At the Bar - July 2020

At The Bar July 2020

Equality in the Law and MÄ ori COVID-19 and Insolvency Law Getting Back in the Saddle www.nzbar.org.nz

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YOUR ASSOCIATION 4 From the President – Kate Davenport QC 5 New Members – members who have joined since our

last issue 6 From the Secretariat – Jacqui Thompson 7 Committees Report – update on our committees' work 8 Diversity and Inclusion Report – what the committee

is doing 17 Obituary – Dr Gerard McCoy QC SC 20 Member Benefits – how to make the most of NZBA membership 31 Upcoming NZBA Dinners LEGAL MATTERS 10 Equality in the Law and Māori – Hon. Justice Christian

Whata discusses equality and its guarantee under the law 14 Insolvency Law Changes – Stephen Layburn outlines

the Covid 19 changes to insolvency law 18 Damages for Breach of Contract Under the CCA – a

welcome clarification 22 Auckland Legal Workers Union Aotearoa – Morgan

Evans talks about the union's development PRACTICE AND LIFESTYLE 25 Getting Back in the Saddle – Post lockdown life 27 The Future of Managing Our Money – MAS 29 The Relationship Between Time and Investment

Returns – The Fruit Tree Analogy – Patrick Fogarty 32 Petrol Heads’ Corner – David O’Neill on Targa and

driving deprivation

p32 The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association.

EDITORIAL COMMITTEE David O’Neill (Chair and Editor-inChief ) 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 & 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, Shortland Street, Auckland 1140

From the President Kate Davenport QC*

Kia ora koutou A wrap up of our life in Covid-19 Unfortunately, this issue of At the Bar was delayed by the amount of work our team had to do during the Covid 19 outbreak, and the subsequent catch up on our usual workload. Covid 19 is, of course, still lurking in the background, but we are beginning to move on.

That doesn’t mean that we have been silent during that time. On 19 March 2020, I took over a portion of the NZBA website with a view to keeping our members connected and updated during the lockdown about what the NZBA was doing. That began a series of emails and updates, which allowed me to get to know many of you, which was a great pleasure, as well as a source of support and comfort for me and the NZBA team.

As I look back through those columns, I realise that the lockdown plunged us all into some form of isolation and that social interaction was something that so many people were missing. I hope we managed to help a little bit with that through our virtual happy hours (see below).

Another feature of the columns I wrote was the number of times I acknowledged the value of the feedback that we received about what members wanted to see happen and how we could best help everyone. I talked about what was going on and shared your jokes and stories or suggestions. Your feedback was very important and did inform a lot of the decisions that were made by the Ministry of Justice and the Judiciary.

I want to thank you one more time for your contributions during this period. I know we are all suffering from “feedback fatigue” and that many of us cannot face the thought of another email in the next few months, if not years! You are not alone in this: I have had to put my foot down over our Executive Director’s suggestion that from now on we submit all feedback by Twitter. While I do sympathise with her, I have no desire for my presidency to be compared to that of Donald Trump.

Another thank you is owed to all those who participated in our virtual happy hours. I enjoyed chatting with you and learning about your experiences. We are going to continue catching up with members online. We recently held a virtual welcome for several new members which gave us a chance to meet them and find out why they joined the bar.

There are lots of matters that we can talk about close to home, but I want to focus on events abroad for a few minutes. The first event was the July swearing-in of our former Council member, Satiu Simativa Perese, as Chief Justice of Samoa. I was delighted to be able to wish him all the best in his new role at a special e-meeting of the NZBA council earlier in the year, which was attended by the President of the Pacific Lawyers Association, Tania Sharkey. The respect in which the new Chief Justice is held was evident, and Tania's remarks reduced several council members to teary eyes!

As an organisation, we have always spoken out about matters that affect the rule of law. Over the last two years we have been concerned about incursions on the judicial system in Hong Kong that compromise the independence of its judiciary and the rights of its citizens to freedom of speech. As you will have noticed from the media, this concern has escalated with proposals that will affect the rights of those who live in Hong Kong. We sent a formal letter of support to the Hong Kong Bar. I have also been very pleased to see the British government offering increased rights to come to the UK for Hong Kong citizens.

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At the same time, we are all viewing the events in the United States with a sense of disbelief. A police officer kneels on a man’s neck for eight minutes, despite his pleas to be allowed to breathe, and he dies. A president then tweets “when the looting starts, the shooting starts,” a phrase that is said to be linked to the civil rights era protests and a white police chief who used the phrase at that time.

The death and the tweet sparked riots in the US and protests around the world. It is unbelievable that we need to say this in 2020. Black lives matter. What happened to George Floyd must never happen to anyone again.

We ourselves cannot feel complacent. New Zealand has one of the highest rates of incarceration of its indigenous people. We need to stand up for what is right. I highly recommend reading Hon. Justice Whata's article on p10 of this issue as a way of educating ourselves.

There are no easy answers on how to ensure change, but we can start by looking at the messages that we share with our children, grandchildren, nieces and nephews, and our neighbourhoods and communities. We have to communicate clearly about respecting basic human rights for all.

Kate

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

New Members of the NZBA Sarah Armstrong Gemma Aspell Jane Barrow James Carruthers James Christmas Grace Collett Shaun Connolly Naomi Cramer Michelle de Geest Hunter de Groot Paul Depledge Gowan Duff Graeme Edwards Anne Fisher Jane (Janey) Forrest Riaan Geldenhuys John Goddard Kirsten Hagan Bruce Hall Barry Hayes Rebecca Holm Jeremy Johnson Mark Keating Fionnuala Kelly Devon Kemp Zane Kennedy Ailson King Mark Kirkland Kerry Knight

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AUCKLAND AUCKLAND AUCKLAND AUCKLAND CHRISTCHURCH WHAKATANE WELLINGTON AUCKLAND OAMARU AUCKLAND HAMILTON AUCKLAND AUCKLAND AUCKLAND WELLINGTON AUCKLAND WELLINGTON WELLINGTON AUCKLAND AUCKLAND AUCKLAND AUCKLAND AUCKLAND WELLINGTON AUCKLAND AUCKLAND WANAKA DUNEDIN AUCKLAND

Gregory (Greg) La Hood WELLINGTON Rayhan Langdana AUCKLAND Jacob Meagher CAMBRIDGE, UK Christopher (Chris) Merrick AUCKLAND George Morrison AUCKLAND Sarah Morrison WELLINGTON Fleur Oback HAMILTON Sarah Ongley AUCKLAND Gordon Paine DUNEDIN Lauren Pegg DUNEDIN Adam Pell HAMILTON Emma Priest AUCKLAND Bushra Rashid AUCKLAND Catherine Reid MASTERTON Nicholas Russell WELLINGTON Geoffrey (Mark) Sandelin AUCKLAND Johann Schlebusch AUCKLAND Andrew Schulze ROTORUA Natalie Small AUCKLAND Kelly-Ann Stoikoff AUCKLAND Michael Thomas AUCKLAND James Tocher WELLINGTON Alisaundre (Ali) van Ammers AUCKLAND Johannes (Hans) van der Wal CHRISTCHURCH Helen Walsh AUCKLAND Frances Williams WELLINGTON Rebecca Wolt QUEENSTOWN Lucy Wright AUCKLAND Saima Zafar CHRISTCHURCH

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From the Secretariat Jacqui Thompson*

The savings begin to add up over a year. And I recently priced a dehumidifier which was listed online for $799 but the member price was $629.

There were other cheaper dehumidifiers on sale, but I wanted a Rolls Royce version. Another good buy was paint from the Dulux Trade centre – again, purchased a year ago. Now, if only I could be bothered to actually get around to using it.

Kia ora koutou.

At Kate suggestion, I want to run through what the Secretariat has been dealing with so far this year and outline what is to come.

I was appointed Acting Executive Director shortly before the lockdown. I had little idea what was ahead of me! It was an incredibly busy period and I suspect Kate Davenport and I talked more to each other than we did with our families. Our Membership Administrator/Events Co-ordinator, Lisa Mills and Accounts Assistant, Dianne Tietjens, ran an amazing support service in the background. At the end of lockdown, I think we were all looking forward to not talking to each other for a few days.

Looking ahead, our Bench & Bar and QC dinners will go ahead. The Wellington Silks dinner will be on 30 July at St Johns. A combined Bench and Bar Silks dinner will take place in Auckland on 12 August at the Hilton’s Aquamarine Room. Both of these dinners are on our events calendar on our website. We are also planning a one day training event in Auckland on 16 October and another event in Christchurch in late November.

I share Kate’s feelings about the contact we had with members and the incredible feedback that they gave us during that period. This feedback was listened to and it made a difference. We didn’t get everything we wanted all the time, but we got variations and concessions that were important for members.

When we started the Covid 19 journey, many people said to us that we were all in this waka together.

While that was true in a very general sense, it soon became apparent that everybody’s waka was a little bit different. Some people had the latest technology in their boats. Others, through no fault of their own, had leaks springing up everywhere as their incomes diminished and, in some cases, disappeared. Others had no idea what direction they should go in and what paddle to use (I think I may be taking this analogy a little bit far!).

We are still catching up – as the very late publication of At the Bar demonstrates! A major problem was that the timing of the outbreak coincided with our membership renewals. We had to look at ways that we could give members added value and allow them to retain their membership in the face of increasing financial difficulty.

For this reason, the NZBA is thinking more holistically about what members need in the future. For example, our technology and training committees are considering what barristers need to know about working with the latest technologies. We must plan so that people are ready for the future. I hesitate to ask you for “feedback”, but if you do have any comments about things you would like to learn about, please email technology@nzbar.org.nz.

We decided to put our training programme on hold and instead offer free virtual events so that people could claim CPD and thereby reduce their costs over the year. While this meant an income loss to us, we wanted to be sure that members could optimise their membership.

We also came up with some instalment plans for membership payments. Without going on at length about our client relationship management software, this was not easy! I want to reassure you all that the process is confidential.

Finally, thank you all for your support, your patience, your kind comments and your humour.

Ngā mihi nui,

Another focus for us was our member benefits.

The savings depend on the benefit and the item you are buying. For example, buying cables and connectors at Noel Leeming will result in good savings. Last month I saved approximately $13 on a new cable and $16 on a port. This week we saved $12 on new batteries for our phones.

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Jacqui. *Jacqui Thompson is the Acting Executive Director and Training Director of the New Zealand Bar Association. If you have any questions or comments about this column, please email Jacqui at Jacqui.thompson@nzbar.org.nz.

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Council and Committees Report Having active committees is important at the best of times but during a pandemic, it became critical.

The NZBA had to call on committee members for help in a number of areas and we are very grateful for all of those who immediately stepped up.

pandemic. What we did know was that we had to act very quickly in several areas to ensure that it could withstand the impact of the unfolding events.

The Management Committee had the responsibility of reviewing proposed plans and the budget and reporting on these to Council. It was charged with One advantage we had was that the NZBA keeping a tight control on expenditure proposals. has been working towards virtual meetings for some years now. All our training and technology Criminal Committee committee meetings have been virtual since This committee had to deal with a range of about 2015, and most of our other committees issues relating to courts, prisons, transportation have started meeting in this way over the last to court, legal aid etc. They were asked for three years. This made the transition during feedback practically every day at the beginning lockdown relatively seamless. and although this has tailed off, they are still being called on at least once or twice a week.

In many respects, the greatest advantage with an online meeting is that it allows participation by Jonathan Eaton QC has been representing NZBA members from throughout New Zealand. the NZBA at the Criminal Processes Working Although you lose the face-to-face contact, Group. This group is considering how we can you can still build collegial environments online. streamline the criminal processes in the District Connecting with people you might not ordinarily Court. It is an ambitious project. You will hear work with outweighs many of the disadvantages. more about this project through our member updates soon, but we thank Jonathan and the Another advantage is that we can reduce the entire Criminal Committee for their prompt and environmental impact of travel. The NZBA has considered feedback. been conscious of reducing its footprint in this area and others. We started the move to a Technology Committee paperless environment some years ago and At the start of the outbreak this was certainly the have been working remotely and in the cloud for committee that was called into action very quickly. a considerable time. So, in many ways, we were It liaised with the courts on proposed technology able to respond quickly to the crisis. (sometimes with a somewhat different viewpoint to that of the MOJ!) and reported back to Council What follows is a very brief summary of the work and members. Some of the ideas that came out undertaken by our committees and Council. of the early days will be carried forward into other projects. As you are aware, the committee also Council participated in a Virtual Happy Hour webinar on In any given year, Council meets four times. This using Microsoft teams. The committee is now year, Council has met five times in the first half considering how we can increase our support for of the year. Our meetings schedule went out the our members as we move towards using more window in late March. This has required a huge technology than ever before in our practices. time commitment in Zoom meetings from Council Members. Council's immediate concern was what Commercial Committee the NZBA could do to support members. This We have several new members on our was closely followed by regular reports on the commercial committee, and we thank them for state of the Association's accounts and how we their willingness to participate. Members of the could ensure its continued work. Council is now committee are Michael Webb (C), Debra Angus, considering what changes are needed in future Stephen Layburn, Jane Meares, Rhonda Powell. to respond to the different professional landscape This membership shows the diverse work of the resulting from Covid 19. commercial committee. You will find an article from Stephen Layburn on p14 of this issue, Management Committee which is well worth the read. The committee The Management Committee is responsible for the met during the lockdown and has developed a day-to-day running of the NZBA. Nobody knew plan for developing the role of barristers within how the Association would be affected by the government work. Details will follow shortly.

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Membership Committee The membership committee has continued its work against the background of Covid 19. One project that deserves special mention is a focus on juniors. We received reports that the pandemic has badly affected members in the 0-7 years PQE category. As a result of this, the committee has asked NZBA members who may need help with their workloads to consider reaching out to our junior members.

and the many updates provided by Kate.

They appreciated the speed with which we communicated and passed on their comments.

We held our first virtual Welcome to new NZBA members in June. Simon Foote QC, Quentin Duff, Setareh Stienstra, Lisa Mills and Jacqui Thompson joined nine new members online. The members introduced themselves and talked about why they had moved to the bar and how they came to join the Association. We enjoyed meeting everyone and we hope that they feel they can contact us with any questions or concerns.

We received favourable feedback from members who seem to be happy with free CPD webinars

Diversity Committee Report from Setareh Stienstra

Last year I took over the role of Chair of the Diversity and Inclusion Committee. Being a first year NZBA Council member, I saw this role as an opportunity to continue the dialogue on diversity in the legal profession. As highlighted in the Snapshot of the Profession in the June 2020 Law Talk, the independant bar is growing - with that growth comes a more diverse range of people joining the independant bar. One day, the topic of diversity may no longer be a required discussion or a committee. For now, however we know that it requires some specific consideration.

with representatives from various women in law groups around the country, and some of those women are on the Committee. We tried to determine what is getting in the way of women progressing and in particular women of diverse backgrounds. One of the issues being jointly worked on is increasing the representation of women in the Chambers Directory. Women and those of diverse backgrounds are significantly under-represented in the Chambers Directory.

We are also working with these women's groups and other organisations to ensure there is a diverse range of talent on government briefing lists and panels.

The Committee encourages the involvement of members from diverse backgrounds in the activities of the NZBA and the profession to ensure that everyone is included in the work that we do. That work involves advocating for all barristers at the independant bar, regardless of where they practice from or what area of practice they specialise in or what background they have.

A key part of the Committee's function is to foster relationships in an inclusive way.

In 2018 we published our study on the gender of counsel appearing in our Court of Appeal and the Supreme Court. This great work was led by Jenny Cooper QC and was funded by the Law Foundation of New Zealand. The study highlighted that women appeared as lead counsel significantly less frequently than men and in a proportion that was significantly less than their overall representation in the legal profession.

Since 2018 the Committee has worked to connect and work with other legal organisations so that we are sharing knowledge and moving ahead in the same direction. We have connected with the women's law associations, the Pacific Lawyers Association, and are working on connecting with other organisations. I am pleased to say the President of the Pacific Lawyers Association, Tania Sharkey, has joined the committee.

That data took us through to the end of 2017. As I write, we are in the process of collating results of the data gathered in 2018 and 2019 again, funded by the Law Foundation. While we had hoped to present the results at our next conference, our 2020 conference has been cancelled. However, we will publicise the new study as soon as we can and will share the results.

Over the Lockdown period I had discussions

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One of my interests and the reason I wanted to be

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It follows then, that to make the grow Bar it must be seen as an accessible option for students. So a second project led by a member of the Committee Garry Williams was to introduce being a barrister to High Schoolers – he started by visiting his own high school. Others have taken time to connect with their high school and it has sparked interest, discussion and debate.

involved in the work of the Committee was to look at making the Bar more accessible. Two projects have been underway to tackle this issue.

One project had to do with practising certificates for those who return to work after taking time out to care for children, elderly, or study, and who arguably had not practised at least three out of the last five years. We found that there was a lack of clarity around the "special circumstances" requirement under the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008.

We worked with the Law Society to clarify these requirements and they have provided guidance on their website. This should assist those seeking to move to the independant bar but who might think they do not have the requisite experience.

To make this growth sustainable we are also taking a look at our membership and how we can reflect the increasing diversity of the legal profession at the independent bar and their needs. A big part of that is seeking to work with other legal organisations. Training and mentoring are key ways in which we can foster relationships and we hope to have a number of training sessions to assist barristers.

To further support those returning to the bar we are working on a "return to work" policy at the NZBA. This we hope will help those who have taken breaks from practice at a junior stage of their career, but are seeking to return to the Bar at a point where they would have to pay fees for a senior level experience when they join the NZBA. This policy should assist to grow the independant bar and make it accessible to a wider range of people.

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2020 has been and will continue to be an unusual year. Working together in different ways will ensure we all have a place to stand. I look forward to hearing from members about any initiative they would like to see the Bar progress to foster diversity of representation and thought. Please contact the Secretariat at nzbar@nzbar.org.nz with any views.

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Equality in the Law and MÄ ori Hon. Justice Christian Whata*

As you may have guessed, I want to talk about equality.1 But before doing so, I want to mention an experience that provides an illustration of the curious position of indigenous people and the law, and the ingenuity of counsel acting for indigenous peoples.

In an earlier version of this speech I was going to refer to the absence of indigenous icons in popular culture as an illustration of a broader absence of recognition of indigenous culture and norms, including within the law.

I was going to make the point that very rarely do we see indigenous heroes make it into big budget movies. But there is one notable exception, the demi-God MÄ ui, who is one of the central

characters in the Disney Movie, Moana. This is a significant though isolated achievement. And in some ways mirrors the evolution in the law, where indigenous norms are finding their way into mainstream thinking.

I was going to put up a picture of him from the movie because he looks awesome. But it was pointed out to me that I needed permission from Disney to use the picture. The approval process takes 8 weeks. I gave up on the idea.

My co-speaker, Karen Feint (now QC) was not however so easily deterred. Within 24 hours her team had developed a principled basis for asserting an indigenous right to use imagery of cultural icons. My other co-speaker Antony McAvoy SC liked the argument too, though said he would prefer to act for Disney on this one.2 In any event, it is an example of the ingenuity of counsel operating in this space.

I should mention that Disney is faultless in all of this. It never got the opportunity to say yes or no.

I wish to note that I have drawn on a lecture I gave at the Auckland Law School which can be found at: https://www.auckland.ac.nz/en/law/our-research/ research-institutes-centres/aotearoa-nzc-indigenous-peoples-law/news-events/public-lectures-events/public-lecture--justice-whata.html - I hope to publish that lecture in full at some time in the future. I also wish to note that this article is not a verbatim transcription of my speech. Some editorial licence has been employed.

2 Mr McAvoy would later point out in his speech that this observation was a classic example of a judge misinterpreting counsel. He noted simply that Disney might have the better argument.

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So, turning to equality. I want to first provide some context.

One familiar statistic stands out for mention - 20% of all offences for which Māori are incarcerated are against justice procedures, government security and government operations. I doubt government security or operations accounts for a substantial portion of this number. I apprehend that much of it may have something to do with pre-trial detention or breach of parole conditions.

As with other offending for which imprisonment may be imposed, the ratio of Māori to non-Māori is broadly the same with Māori comprising between 57%-62% of the prison population for this type of offending.

The numbers These statistics of incarceration on the table above will be well known to many of you. They show: (a) While only comprising 15% of the general population, Māori have comprised about 50% of the prison population for nearly 30 years. (b) Māori youth have comprised about 50-60% of those charged since 1996.

Some intuitions I think we can make some intuitive conclusions about this data. Māori are grossly overrepresented in the prison population and this overrepresentation is systemic in that is it is pervasive throughout the criminal justice system. We may also assume it is structural insofar as there are structural features of criminal justice that impact disproportionately on Māori, evident (for example) from the large numbers of Māori incarcerated for offending against justice procedures.

(c) 65% of youth in prison are Māori.

It appears generally accepted that based on these statistics, Māori are about seven times more likely to be imprisoned than persons with European whakapapa, whom for ease of reference I will refer to as Pākehā.

But in some respects, this conclusion is misleading. Māori and Māori criminality are not evenly distributed throughout New Zealand.

Almost 60% of the Māori prison population was sentenced in just six (of 16) regions. In some of those regions, the Māori incarceration rates have ranged between 70-80% of all persons imprisoned since 2014.

Finally, I think it is clear that the impacts will be felt most keenly within specific communities where the number of Māori incarcerated is particularly high and the rates of incarceration are particularly entrenched. I think we can also assume that the effect of these rates of incarceration on the affected whanau is likely to be profound. While the rates of incarceration are alarming in several communities, the 12 to 1 ratio of Māori to Pākehā within Counties Manukau brings home the stark reality for many whānau Māori living within its borders. Any day at the Manukau District Court will regrettably confirm this reality.

The difference is not explained by higher densities of Māori population. Closer examination of the rates of incarceration by Police District reveals that the relative disproportionality in these regions remains about the same or even higher.

For example, the data suggests the following ratios of Māori to Pākehā imprisonment:

A principled basis for equality I want to move then from this context to talking about a principled basis for promoting equality for Māori.

(a) In Waikato, 8.5 to 1. (b) In the Bay of Plenty, 8.8 to 1. (c) In Counties/Manukau, 12.4 to 1.

It might be thought to be obvious that the principle of equality for all is embedded in our law. And that it would operate to protect all of us, irrespective of among other things, ethnicity.

The Waitangi Tribunal also recently reported that Māori are 11.4 times more likely to be removed from the electoral role.

But I think it is necessary to articulate a proper principled basis for promoting equality for Māori; one that responds to the legitimate idea that the architecture of the law needs to be neutral to all, irrespective of race, to in fact protect equality.

This is important because this disparity is reflective of a broader narrative of relative inequality that is bearing on the constitutional rights of Māori.

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I do not have time to explore this issue in any depth today.3 But what I simply propose to do is identify the sources of law that provide a cogent basis for promoting equality for Māori.

First, international law has affirmed the right of equality for indigenous people. Article 2 of UNDRIP states that:4 "Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in the exercise of their rights, in particular that based on their indigenous origin or identity".

The right of Māori to equality was of course guaranteed by Article 3 of the Treaty of Waitangi, not often cited even in legal scholarship today. It states: "For this agreed arrangement therefore concerning the government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England."

The Waitangi Tribunal aptly put it this way:5 "The principle of equity, or the obligation of the Crown to act fairly between Māori and non-Māori, derives from the British citizenship rights granted to Māori by Article 3 of the Treaty."

And even before we had the Treaty, the idea of equality before the law was well entrenched. This will take many of you back to Law School, but Dicey put it this way:6 "... every man, whatever be his rank or condition, is subject to the ordinary law of the realm."

In my view, if we bundle up these various statements, we can mount the case for the proposition that the right to equality has two basic requirements for Māori: (a) Recognition of Māori legal, social and cultural norms - or what is called in te ao Māori, tikanga Māori;

(b) Recognition of condition - that is, in interpreting and applying the law insofar as it affects Māori, we have a realistic appreciation of the circumstances of Māori collectively and individually so that they are subject to the ordinary law on equal terms.

And this provides a convenient point to segue to the final part of my kōrero on how the law is responding.

Tikanga and Civil Law Dealing first with the incorporation of tikanga in the civil law. There has been, some might say, a not-so-quiet revolution in terms of the recognition of tikanga Māori in civil law in the last 20 years.

And just to give a little background - for a hundred or so years a prevailing view was that the Treaty was a nullity and the Crown was the arbiter of its own justice insofar as tikanga-based rights (e.g. to land) were concerned.7 However, in the early 2000s we caught up with Australia and, for the first time, affirmed unequivocally the existence of customary rights based on tikanga, without the need for legislative intervention, in the Ngāti Apa foreshore case.8 In this case, and in the more recent case of Paki,9 our most senior Court jettisoned the idea that the Crown was the arbiter of its own justice insofar as concerns tikanga-based rights - Paki was a case concerning rights in respect of river beds - with the Court affirming the right to sue the Crown in respect of alleged failure by the Crown to protect tikanga­based rights to the river beds.

And in Takamore,10 a case about a tikangabased custom of returning a deceased to the haukainga (tribal homeland), the Supreme Court affirmed that tikanga­ based laws and custom were cognisable by the Courts and should inform the shape of the common law. Then, in Wakatu,11 the recognition of historical fiduciary obligations, which has at its core a recognition of tikangabased rights to land and a corresponding duty to protect. Finally, last year, the Supreme Court in the Ngati Whatua12 case stated that tikangabased claims may survive contemporaneous parliamentary proceedings dealing with the

I addressed this issue in some depth in my lecture at the Auckland Law School, above at n1.

United Nations Declaration on the Rights of Indigenous Peoples (2007) A/61/295, art 2.

5 Waitangi Tribunal, Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 4.1.3.

6 Dicey, A. V. Law of the Constitution (1885).

7 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72.

8 Ngati Apa v Attorney-General [2003] 3 NZLR 643 (CA) 9 Paki (No 2) v Attorney-General [2014] NZSC 118.

10 Takamore v Clarke [2012] NZSC 116.

11 Proprietors of Wakatu v Attorney-General [2017] NZSC 17.

12 Ngati Whatua Orakei Trust v Attorney-General [2018] NZSC 84.

3 4

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same subject matter; that is, the fact the same subject matter might be before Parliament did not necessarily preclude the justiciability of claims based on tikanga.

While each of these cases must be treated with care and understood in light of the specific facts and legislative context applying to it, the recognition of tikanga­based claims within them is a major step toward affirming the principle of equality.

Tikanga and Criminal law The picture is not so positive in relation to criminal law. The Court of Appeal in the leading case of Mason identified two problems for the incorporation of tikanga process in criminal law - first, the criminal law in New Zealand is a code and secondly, tikanga processes have been so affected by colonisation that it is barely cognisable as a body of rules and laws.13 I wish to note in this respect that with the emergent post­ settlement renaissance, and the reinvigoration of iwi and hapū-based governance and other social structures, we may see the landscape change markedly in the next 10-20 years.

For the meantime the picture is not however completely undeveloped both in terms of the ongoing evolution of the law and the Courts.

I am aware of the limits placed on this dicta by the Court in Bugmy,16 and the concerns expressed there for individualised justice.

But these concerns can be reconciled as they were by the High Court in Heta in the following terms:17 "... the normative basis for recognition of systemic Māori deprivation as a mitigating sentencing factor is not dependent on racial or ethnic classification. Rather, it is the presence of systemic deprivation in the lives of Māori offenders and their whanau that may trigger the potential for a differential sentencing response."

My last thought on this topic is to refer to the two relatively new Courts which are employing tikanga in practice and principle, the Rangatahi and Matariki Courts. While the evidence is anecdotal, I understand that engagement with Māori offenders has been positive both at a procedural and substantive level. * The NZBA thanks Justice Whata for providing us with this article which is based on his speech at the NZBA/ ABA Joint Conference in Queenstown in 2019.

For example, in Keil,14 the Court of Appeal recognised that the tikanga principle of muru or restorative justice was a relevant consideration in sentencing. While the Court was clear that serious violence could not be condoned, recognition of cultural drivers might be a mitigating factor.

We have also recently seen recognition of "condition" as providing a basis for differential treatment. The Australians will be well familiar with this:15 [It] is about recognition that disadvantages, which may arise out of membership of a particular group, which is economically, socially or otherwise deprived to a significant and systemic extent, may help explain or throw light upon the particular offence and upon the individual circumstances of the offender.

Mason v R [2013] NZCA 310, (2013) 26 CRNZ 464.

Keil v R [2017] NZCA 563.

15 R v Pitt [2001] NSWCCA 156 per Wood CJ. 16 Bugmy v The Queen [2013] HCA 37.

17 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [43].

13 14

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COVID-19: Insolvency Law Changes Passed

By Stephen Layburn*

The package of measures account the likelihood of trading conditions announced by the improving, the likelihood of the company Government on 3 April reaching a compromise or other has now been passed: arrangement with its creditors, or any COVID-19 Response other relevant matters.

(Further Management Measures) Legislation It is important to note that, despite this temporary relief, directors continue to be subject to the Act 2020. balance of their duties under the Companies Act There were a small (including the ‘primary duty’ - to act in good faith number of changes and in best interests of company). As a result, made during the pathway care needs to be taken to ensure that decisionthrough Parliament – for measures that are making is soundly based and adequately intended to be temporary and provide much documented – and independent / professional needed support for businesses (and their advice is obtained where required. directors) that need some breathing room in order to be able to form a realistic view of whether they As a result of submissions during the legislative will survive the rigours that have, or will, flow from process a ‘purposes’ clause was added: the COVID-19 outbreak.

However, it is not a purpose of this schedule [the Most of these temporary measures have safe harbour] to facilitate the ability of a company immediate effect - noting that the safe harbours that has no realistic prospect of continuing to (for directors) from insolvent trading are trade or operate in the medium or long term to retrospective. defer a decision to enter into liquidation to the detriment of its creditors.

Directors’ duties – safe harbour The safe harbour for directors from the insolvent This serves to underline the point that the trading regime in the Companies Act take effect temporary safe harbour is aimed at providing from the date of announcement (3 April) and directors with the necessary confidence to work provide some relief for a period of 6 months. on saving / trading out of difficulties a business

that is otherwise viable and has suffered a During that period, a director’s actions will not temporary setback as a result of COVID-19. breach the duties in sections 135 and 136 of the Companies Act (reckless trading / incurring Business Debt Hibernation (BDH) obligations) if: The BDH regime provides companies (and a • the company was able to pay its debts as they range of other trading entities – but not sole traders) with some much-needed breathing room fell due on 31 December 20191; to work with their creditors – to come up with a longer term ‘work-out plan’.

• in the good faith opinion of the director: o the company has, or in the next 6 months2 is likely to have, significant liquidity problems, which are a result of COVID-19; and o it is more likely than not that the company

will be able to pay its due debts in 18 months’ time (30 September 2021). In order to assess this, the directors may take into 1 2

There are two steps to the hibernation under the BDH regime: • entry: which triggers an automatic one-month moratorium; and • approval (by creditors): which triggers an extension of up to 6 months,

This relief also applies to new companies formed between 1 January 2020 and 3 April 2020.

This timeframe is capable of being extended – at this stage the trading environment in September for some sectors appears to be a step into the unknown.

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in both cases preventing the enforcement of debts – other than certain secured debts.

Entry into BDH is achieved if the directors agree that:

that entry into the BDH is likely to need the support of the GSA holder – particularly in the context of the proposal submitted to creditors for approval.

• Excluded debts: As previously noted, certain • the entity was able to pay its debts as they fell excluded debts are not subject to the due on 31 December 2019; moratorium – including debts incurred after the entry into BDH, salary and wages payable to • at least 80% of the directors (acting in good employees and PAYE and similar deductions faith) vote in favour of the entry resolution; and payable to the IRD. •

those directors who voted in favour certifies3 that, as at 31 December 2019, the entity was paying its debts as they fell due, and in the director’s good faith opinion:

One of the important protections of the BDH regime is that payments made by an entity that is subject to BDH are exempt from the voidable transactions regime (under the Companies Act and provisions relating to transactions that o the company has, or in the next 6 months prejudice creditors in the Property Law Act 2007) is likely to have, significant liquidity – so long as they are entered into (by all the problems, which are a result of COVID-19; parties) in good faith and on arm’s-length terms. and There is an important qualification here – namely o it is more likely than not that the company that the voidable charges protection in section will be able to pay its due debts on and 292 of the Companies Act continues to apply. after 30 September 2021.

The Companies Office has prepared a guide Entry into BDH is achieved by delivery of a notice that is aimed at professional users. The guide to the Registrar of Companies. That notice summarises the process and provides links to must be sent to creditors as soon as reasonably the forms that will need to be completed for any practicable after delivery to the Registrar. business wishing to enter BDH. A link to the guide is provide here: guide The one-month stay is to be used to put a proposal to creditors to address its liquidity issues. A Other changes creditor vote must take place before the end of Amongst the changes is a reduction in clawback that one-month stay. period for voidable transactions (other than for related party transactions) from 2 years to 6 Any such proposal must contain sufficient detail months. This is a much-needed change to the to enable creditors to make a reasoned judgment risk exposure, which will be permanent. about it.

To be implemented, the proposal must be approved by 50% of creditors.

Once approved, the moratorium is extended by a maximum of a further 6 months – and is binding on all creditors (except for GSA holders and certain excluded debts – see below).

It is important to note some exceptions to the moratorium, for: •

3

GSA holders: A General Security Agreement holder may still enforce their security at any time – both during the automatic one-month moratorium and through the extension approved by creditors. In practical terms, this means

*Stephen Layburn is a commercial barrister based in Auckland and is a member of the NZBA Commercial Bar Committee. He advises on a wide range of corporate/ commercial matters. He maintains an active involvement in law reform issues, including as a member of (and former convenor) of the Commercial & Business Law Committee of the New Zealand Law Society and is one of the external counsel to the NZX Markets Disciplinary Tribunal. Contact Stephen at stephen@stephenlayburn.co.nz Stephen would like to thank Michael Webb and Callum Reid for their encouragement during lockdown to pen a number of guides on the changes to commercial legislation made in response to the COVID-19 outbreak.

The requirement for a statutory declaration in the first draft of the Bill was dropped during the Parliamentary process.

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15

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Obituary – Dr Gerard McCoy SBS, QC, SC, BA, LLB (Vic.), M Sc (Cant.), SC

By Emma Priest*

Everyone at Blackstone Chambers is devastated to learn of the death of Dr. Gerard John Xavier McCoy aged 63 (Gerry).

prosecution against ‘mutineer’ George Speight.

He also held the position as an expert in Hong Kong law in a number of jurisdictions across Asia, as well as in Australia, New Zealand, Luxembourg, the Netherlands and the United Kingdom.

His family were at his side as he died in Queen Mary Hospital on Tuesday 28 April 2020. His death was peaceful, but was nevertheless a total shock both to his family, friends and the profession. He leaves family in New Zealand who are also deeply saddened. His generosity, spirit and sense of humour touched everyone he met.

In New Zealand he will remembered for his representation of Teina Pora successfully seeking inflation on government compensation paid, and as Dotcom’s lawyer, assisting to unfreeze assets frozen by the US government.

His wife Sze Siu Wai, and his two children, Kim Joseph McCoy, and Zoe Margaret McCoy are heartbroken by his death and ask for privacy at this time. His family also ask that there be no flowers or other traditional kindnesses, but rather that donation be made to cancer-related charities or the Society for the Prevention of Cruelty to Animals in Hong Kong.

Gerard McCoy SC was a leading member of the Bar. His achievements were extraordinary. He was a Barrister in many jurisdictions, including New Zealand, the Supreme Court of New South Wales. of the Supreme Court of Victoria, of the High Court of Australia, of the High Court of Hong Kong, of the High Court of Fiji, of the High Court of the Isle of Man, of the English Bar (Middle Temple).

His achievements as a formidable and effective barrister are widely known. Gerry was a founder of Gilt Chambers in Hong Kong, Blackstone Chambers in Auckland and Valour Chambers in Christchurch. He was a Professor of Law at the University of Hong Kong, and an adjunct Professor of Law at Canterbury University.

Dr McCoy has also served as a Deputy Judge of the Hong Kong High Court and was on retainer to act for the government in constitutional law litigation. He was a constitutional advisor to the Fijian government, as well as leading the

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He has authored texts on Criminal Evidence, Administrative Law and Habeas Corpus.

He was also the General editor of the NZAR, Hong Kong Cases, Law Reports, Hong Kong Public Law Reports, and Archbold: Hong Kong 2004 Criminal Law, Practice & Pleadings.

Gerry was a well-known philanthropist supporting Universities and undertaking significant probono work.

On a personal note, Gerry has been a huge support and inspiration to us at Blackstone Chambers in Auckland. He let us take the reins of Blackstone Chambers in Auckland in 2016. He loved Blackstone. His death leaves a huge gap for us individually and as a Chambers. He was the anchor. Gerry was a giant in all respects. A formidable lawyer; incredibly generous and kind; thoughtful and so much fun. He loved wine and good food. He loved to talk about law and to party.

He was a role model on how to live life. He was a force and will not be forgotten. Like everyone who met Gerry, we have so many great stories which we look forward to sharing as we remember him.

The family will bring Gerry home to Christchurch when global circumstances permit for an Irish wake. Details will follow in due course. * Emma Priest is a barrister at Blackstone Chambers.

We thank Emma for writing this obituary at such a difficult time and offer our condolences to the members of Blackstone Chambers. We have written to express our sympathies to Dr McCoy’s family.

17

Damages for Breach of Contract Under the CCA: a Welcome Clarification

By Belinda Green and Laura Bawden-Hindle The recent High Court judgment in Haskell Construction Limited v Robert Francis Ashcroft lays to rest any residual doubt as to whether an adjudicator can award damages for breach of contract.1 It is a welcome clarification of the position.

a claim for payment under the contract, but a determination as to rights and obligations. As a result, contractual damages claims could not be the subject of an enforceable binding determination: 5 "…a liability to pay damages for a “breach of contract” is not a liability to “make a payment under” that contract. The differentiation between liability to pay a debt and liability for damages is a well-established one. …for a damages for breach of contract determination to come within s 48(1)(a) one would either need to treat an award of damages as being an obligation to pay money under the contract (which could not be the case) or to treat “under the contract” as meaning “arising out of”, which would be contrary to the distinction between matters “under” and “arising out of” an agreement.

This article will outline the background to the issues that have emerged in relation to the extent of an adjudicator’s power to award damages under the Construction Contracts Act 2002 (the Act) prior to Haskell, and summarise the remedies available to an adjudicator in light of this development.

Payments under and in respect of a contract – a real difference?

It is perhaps surprising that the issue as to whether an adjudicator can award damages for breach of contract has been the subject of as much debate as it has.

When the Act came into force, one of its aims was to provide remedies for the recovery of payments under a construction contract.2 Where an amount of money is claimed by one party, section 48 requires the adjudicator to determine whether or not any parties to the adjudication are liable to make a payment under the contract and to determine any questions in dispute about the rights and obligations of the parties under the contract.3 Before the 2015 amendments to the Act, determinations under as to payments under the contract could be enforced under section 59 of the Act, but determinations as to rights and obligations could not.4 In M Van Der Wal Builders & Contractors Limited v Dunphy the High Court by way of obiter noted that a claim for contractual damages was not 1 Haskell Construction Limited v Robert Francis Ashcroft HC Wellington CIV2019-485-593, 21 April 2020.

2 Section 3(1)(c) of the Act. 3 See section 48(1)(a) and (b) of the Act. 4 See section 58 of the Act as originally enacted. This section was amended by the Construction Contracts Amendment Act 2015.

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Therefore a claim for damages falls within the scope of a “rights and obligations determination” and is not a claim for payment under a construction contract and as such is not a s 48(1)(a) determination nor is enforceable pursuant to s 59."

Although the case was distinguished, the reasoning in M Van der Wal was viewed as readily reconcilable in Clark v Central Lakes Homes Limited.6 This result was unsatisfactory, if adjudication was to be an effective clearing house for disputes concerning the performance of construction contracts.

When the Commerce Select Committee reported back on the Construction Contracts Amendment Bill 2015, it recommended amending the requirements for enforcement of an adjudicator’s ‘judgment’ to remove the distinction between payment and other types of determination.7 This amendment was proposed as being in line with the Act’s purpose.

Parliament accepted the recommendation and amended the Act to provide that all determinations made by an adjudicator, including those relating to payments under the contract and those relating to rights and obligations, are enforceable by entry as a judgment of the Court.

In addition to amending the enforcement provisions to make it clear that determinations as M Van Der Wal Builders & Contractors Limited v Walker [2011] CIV 2011-004000083 [2011] NZHC 1052 at [98]-[99].

Clark v Central Lakes Homes Ltd [2016] HC Christchurch CIV-2016-425-25 NZHC 1694 at [34].

7 Construction Contracts Amendment Bill 2015 (97–2) (select committee report) at 4.

5 6

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to rights and obligations are enforceable, the 2015 amendments went further. They expanded on the list of examples of disputes that can be referred to adjudication to include reference to a dispute as to whether there has been a breach of a term of that contract (including a term implied under another enactment).8 Further, a new definition of ‘payment’ was also inserted, defining ‘payment’ as a progress payment or any other type of payment for or relating to construction work for which a party is entitled to payment.9 The amendments clearly went some way to clarify the scope of an adjudicator’s jurisdiction, and clearly signalled that the disputes that might be the subject of an enforceable determination were to be wider than simply disputes as to what payments may be due under the contract.

On their face, the 2015 amendments might have been thought sufficient to make it clear that adjudicators were empowered to award damages for breach of contract as well as in respect of payments due under a contract, and that those awards are equally enforceable under section 59 of the Act. However, the debate as to whether an adjudicator could make an enforceable award of damages for breach of the contract under section 48(1) persisted. While the scope of an adjudicator’s jurisdiction was clearly widened, there remained a school of thought that the amendments had not gone far enough to empower an adjudicator to do so.10 While proponents of this view accepted that the purpose of the amendments was, in part, to resolve the issue as to whether an adjudicator had jurisdiction to give an enforceable determination for payment of damages for breach of contract, it was argued that the issues raised in the High Court, in cases such as M Van Der Wal, had not been fully addressed by these amendments.11 It was suggested that a determination which finds that a party is obliged to pay damages for breach of contract is not a determination about the rights and obligations of the parties under the contract because, unless there is some special provision in that contract which requires damages to be paid for breach, the obligation to pay damages for breach of contract is not a primary obligation under the contract.12 Haskell Construction Limited v Robert Francis Ashcroft This debate has now been finally settled in Haskell.

The judgment makes it clear that adjudicators do have the power to make enforceable determinations in respect of claims for damages as well as payment claims.

See section 25(2)(b) of the Act. Section 19, definition of “payment”.

10 See, for example, Andrew Skelton “Construction adjudication case law: some interesting issues” (paper presented to AMINZ, November 2018-Feburary 2019).

8 9

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Haskell Construction Limited (Haskell) entered into a contract to construct a home for Alpine Prime Properties Limited (Alpine). Shortly after works commenced, complications arose which required further work. The further work became the subject of a variation, and added to the cost of the work significantly. A payment claim for the variation was disputed, and the contract was cancelled.

This led to a number of adjudications. The third of those adjudications included, amongst other things, a claim for damages arising out of a breach of contract. Haskell sought a declaration from the High Court that the damages claim was outside the scope and jurisdiction of an adjudication under sections 38 and 48(1(a) and (b) of the Act.13 The High Court dismissed the application for judicial review on this point, finding:14 The text of the legislation and the relevant purpose support the ability of an adjudicator to not only make rights and obligations determinations for breaches of the implied warranties but also to determine that a statutory remedy applies. Such remedies include the award of damages and compensation for any reduction in value of the product of the building work, below the price paid or payable for that work, and any loss or damage to the client resulting from the breach, that was reasonably foreseeable, as liable to result from that breach.

As a result of Haskell, an adjudicator clearly has jurisdiction to make enforceable determinations both as to: •

•

whether or not parties to the adjudication are liable to make payment under a contract, and whether or not parties to the adjudication should be awarded damages for breach of contract or any other statutory obligation.

Although it did seem obvious that the 2015 amendments were intended to make it clear an adjudicator had the power to award damages for breach of contract, Haskell is a welcome clarification of these issues. * Belinda Green is a solicitor in the New Zealand Dispute Resolution Centre’s KnowHow Team. She has over 16 years’ experience, working in both private and government sectors. Laura Bawden-Hindle is a law clerk in the KnowHow Team at the New Zealand Dispute Resolution Centre. She is currently studying at Victoria University of Wellington.

11 Andrew Skelton “Construction adjudication case law: some interesting issues” (paper presented to AMINZ, November 2018-Feburary 2019 at 14.

12 Skelton, at 15.

13 Haskell, at [14].

14 At [60].

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Member Benefits News Lisa Mills*

NZBA member benefits offer discounts on range of goods and services. The discounts offered vary from product to product, but regular use will offset some of the cost of your membership fee as well as allow you to go ahead and shop without having to wait for the next sale.

Many of our member benefit partners, such as Noel Leeming, Office Max and of course Marsh and LexisNexis, have been able to continue to supply us during the lockdown. Now that we are in level 1, many more of them are open.

Whether you want to send flowers for a birthday or alternatively give a plant, order some wine with a difference or take a short break down south (or up north for those on the Mainland!), it is time to check out our offerings. We have one or two new ones you might not know about.

New member benefits: Active Adventures Active Adventures is New Zealand’s largest, most globally diverse adventure tourism business and has been operating in New Zealand and around the world for almost 25 years. They offer a range of predominantly hiking-focused, all-inclusive and fully guided tours ranging from 2-14 days. They can help you arrange your next NZ getaway.

NZBA members receive 10% off advertised rates (not available with other offers).

Bidfood Home – Traditionally Bidfood serviced cafes and restaurants but recently they began offering home delivery to the domestic market.

Although the range is not huge the portions are and the prices good. – Author’s note. I placed a Bidfood order to try it out. I was very happy (ordered Friday, delivered to my home in Waitakere foothills Monday morning). The meat was a bit of a mixed bag, some great value and quality, some not so much, some fresh, some frozen (including a 3kg leg of lamb for $15.49 inclusive GST). I got peanuts, yeast, flour… all things that have been missing in the supermarket lately. Definitely worth a try!

FRED (Fresh Roasted Every Day) Coffee not only provides beautiful tasting coffee (whole beans, a variety of grinds and flavours) but is very reasonably priced and offers NZBA members a 15% discount.

Fast delivery from this local business. – Author’s note: I personally have been buying FRED Samuru coffee beans for more than 10 years and although at times I have tried other brands I always come back to this beautiful tasting product.

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OP Creative is a custom website design and content creation agency based in Auckland specialising in the design beautiful and intuitive websites and content specific to a client’s individual business needs. We take the time to learn about you, your practice and your requirements so we can implement a solution that will grow your business in a meaningful way and help you stand out from the crowd. Just out on your own or ready to take your online presence to the next level, they can help with website design, creation, support and maintenance, logo and stationery design, social media and marketing, and much more!

OP Creative offer all NZ Bar Association members a 20% discount on their fees. See the NZBA website or benefit app for more information. OP Creative offer all NZ Bar Association members a 20% discount on their fees. See the NZBA website or benefit app for more information.

Previously advertised but now offering a 10% discount to NZBA members, Star Legal Transcription is a Barristers Transcription Service with 30 years legal experience. For all your typing requirements try this fast/accurate/professional service. Easy iphone/email upload 24/7. For more information contact Lisa Hodge E: lisa@starlegal.co.nz Popular Benefits Provider you may have missed • Base 2 Managed IT • Big Save Furniture support • Torpedo 7 • Noel Leaming • MAS – Income Protection Insurance • Technological Limited

• Millennium Hotels and Retirement • Heritage Hotels (25% investment advice • Teamwork IT Services off best available rate through to Dec 2020) Benefits Coming soon…. Gruzo Tyres, Love to Give Gift Hampers, The Coffee Club and Pita Pit If you have not already downloaded the App we urge you to follow the step-by-step instructions, and do so today! It really is worthwhile. Who wants to pay more if you don’t need to! You will then be able to access the discounts quickly when ordering online or instore, just by opening the app.

Note: Your member number can be found in your Member Portal under the Personal details tab. * Lisa Mills is our Membership Administrator and Events co-ordinator. She can be contacted at nzbar@nzbar.org.nz.

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App Instructions to download the NZBA App and register.

-

3. Enter your details and click create. (NB: your password does not need to match your NZBA website password).

Phone: 09 303 4515 Email: benefits@nzbar.org.nz www.nzbar.org.nz

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21

Interview with Morgan Evans, Aotearoa Legal Workers' Union The Aotearoa Legal Workers' Union was established in February 2019 to represent workers at legal workplaces in Aotearoa. It advocates for fair treatment and accountability in the profession. We recently caught up with one of its co-presidents, Morgan Evans to talk about how the union has developed over the last year.

Can you remind us of why the union was set up and tell us why you yourself became involved in it?

The key drivers for ALWU were the #metoo movement and the incidences of sexual assault that occurred at Russell McVeagh in the summer of 2015/16, which demonstrated so clearly the pervasive and dangerous power imbalances in our profession. This also led to consideration of other consequences of that power imbalance – for example, low pay, long hours and burnout. After the events of that summer came to the light, it became clear that legal workers did not feel empowered to speak out about these issues in their workplaces.

The union was a way of giving them a voice.

In terms of my own personal drivers, I wasn’t initially part of the group that set ALWU up (although a number of them were friends). I was a summer clerk at Russell McVeagh during that 2015/2016 period but chose to work at another law firm, where I had been for just over a year when the union was set up.

Obviously, I’m a white middle-class male. For that reason, I wasn’t personally affected by the events that occurred during that summer and haven’t had to jump many of the hurdles that others face just to participate, never mind succeed, in the profession. Instead, I found that I thrived within the law firm environment because so many of the structural issues that the union is working to address do benefit people like me.

So your own interests are best served by the existing position that those who worked long hours and could put up with the initial low pay, would later benefit more?

I was initially thought to be “too corporate” for the union. In fact, I was invited along to my first ALWU meeting because the interim Executive thought

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that, if they could convince me that unionisation was a positive step, they could convince anyone!

I was an easy sell and have been heavily involved with ALWU ever since. For me, it is all about using my position of privilege to do something positive and to make a difference for others.

Part of ALWU’s message is that even if you are set up to succeed in the profession or are in a good team or at a good firm, there are others who aren't and are struggling. Again, it’s about recognising that you have been lucky and seizing the opportunity that affords you to help others.

In an article, you quoted your grandfather who said that much is given to you and therefore much is expected of you. Is that how you would sum up your involvement?

Yes, that is something I believe in and it rings true for lawyers in general. We are people to whom much has been given and that places a responsibility on us to give back to our communities. It is really what ALWU is all about: lifting each other up and creating a profession that lifts society up as well.

Your executive seems to be made up of people very much like you, people who are starting out in the careers. Is that a fair comment?

The Executive contains a broader range of ages and experience than people think. We are lucky to count senior associates, barristers and an Executive Manager among our ranks. That said, it would be fair to say that the driving force behind the union is a group of young people who are coming up through the junior ranks of the profession and saying that they won’t put up with the status quo – the promise of big money 10 to 15 years down the track isn’t worth low pay and overwork now. We want to do things a different way.

Have you discovered new drivers now that the union is more established or has your focus changed?

No, the core focus hasn’t changed but we are having to think very carefully about how we

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address the issues facing the profession and what the best ways to work with its various stakeholders to do that are. There hasn’t been a union for legal workers for a long time, so we’re figuring out how a union should behave in this space and what kind of value it can add for its members.

What kind of response have you had?

By and large it has been pretty positive. When things have been done a certain way for a long time you have to expect some pushback when you come along and propose a different approach.

We have experienced that at times. But law firms are the sum of their parts, and their parts are people. So, they are very conscious of the need to recruit and retain good people. They do want to keep those people happy and support them in growing and developing. There is a lot of scope for working together.

The challenge for us is to show employers that doing the things we think they should be doing to look after their employees is in their interests as well. Where we have been able to do that, we have had real success. For example, most large firms now have minimum wage monitoring mechanisms that top-up salary payments to junior staff who work so many hours that their effective hourly wage is less than minimum wage.

They also facilitate check-ins on the health and wellbeing of those staff.

How do you fit in the type A personality, who does want to keep going in the traditional way? Are you saying they should not get ahead even if they are working twice as hard as others?

That’s an interesting one because for some people, living that lifestyle is what they want and also isn’t necessarily bad for them. It depends on the cloth from which you are cut.

My personal view is that the challenge that the union faces is making the profession a space in which anyone can thrive, and one that accepts and celebrates people working in a variety of different ways with a variety of different ends in mind. You should be treated with respect and the contribution that you make to your firm should be valued whether you are working 9-to-5 or 9-to-midnight.

We are not saying that everybody in the profession should be working 9-to-5. That just isn’t a practical reality. What we are saying, however, is that people should be paid for the hours that they work, we should be monitoring those hours and there should be checks and balances in place to make sure that they are healthy and safe.

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We have had some interesting conversations with a range of stakeholders around this issue. For example, we had a great meeting with WorkSafe and all of the large firms at the start of the year and discussed the drivers for the “workaholic” culture within the profession and how it impacts on legal workers’ wellbeing.

A big topic for discussion at that meeting was the fact that so many lawyers have type A personalities that push them to and over their limits to succeed. That changes the nature of ALWU’s work too. The classic union/employer narrative involves a union protecting its members from exploitation by their employers. When we talk to employers about issues like minimum wage compliance, we are asking them to put systems and structures in place to ensure that they are not paying staff less than their statutory entitlements.

That protects our members from exploitation.

But it also empowers employers to step in when people are at risk of burning themselves out – protecting them from themselves. That isn’t an issue that most unions are thinking about.

There are, of course, client expectations around delivering work in ridiculous timeframes and we also discussed how the profession can change those expectations. It’s a difficult one because a lot of clients would probably say that they don’t expect juniors to work ridiculous hours. But if an urgent piece of work needs to be done, often those positions fall by the wayside! Where that kind of work is necessary, ALWU’s view is that the people doing it should receive a fairer share of the money that is made because of their efforts.

Is there a corollary with other professions such as junior doctors in hospitals?

Well, yes in so far as there is an expectation that when you start out you do the hard yards and reap the benefits further down the track. But doctors are getting paid for every hour that they work, and their union is dealing with one big central employer. That makes things easier for them. It has, however, been good to see the junior doctors taking industrial action, because it shows that it’s not impossible for other professional service providers to take similar steps.

Unfortunately, one of the challenges that we face is that people in general are quite sympathetic towards junior doctors who are providing a service that society values. There is less public sympathy towards lawyers! Our public messaging, therefore, is different – we are saying “hey, if you pay a lot of money to have a law firm do an urgent job for you and a clerk or junior lawyer works until 3 AM

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to get the job done, but receives very little by way of salary in return, who is benefitting here? Let’s all be treated more fairly by the powers that be in this situation.”

Are you getting any comments or complaints about the way junior litigators/counsel are being treated by seniors or in court?

Very infrequently – but yes, and the Bar Association probably hears the same stories that we do, that bullying starts at the top. We don’t always see counsel appearing in the courts treated with the upmost respect, although that might seem appropriate where they have failed to prepare properly. Those power imbalances definitely exist. Interestingly, we have a lot of judges’ clerks as members and pleasingly they report that they are well looked after, whatever happens to counsel in the courtroom.

There are stories about some judges who viewed every time they sat on the bench with junior counsel appearing before them as a training opportunity. Should we encourage judges to view themselves as part of the training process?

Well, that has been my experience of appearing and generally I understand that judges are very forgiving of junior counsel. But I imagine the approach changes judge by judge.

My impression is that there is a big push to get junior litigators into court. The more that you can do to bring people up through their court experiences and the more opportunities that less experienced counsel have to get on their feet, the better. They are likely to be better quality senior counsel down the road, so it will ultimately benefit the courts. I expect this is something of which the judiciary are conscious.

What do you think the legal profession will look like in future for people of your generation and how will that impact on your union?

The first big question is going to be how will the profession emerge out of Covid 19? The union was building towards collective-bargaining in the next year or so as a way to increase membership and add tangible value for members. That followed on from our focus on minimum wage and overtime issues.

Now our focus is on advocacy work – supporting lawyers who are affected by pay reductions and redundancies arising out of Covid 19. So hopefully in the immediate future, the profession will be one

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where people are still employed and are able to earn a decent wage.

The other question is obviously how it will affect how we work? Will we stay in our big city offices or will more people work from home? Will the courts use AV facilities more often? Hopefully, it will precipitate a shift to electronic filing - the number of trees that are killed by a work in the courts surprises many junior lawyers when they join the profession.

What about the impacts of technology in general?

The pundits say that it will lead to a greatly reduced legal profession, perhaps sooner than we expect – in fact one has said within six years.

As a union, we are thinking more about the people side of things than the tech side. Change always presents opportunity and while we will lose some things that lawyers have traditionally done, there will always be other ways in which we can add value. I’m still hopeful and I get the sense that my contemporaries are still hopeful about their future as lawyers. And, of course, tech can improve access to justice, which is a really great thing. So ALWU sees technology as an opportunity, not an enemy.

What are your immediate needs for the union?

We started off advocating for our members in a broad sense – pushing for changes to the way that people are paid in the profession and for accountability for the events of 2015/16. Now we are focusing on advocacy in a narrow sense – assisting individuals who need our help right now.

To provide that assistance to members, we have formed an Employment Law Committee, chaired

by Maria Dew QC, to provide them with general guidance on employment law issues. We have also begun offering members pro bono legal advice via ALWU’s Pro Bono Panel, which consists of several senior employment law specialists. Our ability to provide that assistance is dependent on people volunteering their services – so volunteers are our biggest immediate need. * Morgan Evans is the co-president of the Aotearoa Legal Workers' Union which was established in February 2019 to represent workers at legal workplaces in Aotearoa. If you want to get involved with the union and in particular its new Pro Bono Panel, please contact Morgan at president@alwu.org.nz. You can find more information about the union at https://alwu.org.nz/

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Getting Back in the Saddle – Post Level 4 Lockdown

By Genevieve Haszard, Barrister*

NZBA Member Genevieve Haszard draws comparisons between her concussion injury and getting back to work post lockdown.

Five weeks prior to the Level 4 lockdown I suffered a concussion.

The effect was not immediately apparent but within a couple of days, I had a dawning realisation I was not ok and I could not operate at the level I had the week before.

I experienced a range of emotions. Denial, frustration, upset, fear, resignation and eventually, but reluctantly, acceptance. I had to accept I could not work the hours I had prior to the concussion. I could not manage work, children, life all at the same time. I could not ride or even handle my horse, which is an integral part of my work/life balance strategy. I had to rest, and my recovery was going to take time.

As my physio recently told me, these realities are all well and good but try telling that to an “A” type personality. I suspect there is a high proportion of “A” type personalities within the legal profession.

It is part of why we are so good at what we do.

Do we want to return to how it was before or is there benefit in working from home? Will this help us balance family obligations? Every one of us will have our own circumstance that requires reflection. And this is where I see a direct parallel between my recent concussion and our gradual return to everyday life.

A few weeks ago, I discussed with my physio getting back on my horse. I had an intuitive sense that my recovery would improve if I could get back riding. My physio agreed but was clear that any return to riding required a plan and graduated steps to get me back on the horse. The key parts to the plan were little steps at a time. Making sure I developed my reflexes again before I got on.

As a result of the careful planning and sticking to the plan, I did get back on my horse and it was a success. While I was aware of my limitations, I felt confident. I could not ride as long as I usually could, prior to my concussion. Fatigue set in pretty quickly. I had to accept that. However, I am building those little steps at a time and curiously, finding I am riding better than I had prior to my concussion.

I approached post alert life in the same way. I

I marvelled at how quickly the legal profession, barristers in particular, adapted to work within the level four paradigm. The leadership from our Bar Association executive was fantastic. Our ability to adapt and evolve quickly is evidenced by the fact that within three weeks of lockdown we could appear in court from our homes by AVL, we could see our clients in prison from our homes by AVL and allow for swearing of affidavits remotely.

These were quite extraordinary developments.

So now we are preparing for the future. What will that look like for our profession? Covid 19 has taught us to plan for the unexpected and to look at our working lives as being only a part of everyday activities - rather than life being what happens around work. How will that change our approach?

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planned. I anticipated that rushing back to the office and taking a "business as normal" approach would not work. I had to deal with my children's return to school, address issues around the availability of my PA and think about whether it might be more sensible to stick to some of the systems I had put in place during the lockdown.

I also wondered what the court would do. Would it still limit unecessary face to face appearances or be back to business as usual? Would the contact tracing requirement add a sufficient time burden that we would need to restrict the number of defendants appearing each day even further?

If we implemented set times, how would that work in practical terms with the time attendances challenges we often have with some of our clients?

While many of those questions are answered, we know that we will need remain flexible in our approach and ready to adapt on a reasonably regular basis as unfortunately Covid is not over.

This all takes additional mental energy and can tax an already overloaded system.

So I encourage you all to review your planning now. Reflect on your own personal circumstances.

Be honest about what works and what doesn’t.

Think about the steps you need to take to practise well and with confidence, both during Covid and beyond.

What we have all experienced over the last seven weeks is as unexpected and debilitating as my concussion. Be kind to yourself and those around you by accepting what you can do and what you can’t. In doing so, you’ll successfully get back in the saddle and enjoy the ride. * Genevieve Haszard Is a barrister based in Tauranga.

She has over 20 years experience in the legal profession and practices in both the criminal and civil jurisdictions.

Genevieve recently chaired the NZBA’s virtual Happy Hour Sustaining Peak Mental Performance - Introducing Mindset 2.0 with Bruce Ross. For more information visit https://genevievehaszard.com/ If you are experiencing stress or anxiety, the Law Society has a free and confidential professional counselling service. This is available to anyone in a legal workplace lawyers and non-lawyers. The service is available every day of the year and every hour of the day. For more information refer to https://www.lawsociety.org.nz/ practice-resources/practising-well/legal-communitycounselling-service.

MAS Members can also access the MAS EAP Counselling scheme. For more information, refer to p35.

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The Future of Managing Our Money

By MAS Team | 14 April 2020

This article was republished from the MAS HUB

But this increased financial productivity isn't fuelled by traditional financial goals.

The world of personal finance is changing rapidly with new trends, apps and other financial products promising financial simplicity and success. We have more choice than ever before about how to manage our money, but it's also becoming harder to work out what's in our best interests – now, and well into the future.

"The traditional dream of home ownership is not only increasingly out of reach amongst Gen Zs and Millennials, their priorities have also shifted – travel and community engagement may outweigh owning a home and starting a family for example.

Jason Leong, CEO and co-founder of PocketSmith, an online money management app, set up his Dunedin busines 11 years ago and says he has witnessed first-hand what he calls the biggest period of change in money management in recent history.

Money management trends While some people are getting left behind with this personal finance evolution, Jason believes others are thriving with tribes of finance-savvy people congregating across the internet.

"People are becoming more curious about their money journey – looking for new ways to manage their money and constantly tweaking their finances so they can be more productive."

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"We're seeing many different definitions of what it means to live a 'good' life. That is exactly why we built a tool that helps people manage their money for their own unique situations."

The tool in question is PocketSmith's software that offers a calendar that accounts for upcoming income and expenses, allowing customers to forecast for the future. Jason says the goal was to steer away from a one-size-fits-all approach to personal finance, particularly because the way New Zealanders are earning is changing dramatically.

"The growing variety of ways to earn money has disrupted the traditional view of how income is generated. Take digital nomads for example, who can work from anywhere, and people generating multiple income streams from so-called 'side hustles'."

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Usually associated with Millennial workers, Jason says different generations have different versions of the 'side hustle', from retirees renting properties on Airbnb to younger generations freelancing as they travel the world. We're earning in diverse ways, so Jason argues we need flexible, personalised and automated ways to manage our finances, which is where platforms like PocketSmith come in.

"I'd be surprised if, in 20 years, banks have anything like the networks they have now. They are already steadily and discreetly scaling them down because people are no longer keen on waiting at the bank.

But this innovation brings with it new challenges, with a recent study by PocketSmith finding that users in New Zealand seem less digitally engaged with their finances that their counterparts in Australia, the US and the UK.

PocketSmith's Jason agrees: "Our finances are always going to be complex enough to warrant a little human interaction, but there's going to be a lot less than we're currently used to.

In fact, users in Australia, the US and the UK spend between 5.8% and 9.7% more than Kiwi users on PocketSmith's digital tools. Kiwi users are also the least likely to ask for help about their personal finances out of the four countries tracked.

Upgrading our thinking, not just our apps In the face of all this change, Jason says the future of successful personal finance management will require education and understanding in the digital space.

"The problem is that education in financial management just hasn't kept up with technology, especially in New Zealand. We've built this ability to pay without physical money, but we haven't kept people up to date in actually understanding how digital payments work. And with today's speed of commerce, a lack of clarity can result in consumers being taken advantage of."

The recent PocketSmith study revealed we're seeing less change and innovation in personal finance in this country than in Australia and the UK, but this needs to change.

"We no longer want that face-to-face contact, and we don't need it either because much of our business can be transacted in other ways."

"In the old days you'd walk into a bank and it would be a one-stop shop. But as technology enables companies to offer different financial services, like loans and investments, we're going to see a lot less of traditional banks."

The future So where does that leave us? How can we here in New Zealand keep up with the changes?

It's a big question but the answer is simple in Jason's mind – educating ourselves. We need to demand more information from the banks and brands we work with and take time to understand what our financial situation looks like now and what it could look like in the future.

And according to Jason, with even more innovations like open banking and the prospect of a cashless society looking on the horizon, there's no time like the present to start learning.

Top tips 01

Set yourself up with a money management tool or meet with a financial advisor and take a long, hard look at your financial situation together. Efficient money management starts with getting full clarity of your financial situation, however confronting it might be.

02

Create a forecast for the future, especially if there are likely to be major changes to your finances – for example, if you're planning on buying a house, starting a family or retiring.

03

Sit down with your bank and ask them to take you through their online banking systems and apps. This will make the transition to digital a little less confronting or reveal handy features you didn't know were available.

"We can now earn and spend faster than ever before, so we need to upgrade our ways of thinking about our finances, and that starts with education, which I think is lacking in most countries.

"In this day and age, prescriptive, cookie-cutter solutions are increasingly less relevant to a person's individual situation. We need to realise this and take an interest in learning how to take control."

Fewer humans, more AI Despite the apparent hesitance to go digital, Massey University's Professor of Banking David Tripe expects to see a continuing reduction in New Zealand's bank networks and human interaction as artificial intelligence becomes more widely used for personal finance management.

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The Relationship Between Time and Investment Returns – the Fruit Tree Analogy Patrick Fogarty*

One of the most important concepts to understand when it comes to investing is the relationship that exists between time and return. Investing is an inherently risky business, we all know this, but what is less commonly understood is how the chances of having a negative return diminish through time if one has a disciplined strategy.

Despite this notion being well supported by evidence, communicating the importance of this relationship can be challenging. People have a natural tendency to look for opportunities, to spot patterns, and to believe that the defining characteristic of a ‘good investor’ is someone who can predict what will happen ahead of time and capitalise on it. This, on the surface, feels intuitive. Partly because for years this has been the dominant investing narrative to which we have been exposed, but also because the idea is

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inherently exciting. The allure of the professional investor, beating the odds and outwitting the market can’t be understated.

Although exciting, investors who approach the markets with this mindset, more often than not, destroy value, rather than create it. This is borne out in countless academic studies and industry performance tables. Yet despite the weight of evidence, to quote the late Alexander Pope: “Hope Springs Eternal”. Data provided by SPIVA helps us to understand this by looking at the performance of over 10,000 actively managed investment funds, comparing their performance against the markets that they are paid to beat. In every fund category listed, over a ten-year period, the percentage of managers failing to beat the market exceeds 80%.

The common question we hear, following the consumption of data like this, is: “Does that mean we have to settle for market returns?”. This question cuts at the central theme of this article and exposes the main idea we seek to clarify,

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that by deploying a disciplined and diversified approach to investing, time is the ‘secret sauce’, not foresight.

There are many ways to communicate this idea.

We recently read an article by economist, Ben Brinkerhoff of Consilium, that we feel encapsulates the notion perfectly, so we thought we would share his analogy.

“I love orchards and fruiting plants. So, I have a habit of visiting plant nurseries and gardening stores just to gather information, even when I’m not sure what I’ll buy. One day, I went to a garden centre to look at apple trees.

I asked the owner: “So, when is the best time of year to plant an apple tree?”. He responded: “Now”.

Unfortunately, I still needed to do quite a lot of work to prepare the ground and I wasn’t quite ready to purchase an apple tree at that moment.

But I made a note to myself to come back at the same time next year.

About six months later, I found myself back at that same garden centre gathering more information.

Again, I was looking at apple trees and once again asked: “When is the best time of year to plant an apple tree?”. The owner responded: “Now”.

“Wait a minute”, I retorted, “didn’t you say that six months ago was the best time to plant an apple tree?”. The owner looked at me wisely and said: “The best time to plant an apple tree was actually 10 years ago”.

A lot of investors ask themselves the question: “When is the best time to invest in shares?”.

They may think: “Prices are down, now is a good time to invest”. Or, perhaps they think: “Prices are down, maybe I should wait”. But by trying to figure out the right time to invest in shares, most investors really just accomplish one thing.

They don’t invest in shares.

Most investors we work with count their investing time horizon in decades. With advances in modern medicine, a 65-year-old new retiree should really think about their money lasting three decades. If that’s true of a 65-year-old, then a 40 or 50-yearold may have half a century to invest.

The reality is that for an investor who counts their time horizon in decades rather than months, there is never really a bad time to invest in shares.

But how can that be true?

Well, just look at the long-term data. It’s possible to look at 30-year investment windows to see how shares have performed. We can view data for the S&P 500 Index going back to January 1926.

For example, if you invested in January 1926, you would have completed 30-years of investment

by December 1955. This 30-year window would have included the Great Depression, World War II and the Korean War. Given these events, you’d think this time frame wouldn’t be a particularly good time to invest. However, over that 30-year window, the S&P 500 Index earned a compound return of 10.2% per annum.

From December 1955 until March 2020, we can examine a further 772 different rolling 30-year windows to see how all long-term investors in the S&P 500 Index would have fared. What is startling in the chart below is the consistency of returns which, two thirds of the time, range between 9% and 12%.

During the best performing 30-year window, an investor earned a compound return of 14.8% per annum. But even over the lowest performing 30-year window, an investor still earned a tidy 7.8% per annum compound return. The

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investors who achieved the 7.8% p.a. returns started investing the month before the 1929 share market crash. Still, if they stayed the course and maintained their investment, their returns would have been just fine. The median return over all rolling 30-year periods was 10.9% p.a.

In New Zealand, we can look at NZX 50 gross index returns going back to July 1991. For those counting, that is 345 months ago. So, it will be a little over a year until we complete our first 30year time horizon using that particular index.

However, we can still calculate the returns if an investor had started investing in July 1991, and simply bought and held the NZX 50 index.

Our last complete month of observations was March 2020 when the NZX 50 index experienced a negative 13% return. All the same, an investor who began investing in the index July 1991 and maintained their investment, experienced a compound return of 9.54% p.a. Remember, this time period includes the Asian Financial Crisis, the tech wreck, the Global Financial Crisis and the start of the COVID-19 downturn. It includes all those shaky markets, yet the compound return is still 9.54% p.a.

With this in mind, I can see the wisdom of the person selling fruit trees. In my back yard I have a pear tree which is approximately 30 years old.

This season it produced a bumper crop of fruit, so much that I gave fruit away, bottled what I could, ate fruit every day along with my entire family and I still couldn’t keep up. But those apple trees I bought just a few years ago… well let’s just say that they are coming along.

If I want a productive garden of fruit trees the most important thing is to start. The timing isn’t the critical element. The man at the store knows that when people feel it isn’t the perfect time to plant a tree they delay, they move on to other things, they forget about it, and often they’ll miss years of productive growing time, all because they were waiting for the perfect time.

For most of us investing for a lifetime, the time to start is nearly always now or even better, 10 years ago. As the phrase goes, it’s time in the market rather than timing the market that really matters, for the investor and for the amateur orchardist.”

There are many ways to think about the investment markets. We are all subject to behavioural inclinations that can sway our decision making, especially over the short term, and most potently during times of extreme volatility. It is during times like these that it pays to stand back, look at what the evidence tells us, and take comfort that if you are investing for your future, and you plant a few trees, you’ll likely be fine. * Patrick Fogarty is a Client Director at The Private Office. He returned to New Zealand in 2019 after 10 years in London with the global asset management firm Dimensional Fund Advisers. There he helped grow the business into one of the largest fund managers in the UK and Europe. He is experienced in communicating the evidence-based investing approach and is a regular speaker on the subject. He is passionate about communicating the principles of successful investing and helping investors make smart decisions with their money. A disclosure statement is available on request and free of charge.

Upcoming NZBA Dinners Wellington Silks Dinner, 30 July 2020

We are looking forward to our rescheduled Wellington Silks Dinner on Thursday 30 July 2020 at 6.30pm at St Johns Bar and Restaurant.

This is a long overdue celebration, not only for Karen Feint QC and Nicolette Levy QC, but for the profession.

Auckland Combined Bench and Bar/Silks Dinner

We are hosting a combined Bench & Bar/Silks dinner at The Aquamarine Room, Hilton Hotel, on 12 August at 6.30pm. The dinner will celebrate admission to the Inner Bar of Auckland based silks: Simon Foote QC, Stephen Hunter QC, JulieAnne Kincade QC and Janet McLean QC.

These dinners are a great opportunity to get together again. Partners, non members and the judiciary are welcome to register and attend. Please visit our website for more information and to register.

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Petrol Heads’ Corner

by David O’Neill*

I wrote this while sitting at home, blowing bubbles in a bubble and restrained under the alert level 4 lockdown.

Consequently, I hadn’t had a chance to drive anything.

Unfortunately, crashes are something that happen in racing. They say there are those drivers that have crashed and those drivers that are going to crash. There is no middle ground.

Lockdown Driving

I never thought I would see the day when I would get excited about driving to the supermarket. We rotated the cars to make sure they could both start and I confess that pulling out of the drive gave me that little frisson of excitement. Tragic!

As a result of Covid-19 I decided to do some driving of my own in my secure location. I put my thinking cap on, got the juices running and decided to undertake a Le Mans style start to the race by sprinting across the lounge and leaping into my virtual car.

A push of the button saw the car roar to life and I slapped it into first, spun the wheel to the left and roared out of the lounge down the hallway.

The tyres weren’t warm so the first corner into the bedroom was taken a little bit wide with the back end starting to slide forwards the Armco on the bedside cabinet. Fortunately, the car straightened up and was able to tear round the bedroom, swiping the apex on the other end of the bed and then out the same door and back down the hallway.

Targa Bambina However, pre-lockdown, I was able to take part in the Targa Bambina which was run on the 6th, 7th and 8th of March. It was based in Hamilton, which was a bonus because I could go home to my own bed at night.

It was a very small field. I’m not sure why (maybe some of them could foretell what was going to happen). Nonetheless, it didn’t make the driving any less fun. We were in class 4 of the competition. This is for all cars under 2 litres, irrespective of age. My only other competitor was a 2017 Toyota 86 GT. To say they are in different eras is understating it. This car can turn on a dime, out-accelerate me and has brakes bigger than my wheels. Added to that is the fact the driver is very good and very quick.

Taking the hallway corner into the dining room was always going to be tricky, as the apex was blocked somewhat by a schoolbag, which meant that I had to go wider than necessary. Racing across the carpet I encountered a new surface which was the cork flooring in the kitchen and family room.

He, unfortunately, decided that he couldn’t be bothered going left or right at the T junction, went straight ahead and punched his car into the bank on the other side of the road, thereby ending his Targa prematurely. He was several minutes ahead of me and could have put the car in reverse and got home quicker than I could have.

As a consequence, I was first in class 4. I’m positive it’s the slowest class winning car ever in the history of Targa. I am sure I’m going fast but my times say otherwise.

Be that as it may, I think I’m going fast which is the main thing and I didn’t crash, which he did.

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The corner into the family room was extremely tight and on this new medium, the car started slipping sideways and clipped the pantry door before it careered into the couch and then spun wide into the middle of the family room, reducing the coffee table to splinters.

I was able to restart the car, whipped it into reverse, backed away from the coffee table, ripped off round the couches and back into the kitchen with a quick circuit around the cat bowl and then into the dining room and back towards the lounge where it all started.

Being Le Mans, this was to be a 24 hour race, so I decided to retire the car for dinner and then, having eaten and drunk my fill, hopped back into my virtual car and proceeded to race again. After a few wines, the progress became somewhat more hectic with haphazard cornering, wandering across the straights meandering down paths and the coffee table in the family room was again reduced to splinters (reconstructed for the virtual race).

vehicle I have ever sat in. Its size is something else; the cabin is like someone’s lounge. There really isn’t anything quite like it that I have ever been in. I have been in many luxury cars but nothing as luxurious as the Phantom. Coupled with the V12 motor, which does make this beast get up and go, it would have to be one of the favourites of the oil companies. It uses petrol at a prodigious rate, and I imagine the servicing costs are stupendous. Despite that, it deserves the tag of being the most luxurious car in the world.

By about 10pm, halfway through the race, I felt the need for a driver change and tossed the keys to my virtual partner and went to bed.

The next day I re-joined the race, the car was in one piece and we started to push hard towards the finish. The finish line came up after many, many laps. The car was running well despite a bit of panel damage and we coasted over the line first (and last) because we were the only car in this particular race. The crowd went wild………

Best sports car

As you can see, Covid-19 isolation lockdown allows the imagination to run amok. When coupled with cabin fever [and, it would seem, the odd wine – Sub-Ed], it can lurch quietly out of control.

I’ve driven several sports cars in my time. I have had the pleasure of driving the Audi RS5, Audi R8, Audi TT and Porsche 911 Carrera. To be quite frank, it’s a toss-up between the Porsche 911 and the Audi TT. The Porsche was a very easy car to drive. You can go down and get your milk and then go for a blast in the hills. It didn’t carry anybody in the back, but does that really matter? You’re not buying it so you can lug the kids off to school. The Porsche was very quick, handled beautifully, was beautifully finished and really is one of the dream cars, in my mind, that I could drive.

My favourite drives I thought I’d end this article with a comment on some of the favourite cars that I have driven in reviewing cars. These are in no particular order and are really in classes.

The best luxury car This would have to be the Rolls Royce Phantom.

Despite the fact that it had a wheel skinnier than Twiggy and coupled with the fact that it was made of hard plastic, this was the most luxurious

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The Audi TT is a different car altogether. This was a 2 litre turbo 4 cylinder front wheel drive car. It’s quite small but it had the most unbelievable handling. I was lucky enough to be able to take it over the Kopu-Hikuai hills and

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back on the way to and from the Coromandel. It was so much fun. I have to admit that I went over there by myself and on the way back I was able to pass a couple of cars and had an empty road in front of me. There was a pesky little VW Golf GTi chasing me, but he soon fell away because this car could out handle the GTi by a significant margin. It left me with a wide smile plastered across my face. It was a thrilling and fun-filled drive without any undue drama.

SUV I have driven the various Audis, SQ7 and SQ5, Bentley Bentayga, BMW X7, X5 and X3, Land Rover Discovery Sport and the Jaguar F Pace and also the Range Rovers.

Each one of them provided a different experience. The Bentley was uber luxurious, had oodles of power, lashings of wood and leather and was able to cosset you in every possible way.

The BMWs were exquisitely finished and did all the right things. The Jaguar F Pace was great until you had to go and fill it up halfway through your journey. It consumed petrol like nothing else that I have ever experienced – even the Rolls.

The Range Rovers were very nice. I thought the Velar was probably the best looking of all of the SUVs. The Evoque’s a bit small for me. The Vogue was put on this earth to consume petrol.

However, the one that I really liked the most was the Audi SQ7. It does everything you want, goes like stink and has masses of driver aids which ensures that this large SUV handles like a car.

We don’t need a car the size of an SQ7 and have found the SQ5 to be perfect for what we want, but if you are looking for a large SUV, in my view, you can’t go past that SQ7. It makes all the right noises and consumes oodles and oodles of luggage.

good fang in the hills.

There’s nothing else that quite beats it. The Audi RS4 is too small, the Jaguar XE was okay and most of the cars that Lexus produce likewise.

The Mercedes AMG E43 was luxurious but didn’t spin my wheels.

All in all, I really like the Audi RS6. If you can afford one, you’ll never regret it. It’s got more power than you’ll ever need, and it makes the most satisfying roar when you put your foot down. I have to say that it’s probably the quickest road going car that I’ve ever driven. I haven’t driven a Tesla yet but I’m sure that can probably beat what I’ve got. My retort to that is – so what. There’s no joy in going like the clappers and all you hear is a quiet whizz noise. Doesn’t stir my blood………….

Suffice to say none of these cars are cheap. I confess that I don’t really want to drive cheap cars. I would rather drive expensive cars because I enjoy driving nice cars. By the same token if anybody wants me to actually review any particular sort of car, then let me know and I’ll happily arrange for a test drive [that is not what you said when I asked you to review the Prius – I believe you said something about dead bodies. Possibly mine. – Sub-Ed]. I do have contacts within the motor industry so that I can obtain various vehicles from various dealers or headquarters around the country to test.

The various HQ’s in NZ know that At the Bar is a valuable marketing platform for them (so long as I like the car).

My favourite seat I can’t leave this article without mentioning seats. We all sit in them to drive, they haven’t discovered a way to get drivers to stand yet and a comfy seat is important, especially for a long

My favourite sedan/family car I have to admit to a bit of bias here. My favourite family car is the Audi RS6. I have always wanted one and I have now got one and I love it. It’s got a heap of space in the rear end. You can fill it up with garbage, drop that off at the dump, go and pick up your parents from the rest home and toss their walkers into the back and then once you have done the prodigal son bit, take off for a

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journey. Every one of this make had the most comfortable seats I have ever sat in.

I have to say, I have sat in a lot of cars. Apart from my old Citroen BX16, these cars are the only cars that have beaten that for comfort. In the old Citroen you could drive from Hamilton to Wellington and arrive feeling refreshed. They were exceptionally good seats.

The Lexus range of motorcars that I drove and reported on, back in 2017, had the most amazing seats. I was probably driving the top of the range versions with the all the bells and whistles, but these had leather seats which enclosed you in every possible way, heating up in the cold and blowing cool air in the heat and are something else. When I include all the seats I have sat on, I also include the Bentley and the Rolls Royce. Lexus have the best seats – end of story!

I do hope that this is the last time I have to dream up a virtual drive. I am ever optimistic that now we are out of lock down, we will never

return to it and I will be back taking one for the team, by testing some of the best vehicles around.

Stay safe and stay well. * David O’Neill is a Hamilton barrister, the NZBA treasurer and a driving fanatic. While we have been concerned about David's well being during lockdown, we are pleased to report he has recovered nicely from driving deprivation and is again mobile.

Free EAP Counselling MAS is concerned not only about the financial wellbeing of our Members but their physical, mental and emotional wellbeing as well.

That's why we offer each of our Members up to three free counselling sessions with independant counselling firm EAP Services. There is no application process for this service.

All our Members need to do is set up a session with EAP Services directly, and we are invoiced directly. We are not given any information about who has used the service.

Its 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

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2019 – 2020 COUNCIL CONTACT DETAILS KATE DAVENPORT QC – President Ph: +64 9 307 8787 kate@katedavenportqc.co.nz PAUL RADICH QC –President Elect Ph: +64 4 974 5951 Paul.radich@cliftonchambers.co.nz PHILLIP CORNEGE Ph +64 7 282 0572 Phillip@phillipcornege.com QUENTIN DUFF Ph +64 27 242 7734 q@mataichambers.com JONATHAN EATON QC – Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz

SIMON FOOTE QC Ph: +64 9 307 8784 swbf@simonfoote.co.nz FELIX GEIRINGER Ph: +64 4 909 7297 felix@geiringer.law SAM JEFFS – Co-opted Junior Rep Ph +64 9 973 0272 Sam.jeffs@bankside.co.nz JOSH McBRIDE – Co-opted Ph +64 9 309 8765 josh@richmondchambers.co.nz RICHARD MCGUIRE – Associate Member Representative Ph: +64 3 962 4241 richard.mcguire@pds.govt.nz TIHO MIJATOV – Junior Rep Ph: +64 4 472 9027 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL – Treasurer / Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com

JONO ROSS Ph: +64 3 929 6646 Jono.ross@montrosechambers.co.nz SETAREH STIENSTRA Ph: +64 9 309 7889 Setareh@publiclawchambers.com ANNE TOOHEY Ph: +64 3 260 3101 anne@annetoohey.com ESTHER WATT Ph: +64 4 260 5041 esther.watt@stoutstreet.co.nz MICHAEL WEBB – Co-opted Ph: +64 9 377 6543 mw@mrhwebb.com