn’t possibly know the answer to. Reflecting on how frustrating this must be to practitioners of family law, a key point in Uncoupling is that your lawyer is not a counsellor (or a mind reader). Apart from being sensible, I am also highly organised. Even so, I didn’t have all my information in order, nor did I present it to Antonia in a logical sequence. Why? I didn’t think about it. Again, in my book I recommend to future clients to be organised, write their relationship

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history down in a clear progression of dates and facts, and have key information and documents on hand. Having been loosely involved in the legal world for much of my working life, I thought I’d be pretty good at being a client. I wasn’t. I angsted and I second-guessed. Antonia almost reprimanded me – “You hired me to give you my expert advice. When you get that advice, I recommend you take it.” She was right. I now recommend to clients, in Uncoupling, that they take the advice of their lawyers unless they have a good reason not to. Still on the law, I researched and collated an outline of the law in New Zealand as it relates to the two main areas of conflict in a separation – division of property, and children. I also compiled an explanation of the paths to resolution available in New Zealand, noting that many resolutions involve more than one path. Outside of the legal process, there are so many opportunities for growth through separation. Finding a way to communicate with your former partner to avoid escalating conflict as you work towards financial separation is a big one which can truly affect the success or otherwise of not just negotiations, but your future parenting success, regardless of how old your children are. With lives turned upside down, often in almost every way, Uncoupling considers what the next phase of life might look like, not a subject for a chat with your lawyer. This might include budgeting and good financial management, assessing career options and changes, and the social side of the “new you”. Taking care of yourself and taking control of your new life includes avoiding travelling the same path again – and protecting your assets should you find yourself in a new relationship. Why is a new will is needed? What is the value of a Contracting Out Agreement? The widely publicised overburdening of family lawyers with new clients seeking advice on separation and divorce post-Covid will no doubt experience a further surge this Christmas, as with every Christmas. Tis the season. If you have clients working through the uncoupling process, at any stage of a separation, Uncoupling is an excellent first resource. If I do say so myself. * Barbara Relph is a writer, editor, and proof-reader with more than 25 years’ experience. She can be emailed at barbara@barbararelph.com/ . Email Barbara to purchase Uncoupling, an insider’s guide to separation in New Zealand at the discounted price of $25 (RRP $35). Uncoupling is also available from www.uncoupling.guide or from Paper Plus or independent bookshops. www.barbararelph.com.

Coping with ambiguity now Covid’s here to stay This article is reproduced with permission from Newsroom where it was first published online on 13 October 2021, and with permission of its authors. A new and confusing system is now in place thanks to the uncertainty of Delta, and many are feeling more stressed and anxious than ever. Dr Dougal Sutherland, Gaynor Parkin and Dr Amanda Wallis have some practical suggestions on small but helpful ways to help regain some control. Last week saw our new Covid-19 roadmap unveiled and, with it, our sense of certainty is up in the air. Previously we had clear markers to measure our progress in the fight against the virus and a sense that we had control. Dropping case numbers would reliably lead to alert levels shifting, and we could count on life returning to “normal” when the finish-line was in sight. Now, a new – for many of us, confusing – system is in place. Your emotional reactions are natural and normal. Uncertainty makes it tricky for us to choose which decisions to make or what to do. It’s completely normal to experience uncertainty as upsetting, confusing and frustrating. While ambiguity of “if” and “when” exists in nearly all domains of our life, this ambiguity is now pervasive, whether you’re in Auckland or Invercargill. Plus, there’s a heightened awareness that life is about to become a lot more complicated. With it, that connected sense of “we’re all in this together” may start to fray. As restrictions ease, we are likely to see more flagrant rule-breaking or people “testing the limits” of our alert levels. You’re not alone if, as a result, you’re feeling more stressed or anxious than ever. This sense of unease, or “languishing”, is our natural response to an uncertain environment. We know that having a sense of control over our lives is critical to our wellbeing. When control is taken away from us, we can feel unmoored and apprehensive. Our apprehension is especially heightened when we don’t have clear goals to work towards, or we feel like the outcomes of those goals are totally out of our hands. On the flipside, it’s important to acknowledge that the news is not all bad. For Aucklanders, the joy of reuniting (masked and outdoors) in bubbles with a small number of friends and family is a powerful wellbeing booster and may help to buffer the negative impact of uncertainty. Social connection is one of our strongest psychological needs. To have that back in our wellbeing toolkit for when life feels tough is something to maximise and celebrate – while still adhering to alert level rules of course. What else can we do to cope with the ambiguity that these alert level changes bring? First, focus on what is in your control – which is, your own thoughts and actions, and how you spend your time (outside of work or other commitments).

Shift your focus or worry away from looking for blame, what other people "should" be doing, and what might happen in the future. Instead, direct your energy towards what is most important to you – e.g., concentrating on doing my best work today, keeping my attention with my children and doing something nice together, helping my neighbour by moving her lawns. One practical step we can take towards this goal is scheduling daily “worry time”. As you consider your worries, identify where they sit within your circle of control – if they are within your control, what can you do today to make things a little bit better? Engage your practical problem-solving skills here and try not to let your mind wander into catastrophising territory or trying to predict the future. Then, set your own goals and routines. Psychological research has found that, when coping with tough times, what helps is to plan in advance daily activities for pleasure and mastery. Make sure you book in fun activities you will enjoy as well as tasks that will give you a sense of achievement or satisfaction. Small is good here - mastery might come from tidying the kitchen junk drawer, making cookies, or reading aloud to your child. Finally, don’t forget to lean on one another and embrace new opportunities to explore and socialise. Novelty and new experiences give us a dopamine boost and anticipation strengthens the hit. So, plan ahead and look forward to linking up with some newbubblers in different places. If easing out of a stricter lockdown feels scary for you, it’s fine to go slow and stay within your current bubble while enjoying some different outdoor activities that feel safe. The weeks to come will continue to test our resilience as we cope with new and novel challenges and ongoing uncertainty. Don’t forget to be compassionate with yourself and others as we adjust to change, and take time to care for yourself using the tips above. Dr Dougal Sutherland is a clinical psychologist and the Clinical Practice Manager in the School of Psychology at Te Herenga Waka—Victoria University of Wellington. Gaynor Parkin is a clinical psychologist and chief executive of Umbrella Wellbeing and Dr Amanda Wallis leads the research programme there.

DECEMBER 2021

Sentencing Advocacy Competition Talia Powell*

SENTENCING ADVOCACY COMPETITION Congratulations on being the Winner of the 2021 Sentencing Advocacy Competition in Auckland

Monique Pitt

_________________________________________________

Awarded this 14th day of October 2021 The New Zealand Bar Association is delighted to sponsor the competition and supports its aim of encouraging high standards in advocacy.

Paul Radich QC President | New Zealand Bar Association

This Ministry of Justice and the New Zealand Bar Association support and sponsor the annual Sentencing Advocacy Competition. Run by the Auckland High Court, the Competition provides the opportunity for a limited number of law students from the University of Auckland, University of Waikato, and Auckland University of Technology to present sentencing submissions on fictional problem scenarios to High Court Justices. The New Zealand Bar Association sponsors a prize fund which ensures the Competition remains an exciting and sought-after opportunity for students.

High Court Clerks and Competition organisers, Talia Powell and Hart Reynolds, and over 20 supportive audience members. The facts featured the defendant, Ms Darling, and complainant Ms Kerrigan, both engineering students at the University of Auckland. Ms Darling had lost to Ms Kerrigan in a remote-controlled boat race organised by a student association. The prize was a trip to Australia for an Engineering Forum and the chance to meet a top female engineer, and Ms Darling’s idol, Ruby Pippins.

Upset by the outcome, taunted by Ms Kerrigan and under relationship pressure, Ms Darling offers her boyfriend $1,000 to procure Ms Kerrigan’s murder. She prepared by purchasing tools to stage a break in, showing her boyfriend where the complainant lived, and finalising the time at which he would commit the murder. The day before the murder is supposed to take place, Ms Darling’s boyfriend goes to the Police and Ms Darling is consequently arrested. Having entered a guilty plea, she was before the Court for sentencing.

The Competition spreads across several weeks, as each round requires preparation of submissions for different fact scenarios. The change in alert levels meant the Competition had to be held via Zoom rather than at the Auckland High Court. The preliminary and semi-final rounds of the competition were held in September. The final was originally postponed in the hopes of being able to hold it in person, however the decision was ultimately made to hold it on 13 October 2021 via Zoom.

Competitors made submissions as to the aggravating features of the offending and the mitigating features specific to Ms Darling, including her mental health, youth, remorse, and prospects of rehabilitation.

The Honourable Justice Christian Whata presided, and students Monique Pitt for the Crown and Marcus MacKenzie for defence, made sentencing submissions in relation to a defendant charged with attempting to procure murder. Also attending was New Zealand Bar Association representative, Iswari Jayanandan,

Students were incredibly grateful for the opportunity to compete in the Competition and present submissions before a High Court Justice, despite alert levels requiring this to be done remotely.

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Justice Whata commented that both competitors’ written, and oral submissions were of a high standard. The competition was fierce, and both competitors performed outstandingly. Monique Pitt was announced the winner, with Marcus MacKenzie the runner up.

* Talia Powell was one of the competition organisers.

Petrol Heads’ Corner Cupra Formentor David O’Neill* I celebrate the first car review since lockdown 2020. It’s been a funny (weird) old year, with words like lockdown and alerts levels having commonplace usage. Since the lockdown of 2020 I was unable to get my hands on any vehicles to drive and had to either make up stuff – the 24 hour virtual car race, or dredge up material and patch articles together. With this heading, you will probably be scratching your head wondering what is coming next. I confess, I had to look some of it up myself. I knew that Cupra was made by SEAT, however that was all I knew. Luckily, Wikipedia provided the rest of the answers. Cupra Racing was formally known as SEAT Sport. It’s the high-performance motorsport subsidiary of SEAT. SEAT is a Spanish automobile manufacturer founded in 1971 and now embraced under the VW/Audi umbrella. Originally, SEAT was formed as a special vehicle

department to compete in rallies in 1971. Apparently, it did very well back in the late 1990’s. In 2018, SEAT created the Cupra brand as its independent high-performance branch and SEAT Sport was officially replaced by Cupra Racing. Cupra has now come out with a series of high-performance cars which are distributed throughout New Zealand. The car I had was the Cupra Formentor. Formentor makes you think of Harry Potter with something dark, mysterious and evil. It’s not. In fact, Formentor has nothing to do with the villains in Harry Potter, nor does it have anything to do with brewing beer at home. It is a peninsula in Majorca, a nod to Cupra’s Spanish roots. Believe it or not, the word “Formentor” doesn’t appear anywhere in or on the car. Why that is, I don’t know. The model that I drove was the Formentor VZ. It’s a cracker. It’s driven by a 2000 cc 4 cylinder, petrol engine with a turbo charger bolted on. Surprisingly, it develops 228 kilowatts and has 400 nm of torque. It’s all wheel drive with a 7-speed DSG box. It weighs in at 1644 kilo’s (driver on board – but not me……).

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The reported performance and efficiency is as follows:

dial that out as well.

• 0-100 km/h 4.9 seconds • Maximum Speed 250 km/h • Fuel economy 7.7 litres/100km In reality – it goes like stink and has a ton of torque and pretty good economy.

It is certainly a head turner. People were walking up and looking inside while I had it. The seats are very accommodating and comfortable.

The VZ is the flash one of the Formentor model range. It comes in at $68,900 plus on road costs and has pretty much everything (including a five-star NCAP rating) except for the black or blue leather (optional extra) and a variety of wheels, sunroof etc. The photographs show the car in its matte paint, which is a $3,500 extra, with the copper accented wheels (they look pretty cool), also an extra. I knew it was attractive to all ages. My 17-year-old said it looked sick (which I understand to be pretty cool), my oldest son said it looked pretty cool and my wife thought it was attractive. I thought the car looked exceptional. The matte paint is very striking, and the copper accents look terrific.

What’s it like to drive? For a little car with a two litre, four-cylinder motor it goes like it’s been nicked. It was exceptionally quick. The 0-100 (4.9 sec) time is probably the hint that it is quick and its handling is superb. We did the usual- took it to the beach, which involves going over the Kopu-Hikuai hill and it drove through the corners incredibly well. It felt solid and cornered at pretty good speeds without any hint of being unsettled. It’s a crossover, which means that you get the benefits of an SUV and a car, but it isn’t quite as high off the ground as an SUV. The good people at Cupra SEAT have amplified the sound through the speakers of the car. It snarl’s pops and sounds rorty. Excellent stuff! They have a Cupra button on the steering wheel (alongside the start/stop button), which allows you to dial through the various driving modes the car can adopt. There is comfort, normal, sport and Cupra. There are also individual settings to choose from. The individual settings allow you to tailor the drive train mode, steering weight and you can fiddle with ride comfort with a sliding scale. I quite like the noise but if you got sick of it, you could

DECEMBER 2021

The fuel efficiency was excellent. On the way over, I cycled in and out of the sport mode from comfort mode and back again. The fuel economy was 7.9 litres/100 km. On the way back, I purposely kept it in Cupra mode (their highest sport mode) and the return on economy was 8.7 litres/100 km. Remember, the drive there and back included the Kopu/Hikuai Road over the Coromandel ranges.

Inside My car had the panorama sunroof, which has a sliding see through shade with darkened glass. You can open the shade, open both or one of the sunroofs and there a number of in between options. The gearstick is a small toggle button which sits where the gearstick used to be. It does have an ESP-off button right above it and a couple of times I prodded that thinking it was the on/off button for ignition. The bucket seats are very good. It has a huge touch screen for all the features available in the car. In the short time that I had it, I wasn’t able to master everything, but it certainly looked fairly useful. It has Apple Play as well. There is a ton of room in the back seats for adults. Even the boot wasn’t too bad. As you can see from the photograph, the rear looks quite different and, so does the front. The badge looks like something out of the Transformer movie. There is not an awful lot to identify the car and you wouldn’t say the badge is a household identity. Overall, a mysterious car….. At $68,900 plus, say, another $5,000 - $6,000 for the extras that were on my car, it’s a very competitive package. It’s quick, it’s economical and comfortable and has plenty of room inside, both for passengers and for luggage. I reckon, given the bracket that it fits into, being the small Crossover/SUV bracket, it will be very competitive at that price. For

example, the Audi SQ2, which retails at $81,000+, has similar sprint times and, I suspect, a similar motor. Once these Cupras are out and about and are known a bit more widely, I think the brand will take off. They’ve got a large dealer network right throughout New Zealand and you have the range of costs for the V4 drive (slightly less power), all-wheel drive, 7 speed DSG at $54,900 + ORC. You don’t get all the fruit that you get with the VZ but you will still have a fair bit to play with.

However, if I was going to choose, I would get the VZ. It’s raucous, noisy and fun plus it has enough space to take the family, take the dog, take the cat, or none of the above. If you’re in the market for a small, sporty, crossover hatch then this might be the car for you. Certainly, put it on your list to look at. You won’t be disappointed. * David O’Neill is a Hamilton barrister practising out of Riverbank Chambers. He says he does not spend a lot of money on cars. Uh huh.

DECEMBER 2021

Events Wellington Silks Dinner – St Johns, 24 September 2021

Michael Colson QC, Victoria Heine QC and Greg Arthur QC

Wellington End of Year Drinks – Thistle Inn, 1 December 2021

Owen Jaques, Craig Stevens, Tony Stevens

Guests enjoying the company of colleagues and friends at the Wellington Silks Dinner

At front The Honourable Justice Matthew Palmer, Aedeen Boadita-Cormican, Victoria Casey QC and Rachel Roff

DECEMBER 2021

Guests enjoying gathering in person at the Thistle Inn, Wellington. Front: Paul Radich QC speaking with Tanya Kennedy Back: Rachel Burt, Juliet Philpott, Bernard Robertson

Events Christchurch Silks Dinner – Peppers Clearwater, 3 December 2021

Anne Toohey delivering a speech to her good friend Kerryn Beaton QC

Kerryn Beaton QC speaking to her dinner guests

Guests enjoying dinner lakeside at Peppers Clearwater

Anselm Williams, Rebecca Murphy, Josh Lucas and Abbie Hollingworth - from Walker Street Chambers

Dr Rhonda Powell, Danielle Steyn, Tui Scott, Angeline Boniface, Walker Street Chambers

Angela Lee, Arabella Jarman, Paddy Brand, Rebecca Murphy, Anita Connew, Sue Dunn, Aja Trinder from Walker St

DECEMBER 2021

Events Tauranga End of Year Drinks - Tauranga Chambers 10 December 2021

Her Honour Judge Christina Cook, Renee Harley, Rebekah Webby

Matthew King, Nathan Smith, John Howell

Kylee O’Connor, Mike Douglas, Camille Bell, Andrea Fraser

Paul Radich QC, His Honour Judge Cameron

DECEMBER 2021

Rita Nabney, Amy Baker, Vicki Scott

2021 – 2023 COUNCIL CONTACT DETAILS PAUL RADICH QC – President Ph: +64 4 974 5951 Paul.radich@cliftonchambers.co.nz PHILLIP CORNEGÉ Ph + 64 7 282 0572 phillip@phillipcornege.com VICTORIA CASEY QC Ph + 64 4 212 4679 victoria.casey@cliftonchambers.co.nz MARIA DEW QC – President Elect Ph: +64 4 974 5951 Paul.radich@cliftonchambers.co.nz GOWAN DUFF Ph: +64 27 2828 287 gowan@mataichambers.com SIMON FOOTE QC Ph: +64 9 307 8784 swbf@simonfoote.co.nz FELIX GEIRINGER Ph: +64 4 909 7297 felix@geiringer.law TARYN GUDMANZ Ph: +64 3 477 8781 taryn@princeschambers.net GENEVIEVE HASZARD Ph: + 64 7 571 2447 genevieve@kennedychambers.co.nz ISWARI JAYANANDAN Ph: + 64 9 263 0047 iswarij@yahoo.co.nz SAM JEFFS Ph: + 64 9 973 0272 sam.jeffs@bankside.co.nz STEPHEN LAYBURN Ph: + 64 9 300 5485 stephen@stephenlayburn.co.nz RICHARD MCGUIRE Ph: +64 3 962 4241 richard.mcguire@pds.govt.nz TIHO MIJATOV Ph: +64 4 472 9027 tiho.mijatov@stoutstreet.co.nz JAMES RAPLEY QC Ph: +64 3 964 8000 james.rapley@bridgesidechambers.co.nz SETAREH STIENSTRA Ph: +64 9 309 7889 Setareh@publiclawchambers.com ANNE TOOHEY Ph: +64 3 260 3101 anne@annetoohey.com MAGGIE WINTERSTEIN Ph: +64 9 262 1126 m.winterstein@libertylaw.co.nz

At the Bar - December 2021

Articles inside

Riding the Wave of Optimism – Being a circuit breaker for change

A new Incorporated Societies Act - a guide for societies

Coping with Ambiguity Now Covid’s Here to Stay

Uncoupling – a guide to separation

Events – recent events and ceremonies

Petrol Head's Corner - Cupra Formentor

Planning for the Future During a Pandemic – MAS on

Let’s be Civil! – the true cost of incivility

Family Mediation – is it working for dads?

Class Actions – the current situation

Book Review – Ngā Kete Mātauranga

Kōrero – what is happening in Chambers

Is it Time to Trust your Gut?

From the President – Paul Radich QC