At the Bar March 2016

At The Bar March 2016

Provocation Defence - Sorted? The Future of the Profession Cloud Computing Employment Standards Bill Barristers and Client Money

From the President By Paul Mabey QC INSIDE THIS ISSUE Pg 2 - From the President Pg 4 - Pressure on Manukau District Court Pg 4 - New Members Pg 6 - The Provocation Defence – Sorted? Pg 10 - The Future of the Profession Pg 15 - The Employment Standards Bill Pg 17 - Cloud Computing Pg 19 - Barristers and Client Money Pg 21 - Access to Justice

The Association continues to grow, having recently reached over 1000 members. We hosted our 2015 Christmas drinks functions in Auckland, Christchurch, Dunedin, Hamilton, Tauranga and Wellington. It was a great opportunity to catch up with colleagues and to meet new ones. Some of the functions were hosted by members of the Council including Jonathan Eaton QC at Bridgeside Chambers in Christchurch, David O’Neill in Victoria Chambers in Hamilton, Dean Tobin at Princes Chambers in Dunedin and I hosted the Tauranga event.

Pg 24 - Petrol Head’s Corner Pg 27 - Pack Your Bag! Pg 30 - What is Your Most Valuable Asset? Pg 32 - NZBA Council The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association.

EDITORIAL COMMITTEE David O’Neill (Chair) Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz CONTRIBUTIONS & ADVERTISING: Jacqui Thompson Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod - Hot Lobster Design Tel: +64 9 834 2224 NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz P O Box 631 Auckland 1140

Christmas in Auckland, Clive Elliott QC, Hon Justice Asher and Hon John Priestley CNZM QC

Christmas in Christchurch – Jonathan Eaton QC and Tim MacKenzie

National and Regional Young Lawyers Mooting Competitions The Association will again be working with the New Zealand Law Society to organise the Young Lawyers Mooting Competition, with regional rounds to be held in Auckland, Hamilton, Wellington and Christchurch. Our representatives include Council members Alexandra Sinclair, Stephanie Thompson, David O’Neill, Alice Osman and Dale Lester. Bench and Bar Dinner We will be hosting mid-year Bench and Bar Dinners. Details will be provided to members shortly. 2016 Annual Conference – 16 & 17 September We have confirmed the Millennium Hotel on the waterfront at Lake Taupo as our 2016 Annual Conference venue. Information on the programme and speakers will be available shortly. The Council is keen to support attendance of more junior members and the Association will be offering significantly discounted conference fees for junior members. World Bar Conference and International Advocacy Training Council – April 2016 As Association President I been invited to speak at the World Bar Conference in Edinburgh in mid-April and to participate in the International Advocacy Training Council 2nd Congress: Advanced Advocacy – Serving Justice With Excellence which is being hosted by the Bar of Northern Ireland immediately following the Conference.

Intervention Rule – Impact on taxation position for barristers and terms of engagement letter As a result of the 2015 intervention rule changes, the Council sought specialist assistance to determine if the changes impact upon the current cash basis for barristers’ taxation. The Council is grateful to tax specialist Geoff Clews for his assistance in discussions with the Inland Revenue Department. Members will be informed of any developments. The current model terms of engagement letter on our website is being reviewed in light of the intervention rule changes. When the updated letter is finalised we will advise members via email and the website.

Training Our Training Team has been busy. We recently hosted a Value Billing webinar and will be providing an update on the Criminal Procedure Act in May. Our Mastering Advocacy course committee, comprising Co-Directors Kate Davenport QC and Chris Gudsell QC along with Peter Davey and James Rapley, are running another sell out Cross-Examination Workshop on 8 April in Wellington. It is essential that high quality skills based training is available to our members and the profession generally and we thank the coaches, judges, Association Secretariat and the participants for their commitment. Access to Justice Working Group A working group chaired by President-Elect Clive Elliott QC has had its second meeting and is examining topics

such as simplified rules of court, new business models including unbundling of services, fixed fees and other fee arrangements, litigation funding, triaging of proceedings/ online courts, pro bono clearinghouse, mentoring and lay litigants. Professor Chris Gallavin who has recently joined the committee is preparing a report which should be finalised in time for the September Annual Conference.

Law Reform Committee Our Law Reform Committee is currently working on a consultation involving a Practice Note for filing electronic case books in the Court of Appeal and the Higher Courts Civil electronic document protocol. Sexual Violence Court Steering Committee A priority for the District Court Bench in 2016 is the establishment of specialist sexual violence courts. A multi-disciplinary Steering Committee has been set up and I have been invited to participate in this Committee on behalf of the Association. Equitable Briefing Policy The Association’s Equitable Briefing Policy was launched at the 2009 Annual Conference by the Attorney-General, Hon Chris Finlayson. Crown Law has endorsed the policy and briefs in accordance with it. The Council has resolved that a committee be set up to examine how we can give more prominence to this issue. Paul Mabey QC

NEW ZEALAND BAR ASSOCIATION ANNUAL CONFERENCE 2016 16-17 September, Millennium Hotel, Taupo The New Zealand Bar Association Annual Conference presents a wonderful opportunity for members to learn, network and share professional experiences and challenges. There are two social functions including a casual dinner at the lakefront Millennium Hotel and a formal dinner at the Taupo Yacht Club.

Mark your diary! More information will be available soon. 3

Pressure on Manukau District Court By Her Honour Judge Jan-Marie Doogue Chief Judge District Court Judge The recently refurbished and expanded Manukau District Court is looking smart these days, but inside its walls there is unrelenting pressure from ever growing volumes of court business. Already the busiest criminal court in the country, Manukau’s place at the heart of one of the country’s youngest, most culturally diverse and rapidly growing regions translates to a workload that is rising faster than in any other court. As the second busiest jury court, it deals with 1200 new criminal cases a month, and at any given time has about 3600 cases on hand. Alongside Auckland, Manukau’s Family Court is also the busiest in the country. There are about 2400 Family Court applications on hand at any given time, and 450 new applications are filed a month. Finding ways to deal with the volumes and pressure on Manukau is a priority for my office.

The most visible sign of this attention is a lift in the number of Judges based there. Approval for three more appointments along with the recent arrival of two new Judges will boost the headcount from 17 Judges to 22 in coming months. However, Judges, on their own, cannot bear the load. Vigilance and new thinking is also required around the demands placed on those who Judges rely on to produce high quality and timely work, not least the Registry staff and police prosecutors. An effective way to keep Manukau bright on the radar was through the establishment in February of a national committee to drive momentum for further improvement. The Manukau Steering Committee includes senior members of the Ministry of Justice, police and the judiciary and will meet at least once a month to review and address the multi-sector issues around the effective operation of the court. It will assess work priorities while encouraging fresh ideas and best practice to enhance the administration of justice at Manukau. I hope the knowledge acquired through this sort of cooperative effort will have positive spinoffs for the rest of the court system whenever volume pressure places extra demands on those working with in it, and the public who rely on its services.

New Members The NZBA welcomes the following new members: Julia Adams

AUCKLAND

Kimberly Lawrence

WELLINGTON

Wendy Andrews

AUCKLAND

Tiho Mijatov

WELLINGTON

Debra Angus

WELLINGTON

Tim Mackenzie

CHRISTCHURCH

Taryn Bayley

TAURANGA

Geoff McLay

WELLINGTON

Noel Cox

AUCKLAND

Timothy Rea

AUCKLAND

Donna-Maree Cross

AUCKLAND

Emma Riddell

Ann Fass Douglas Hall Michael Heron QC Pheroze Jagose Richard Keam Cassandra Kenworthy Stephen Laing

NELSON

CHRISTCHURCH

Gretta Schumacher

AUCKLAND

ROTORUA

Benjamin Snedden

AUCKLAND

Alec Steel

AUCKLAND

AUCKLAND WELLINGTON AUCKLAND WELLINGTON AUCKLAND

Shelley Stevenson Steve Taylor Judith Walshe Katerina Wendt

WELLINGTON MASTERTON CHRISTCHURCH AUCKLAND

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Provocation - Sorted? By Professor Chris Gallavin* In 2009 the defence of provocation was abolished in New Zealand. In that year the high profile cases of Weatherston and Ambach contributed to a growing unease over the legitimacy of provocation as a partial defence to murder. Problems with the underlying rationale were

compounded by the complexity when establishing the defence. The mental gymnastics needed to understand the level of self-control of an ordinary person with the characteristics of the defendant reached laughable dimensions. Something needed to be done – but I argue that the abolition of the defence altogether in favour of a sentencing discretion was not the correct answer. In this article I will outline what I see to be the underlying problems with the law relating to murder in New Zealand. I will do this primarily through an examination of just one area - victims of domestic violence who kill. At base I argue that the law of culpable homicide in New Zealand is in a lamentable state. From the absence of corporate liability (preference in the alternative being given to poorly enforced health and safety legislation), the wildly different circumstances but similarly termed crime of ‘murder’ under ss 167 and 168, the absence of an appropriate defence for ‘battered women’, the lack of a partial defence for excessive force in selfdefence and the absence of judicial willingness to develop a defence of diminished responsibility, mean that the law of culpable homicide in New Zealand is littered with failings. A ground up reconceptualization of the entire area is required as the insufficiencies in the law of murder are

incapable of recovery through piecemeal reform the likes of which are currently being considered by the Law Commission – reform that will likely culminate in the introduction of an omnibus bill to Parliament sometime in 2016. At base I suggest there are three board ways in which differing circumstances giving rise to homicide can be addressed by the law. The three areas are first, differentiated charging (i.e. at the prosecution stage) second, differentiated justifications or excuses (i.e. the defence stage) and third, differentiated sentencing (i.e. the punishment stage). I suspect that the preference we individually give to one or other of these stages reflects our knowledge of the respective areas, our preference for pragmatism over principle (or vice versa), and our social, political and perhaps even moral foundation.

Principle v Pragmatism I prefer a principled approach and while acutely aware of the pragmatic realities of administering a criminal justice system and the need to preserve discretion at the punishment stage I am not in favour of an unbalanced approach across these three limbs. Each have their role to play but when one or other is preferred then difficulties arise. I suggest that in the context of culpable homicide in New Zealand that such an imbalance has arisen in favour of a sentencing discretion to the detriment of the responsibility held at the prosecution and defence stages. In the context of the latest review by the Law Commission I fear that an examination of victims of domestic abuse may give rise to an equally unbalanced approach at the defence stage over the prosecution stage. In November 2015 the Law Commission released an Issues Paper with the title Victims of Family Violence Who Commit Homicide. In this paper the issue of battered defendants was addressed primarily through suggested changes to self-defence under s 48 of the Crimes Act 1961. Although often an ill fit, the provocation defence had provided some battered defendants with an appropriate avenue to pursue. With the abolition of

provocation, battered defendants who kill are left with only self-defence, this likewise an ill fit in such cases primarily due to the lack of immediacy between threat and the homicide. The abolition of provocation only managed to place more pressure upon the defence of self-defence. With no dedicated defence, no general defence of diminished responsibility and no concession for excessive force in selfdefence, battered defendants receive no specific treatment at the prosecution stage, and have a difficult time at reducing their culpability under the defence stage. They are therefore reliant upon the discretion of a judge under the punishment stage. The Law Commission’s attempt to address the gap in the law is not the first. There is a virtual scrap-heap of previous proposals in the area. In October of 2000 the Law Commission issued Preliminary Paper 41 under the title Battered Defendants, Victims of Domestic Violence Who Offend. A quick search of the table of contents sees a list of what would become reoccurring themes; Self-defence, Excessive self-defence, A New defence for battered defendants, Provocation, Diminished responsibility, Sentencing for murder, Duress, Compulsion and Necessity. That paper resulted in a final report issued in May 2001 (Some Criminal Defences with Particular Reference to Battered Defendants). The recommendations contained within that paper were not adopted. In 2007 the Law Commission again called for the abolition of provocation in Report 98, The Partial Defence of Provocation. Although it took two years, the recommended change in the law occurred in 2009 with the repeal of s 169 of the Crimes Act 1961. Superficially it appeared that Weatherston became the poster case for the abolition of provocation (where the defence was unsuccessful) rather than the Ambach case (where as a matter of principle the defence ought not to have been successful but was). With the rejection of partial defences to murder, the nuances apparent from one scenario of murder to the next are now dealt with as sentencing issues. Although rejected as ‘over played’ in the case against the abolition of provocation, the principle of fair labelling, I suggest, gains significant momentum when the problems of the law of culpable homicide are seen as imbalances across the prosecution, defence and punishment limbs, i.e. a broadly defined offence, a lack of appropriate defences and a wide sentencing discretion. From this perspective the problems with the law extend beyond battered defendants.

The notion of imminence A board brush approach to murder is taken in New Zealand with multiple scenarios provided for under ss 167 and 168 of the Crimes Act 1961. As a result, the general defence of self-defence may be invoked in the case of murder through a myriad of factual circumstances. Universal to all circumstances is the traditionally narrow reliance on the notion of immediacy under self-defence. In its 2015 Issues Paper the Law Commission raised a number of questions over the possibility of reforming the law of self-defence and in particular whether the notion of imminence ought to be legislatively amended. For victims of domestic violence, the change would likely remove the requirement of imminence altogether changing it to a test of inevitability. In the absence of a wider review of culpable homicide in New Zealand (i.e. if this is as good as it gets) then my answer to that question is a yes. However, in principle I have two main concerns with this approach. First, in effect such an amendment would result in fundamentally different approaches to the same provision – one as applied to victims of domestic violence and one for all other scenarios. This would, for some, be seen as legislatively justifying the adage that ‘attack is the best form of defence’. It would also provide a full defence in cases where some culpability might justifiably remain. Combine this with the possibility of a partial defence of excessive force in self-defence and one is faced with potential problems particularly as the landscape of application would then be very complex. The second principled objection I have to such a change is that it is difficult not to apply the same reasoning to other defendants especially where those defendants are vulnerable but fall outside the scenario of domestic violence such as the elderly or women in general when faced with aggression say in the case of an assault or robbery. If the key to this change is the defendant’s perception of inevitability and the change is needed to effectively educate fact finders when assessing such cases, then it ought to apply to any scenario where an honest belief of inevitability exists coupled with possible prejudice or ignorance in the mind of fact finders.

Wide ranging review of homicide But the Commission’s concentration on the defence stage is but one part of the scenario. It is the lack of proper examination of the prosecution stage that leads me to the conclusion that a wide ranging review of culpable homicide is needed in New Zealand. The availability of a particular offence, say for example through the adoption of a degrees of murder structure, could decrease our reliance upon specific defences.

With greater specificity at the prosecution stage there may also be a greater occurrence of guilty pleas, and a more focused application of sentencing discretion. This, I suggest would ameliorate the imbalances between these three stages by not overemphasising the role of one stage to the diminution of the others. In the case of battered defendants who kill, the ill fit of offence and defence has long been recognised in New Zealand. First, when provocation was available there often arose a difficult tactical decision that needed to be made between provocation and self-defence. Irrespective of the tactical decision the leaving of one or both defences to a jury would ultimately be a decision of the trial judge on the basis of whether an evidential onus had been established. As a consequence, in some cases a defendant could positively disavow themselves of self-defence, for example, only for it to be left to a jury on the basis of there being a plausible narrative regardless of the positive case put forward by the defence.

Conclusion: To conclude, the key proposal advanced by the Law Commission of an amended defence of selfdefence could work, but it is a clumsy fix to a problem that shines a wider light on the workings of the law of murder in this country. Any reform of the law of homicide in New Zealand should not be limited to those subject to domestic violence. As Sir Grant Hammond outlines in Issues Paper 39, ‘[f]amily violence is a dreadful blight on New Zealand Society’, I categorically accept that. However, in fear of individual problems giving rise to piecemeal reform of the law of murder in New Zealand I advocate for a much wider examination of the area. Some circumstances once covered by the defence of provocation may be pertinently included. Those acting under extreme provocation, for example the case of witnessing the killing of a loved one, or those who fall outside of the realm of necessity, or could rely on the application of diminished responsibility if in another jurisdiction all paint strong cases for either the specific categorisation of their offences, through a system of degrees for example, or the creation of specific defences.

This issue is highlighted through the Commission’s specific question as to whether an acquittal is appropriate in the case of battered defendants who use more force than is reasonable to the threat therefore failing in their application of self-defence. With the recognised problems of a defence of provocation still in existence – as a ‘concession to human frailty’ the defence covered those things we felt strong sympathy (killing on seeing a loved one killed) through to those we felt abhorrence for (the non-violent homosexual advance cases) – then an alternative approach to a plethora of defences is the creation of more nuanced offences. Whichever path adopted, the key issue is that these different holistic approaches can only be considered upon the back of a general review rather than the myopic review that currently hamstrings the Law Commission. * Professor Chris Gallavin is a well-known legal commentator. Past Dean of the University of Canterbury Law School and now Deputy Pro Vice Chancellor of the College of Humanities and Social Sciences at Massey University, Chris has published extensively in the area of criminal law and evidence and regularly engages in opinion work in the areas of culpable homicide and evidence. For more information about Chris, see http://tinyurl.com/chris-gallavin

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‘The Times They Are A-Changin’1 – Portents of Change in the Legal Landscape? By Rod Joyce QSO QC* This piece sets out to pull into one place some signs that, so I suggest, we ignore at our peril. I speak of a significant, consumer supported, drive for fundamental change in relation to the practice of law. Amongst the most prolific writers about the law and change is Richard Susskind2. In the introduction to one of his more recent books3 he identifies Clay Shirky4 as saying that: ‘Institutions will try to preserve the problem to which they are the solution’5 Referring then to the demise of Kodak, Susskind says that: “… customers often switch quickly to services based on … new technology, whereas providers, unless they are early adopters, are often too late to recognise their potential and never manage to regain ground.” A recent New Zealand illustration might well be the reported erosion of the customer base of media that offer news and entertainment per medium of conventional live television services and associated set boxes: customers are said to be flocking in significant numbers to the comparative freedom of trans-national access to on-demand programming streams. Traditional providers seem to have been caught short by the proliferation of Internet-based services and the lengths that customers will go to be able to watch programming cheaply sourced from around the world whenever they choose. Are the legal system, and its profession, in line for similar disruption? There is now a veritable host of means by which those requiring legal assistance can help themselves at little, or even no cost, by adroit use of the Internet. Legal self-help sites are popping up almost every day. Type ‘legal assistance sites’ into Google™ and you register upwards of 8,000,000 links. Try a slightly more precise ‘legal information and assistance’ search and you get 657,000,000. Many of those will relate to oblique or repeat entries, or

doubtful sources, but it takes little by way of keywords effort to mine down to much that looks potentially impressive. Section 6 of the Lawyers and Conveyancers Act 2006 says that:

Reserved areas of work means the work carried out by a person— a) in giving legal advice to any other person in relation to the direction or management of— i. any proceedings that the other person is considering bringing, or has decided to bring, before any New Zealand court or New Zealand tribunal; or ii. any proceedings before any New Zealand court or New Zealand tribunal to which the other person is a party or is likely to become a party; or b)  in appearing as an advocate for any other person before any New Zealand court or New Zealand tribunal; or c) in representing any other person involved in any proceedings before any New Zealand court or New Zealand tribunal; … There is no attempt to define “legal advice” but the act later provides6 that:

Reserved areas of work for lawyers and incorporated law firms 1. A person commits an offence— a) who, for gain or reward (whether direct or indirect) and not being a lawyer or an incorporated law firm, carries out work of a kind described in paragraph (a) of the definition of reserved areas of work (as set out in section 6); or b) who, not being a lawyer, carries out work of a kind described in paragraph (b) or paragraph (c) or paragraph (d) of the definition of reserved areas of work (as set out in section 6). … 2. This section is subject to the exceptions set out in sections 25(2) and 27. In its 2001 publication ‘Gateways to The Law’7 the Law and Justice Foundation of New South Wales notes that there are varying ‘official’ definitions of ‘legal advice’. It also observes that ‘Non-profit legal and non-legal agencies are an essential

Copyright © 1963, 1964 by Warner Bros. Inc.; renewed 1991, 1992 by Special Rider Music Professor Richard Susskind OBE is President of the Society for Computers and Law, IT Adviser to the Lord Chief Justice of England, and Chair of the Advisory Board of the Oxford Internet Institute, University of Oxford. His books include The End of Lawyers? (OUP, 2008) and Tomorrow’s Lawyers (OUP, 2013). 3 Tomorrow’s Lawyers: An Introduction To Your Future; Oxford University Press; ISBN 978-0-19-966806-9 4 An American writer about the socio-economic effects of technology 5 These words have come to be called ‘The Shirky principle’. 6 Section 24 7 http://www.lawfoundation.net.au/ljf/site/articleIDs/99C0069A70803D74CA25712A0077806C/$file/gateways.pdf accessed 1 February 2016 1 2

source of free assistance to individuals with legal problems, particularly for disadvantaged members of the community’. One thing is perhaps clear, namely given the ever increasing cost of ‘going to law’ we can expect an increasing tension about what work of a legal nature is rightly or necessarily the exclusive province of lawyers and what should not be so contained. Lawyers often warn of the pitfalls of self-help, this when speaking of a perfectly understandable desire that all differences and disputes should be resolved on a best law and evidence basis. But I suggest that this must now be regarded as a Utopian aspiration. As (in now edited terms) Berry Zondag8 and I wrote some years ago for a presentation at an NZBA conference: ‘The current litigation paradigm is based on many assumptions that are founded on the ideal of achieving perfect justice. The popular stylised portrayal of the operation of the justice goes something like this: conflicting parties take their dispute for determination to a well-resourced, efficient and capable court system, which resolves contentious issues of fact and law and applies selected relevant legal principles to facts as found having been presented to an exacting evidential standard. … The end result of the exercise is what we define by the somewhat nebulous term ‘justice’. “In order for things to operate smoothly in this ideal model, the adjudicative activity requires the input of perfectly presented and relevant facts. As we maintain an adversarial system, these will be presented in a way that optimally supports the parties’ contentious positions. The same applies to the legal principles.

system, and have sufficient confidence in it. … (And it) does not come cheap. “The attitude of parties to the litigation process is often deeply at variance with the prototype envisaged in the ideal justice model. Litigants can be illogical or vengeful and may operate from a lack of perspective that borders on downright obsessive behaviour. Respect for the court and its authority is in decline, and as the Law Commission observed in its 2004 report, confidence in the justice system is not high.’ We can reasonably expect increasing pressure to limit lawyers’ areas of exclusivity; a pressure to which Parliament may well increasingly respond. The United States website LegalZoom9 demonstrates what could very soon come to be in Australia and New Zealand. Its inroads into legal services in the United States have attracted bar association generated litigation in several states seeking to restrict it as trespassing on supposedly exclusive domains of those to qualified and licensed to practise law. Back on 1 August 2014, an online ABA Journal post10 said that: “In recent years, LegalZoom has faced lawsuits in eight states seeking to shut it down for violating state laws barring the unauthorized practice of law. But with a notable recent victory in South Carolina, and having fended off all but one of the other lawsuits, LegalZoom is anything but shutting down. To the contrary, LegalZoom, which began offering legal forms online in 2001, is poised to significantly broaden the range of services it offers consumers and small businesses.”

“The engine room of all this activity is a procedural system existing to assist the parties to determine develop and present their case in factual and legal terms. …

And it still seems to be shucking off efforts to contain and restrain its efforts11. According to the ABA, Deborah L. Rhode12, director of the Center on the Legal Profession at Stanford Law School, have said that:

“The system can only function perfectly when parties comply with the procedural directions and objectives. This requires that they are sufficiently awed by the authority of the justice

“It is time for the legal profession to drop efforts to shut down such companies for UPL13 and instead focus on how best to regulate them to protect their customers. … The train has left the station”.

Former Managing Director, Alpha Computer, Dienstein, The Netherlands. Graduate of the University of Auckland Law School. Principal Solicitor at Mornington Island Community Legal Centre, Queensland. 9 http://www.legalzoom.com/sem/index-b.html?kid=7409f733-fd50-4a3b-91ce-dcdd49b88b13&cvokid=7409f733-fd50-4a3b-91cedcdd49b88b13&keyword=law%20zoom&matchtype=exact&cvosrc=ppc.google.law%20zoom&gclid=CIqy2YmGy8gCFUuXvQodgB8Jbg accessed 1 February 2016 10 http://www.abajournal.com/magazine/article/latest_legal_victory_has_legalzoom_poised_for_growth accessed 1 February 2016 11 http://www.abajournal.com/magazine/article/latest_legn already cited al_victory_has_legalzoom_poised_for_growth accessed1 February 2016 12 Ernest W. McFarland Professor of Law and Director of the Center on the Legal Profession, Stanford University. 13 Unauthorised practice of the law. 8

In a Fordham Law Review paper, ‘Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement’14, Rhode and Lucy Buford Ricca15 wrote that: “‘According to a registration statement filed in anticipation of going public, LegalZoom has served more than 2 million customers since its founding in 2002, and nine of ten of its surveyed customers reported that they would recommend LegalZoom to their friends and family. Our review of reported cases also finds little evidence of actual injury; fewer than a quarter of surveyed cases mentioned evidence of … public harm.’ After reviewing their own and other empirical studies, the authors concluded that: ‘It is specialization, not professional status, which appears to be the best predictor of quality.’ They then add that: ‘Extensive formal training is less critical than daily experience for effective advocacy.’ In my last two and a half years as a District Court Judge I sat exclusively in the Accident Compensation Appeals jurisdiction. The legislation that provides for New Zealand’s Accident Compensation regime is complex and offers many navigational hazards. As the Chief Justice has said:16 “[7] The Injury Prevention, Rehabilitation, and Compensation Act 2001 provides cover on the basis of line-drawing which reflects policy choices. Such line-drawing has resulted in legislation which is technical. … this legislation (is not) easy to follow. It contains much cross-referencing, repetition, and circularity in expression.” The Accident Compensation Act permits parties to be represented by lay advocates. The difficulties articulated by the Chief Justice notwithstanding, my experience was that with the outstanding exceptions provided by lawyers specialising in this area, the standard of representation offered by specialist lay advocates could on occasion be as good as, and in some cases better than, that of some qualified and enrolled barristers and solicitors.

Remembering that at present there is no advocacy training for ACC advocates, indeed anyone can ‘have a go’, that experience is not consistent with Rhode and Ricca’s conclusion that “it is specialisation, not professional status, which appears to be the best predictor of quality.” The Susskinds (father and son Daniel17) say in their most recent book18 that: “When confronted with the criticisms and challenges … a common response … is to address each alleged shortcoming in turn and to suggest small modifications. The mindset here is to repair the traditional way of working.” A question posed in that context by the Susskinds is: “ … to what extent do we actually trust professionals to admit that their services could be delivered differently, or that some of their work could responsibly be passed along to non-professionals? If we leave it to professionals themselves to reinvent their work place, are we asking the rabbits to guard the lettuce?” They cite Jethro Lieberman in The Tyranny of the Experts19 at 275: “The time for heresy is overdue: The expert is the wrong person to define his job or to evaluate how well it is performed.” The Susskinds speak of ‘status quo bias’; of professionals recognising a need for change in all but their own profession and of cries of ‘you don’t understand’ when the target is theirs. And I would respectfully concur with the observation of a now retired senior member of the English appellate judiciary that: “I never believed that lawyers and judges had a monopoly of wisdom about anything very much, and I am still more firmly convinced of that now”. Instead of risking the complaint that by not seeking out innovative ways to improve the current modes of litigation we are simply guarding our lettuce patch, might we not take a real lead in court reform?

14 Deborah L. Rhode and Lucy Buford Ricca, Protecting the Profession or the Public? Rethinking Unauthorized-Practice Enforcement, 82 Fordham L. Rev. 2587 (2014). Available as at 18 October 2015 at: http://ir.lawnet.fordham.edu/flr/vol82/iss6/2 15 Executive Director, Center on the Legal Profession, Stanford University. 16 Allenby v Accident Compensation Corporation [2012] NZSC 33 17 Daniel Susskind is a Lecturer in Economics at Balliol College, Oxford. 18 The Future of the Professions: How Technology will Transform the Work of Human Experts: Oxford University Press 22 October 2015, ISBN: 9780198713395 19 http://www.jethrolieberman.com/the_tyranny_of_the_experts__how_professionals_and_specialists_are_closing_the_op_120320.htm accessed 1 February 2016

Worthy, surely, of urgent consideration in New Zealand is the current movement in England and Wales towards the establishment of an on-line court for claims up to GB£25,000 (about NZ$55,500). At a glance, the promotion seems to be one in the direction of a Disputes Tribunals system on steroids.20 The Online Court proposal is found in the Civil Courts Structure Review: Interim Report21 recently issued by Sir Michael Briggs22. His shorthand description of the proposal is that: “… By way of summary, stage 1 will consist of a mainly automated process by which litigants are assisted in identifying their case (or defence) online in terms sufficiently well ordered to be suitable to be understood by their opponents and resolved by the court, and required to upload (i.e. place online) the documents and other evidence which the court will need for the purpose of resolution. Stage 2 will involve a mix of conciliation and case management, mainly by a Case Officer, conducted partly online, partly by telephone, but probably not face-to-face. Stage 3 will consist of determination by judges, in practice DJs or DDJs, either on the documents, on the telephone, by video or at face-to-face hearings, but with no default assumption that there must be a traditional trial. In Chapter 6 of his report, Sir Michael says that: “The Rules would need to be constructed from scratch and self-standing: it would be best if there were a committee and drafting team quite separate from the Civil Procedure Rules Committee (CPRC). Experience elsewhere has shown that the people who are best equipped to draft rules for Litigants in Person (LIPs) are found among employed and voluntary members of LIP-facing advice and assistance agencies. In practice there will need to be close co-operation between lawyers, software experts and drafters, supervised by a committee with a predominantly lay membership. … A separate court with its own rules would be better insulated from the encrustation of legal authorities that is besetting the CPR.”

Conclusion: Quite deliberately I avoid any endeavour to pull this collection together into any kind of settled conclusion. It is far too soon to do that. My hope simply is that readers will, rather than perhaps rushing to the ramparts, be encouraged to take an active interest in working to ensure that we lawyers waste no time in becoming constructive pathway-makers for solutions before some such overwhelm, or are imposed upon, us from outside. A starting point could be the Online Court proposal and the possibilities that a like endeavour might offer for us, although an un-nerving factor lies with the sorry history of statefunded and botched IT projects in New Zealand. For example, a lawyer practising in crime might rhetorically ask, ‘Whatever became of the paperless list court?’ The current day reality is that claims up to NZ $50-60,000 and indeed beyond are mostly uneconomical to pursue with lawyer support and that will not change unless the legal profession, or a significant element of it, is prepared to take the knife to current business models and thus ease the way open to lower fees. If that is not going to happen then might this be the time to show some courage in the ability of our profession to prosper, and in doing so better serve its clients, with a quite radically changed advocacy model? In particular, a model that allows lower level civil cases to be taken and argued by advocates who, although not admitted lawyers, have undergone suitable to the particular role training, have met appropriate statutory requirements, and are exposed to disciplinary and other forms of statute-backed supervision. Proportionate devolution of professional responsibilities is a growing feature of medicine. Why not law? I hope that my modest efforts to draw attention to what appears incrementally to be happening ‘out there’ in the world of consumers of legal services will attract constructive debate between and amongst practitioners. * Rod Joyce QSO QC is a retired District Court Judge.

For thoughtful, early and undoubtedly well-informed comment on the Online Court proposal a good place to start is with the blog site of Sir Henry Brooke. 20 Lord Justice Briggs: Civil Courts Structure Review (interim report) summarised at https://www.judiciary.gov.uk/civil-courts-structure-review/civil-courts-structurereview-ccsr-interim-report-published/press-summary-of-the-ccsr-interim-report-from-lord-justice-briggs/ and discussed at: http://www.lawgazette.co.uk/law/ briggs-review-online-court-needed-to-cut-out-lawyers/5052973.article (Both accessed on 1 February 2016). 21 https://www.judiciary.gov.uk/wp-content/uploads/2016/01/CCSR-interim-report-dec-15-final-31.pdf accessed 1 February 2016 22 Sir Michael Briggs was a High Court Chancery Judge from 2006-2013, and the judge in charge of the Chancery Modernisation Review in 2013. He was appointed as a Lord Justice of Appeal in April 2013. 23 http://sirhenrybrooke.me/2016/01/24/an-online-civil-court-3-six-questions-to-answer/ accessed 10 February 2016

The Employment Standards Bill By Susan Hornsby-Geluk* The Employment Standards Bill has undergone a number of last minute changes as it moves through the final stages of the legislative process, ahead of its expected implementation date of 1 April 2016. It has been split into five separate bills, amending key employment statutes – the Parental Leave and Employment Protection Act 1987, the Employment Relations Act 2000, the Holidays Act 2003, the Minimum Wage Act 1983, and the Wages Protection Act 1983. There are three key policy areas covered by the Bill: • Prohibiting practices that “lack sufficient mutuality” (targeting zero hour contracts); • Extension and increased flexibility of the parental leave regime; •

Expanded penalty and enforcement regime relating to minimum entitlements under the Holidays Act 2003, Minimum Wage Act 1987, and Wages Protection Act 1983.

Prohibiting practices that “lack sufficient mutuality” The most controversial of the amendments relates to zero hour contracts. The Bill creates an “availability provision” whereby an employee is required to be available to accept work, but the employer has no obligation to offer it. Under the Bill such a provision may only be contained in an employment agreement if: • The employer has genuine reasons based on reasonable grounds for the specific provision; • It provides for the payment of reasonable compensation for the employee’s availability; • The employment agreement includes specific agreed hours of work, which include guaranteed hours or work. An employee is entitled to refuse to perform any work additional to their guaranteed hours if their employment agreement does not contain a valid availability provision, and cannot be treated detrimentally as a result of that refusal.

Assuming the latest Supplementary Order Paper is implemented, this represents a significant change from the original Bill released by the Select Committee. Initially there was no requirement that the employment agreement include any guaranteed hours of work. However, it appears negotiations across the House have resulted in a compromise that now prevents employers using zero hour contracts which require an employee to be available with no guaranteed hours of work. In terms of tackling other practices which “lack sufficient mutuality” the Bill: •

Provides for shift workers to have provisions in their employment agreement which specify reasonable notice for the cancellation of shifts, and the compensation payable if that notice is not provided.

•

Prevents employment agreements from prohibiting employees from undertaking secondary employment, unless the employer has genuine reasons based on reasonable grounds and these are set out in the employment agreement. Those genuine reasons include protecting commercially sensitive information, intellectual property, or preventing a conflict of interest. Any restrictions must be the minimum required to protect those interests.

•

Prohibits unreasonable pay deductions, even if the employee has consented. Ironically, the Bill also allows for general deduction clauses in employment agreements to be sufficient “consent”, but requires consultation. Given that case law currently suggests that a generic clause in an employment agreement will not constitute sufficient consent for a lawful deduction, and the Wages Protection Act 1983 currently allows for consent to be withdrawn at any time, this amendment may well have the effect of reducing, rather than enhancing, employees’ rights.

For employers, employment agreements will need to be reviewed to ensure compliance with the new requirements from 1 April 2016. In particular, the hours of work, secondary employment and conflict of interest provisions will need careful review. For lawyers, it is expected that the changes may give rise to increased litigation as the terminology used in the Bill, including terms such as “reasonable compensation” and “genuine reasons based on reasonable grounds”, is very broad and will require interpretation.

Extension and increased flexibility of the parental leave regime The amendments to the Parental Leave and Employment Protection Act 1987 are aimed at recognizing the diversity of modern family arrangements. Paid parental leave is extended to cover a wider range of eligible workers (including casual and seasonal workers). The amount of (unpaid) leave is also extended to 26 weeks for those employees who have been employed for between 6 and 12 months, and a new process is put in place for those not entitled to statutory leave to request “negotiated carer leave”. A new concept of keeping-in-touch hours has been created. This allows employees on parental leave to return to work for up to 40 hours during the course of their parental leave to enable them to attend training or assist with ongoing work, without being regarded as having returned to work (and therefore losing their entitlement to paid parental leave). The “primary carer” concept has been introduced to cover those with primary responsibility for the day-to-day care of a child. For employers, parental leave clauses in employment agreement and policies will need to be reviewed to ensure compliance with new statutory entitlements and terminology from 1 April 2016.

Enhancing penalty and enforcement regime relating to minimum entitlements The consequences for an employer of breaching their obligations will be extended under the Bill, with an ability for some of those consequences to also be visited upon an individual involved in the business. This includes: • Pecuniary penalty orders increasing five-fold to $50,000 for an individual and $100,000, or three times the financial gain, for a company. •

Banning orders preventing a person from entering into employment agreements, being an officer of an employer, or being involved in the hiring or the employment of employees for a specified period of time (up to 10 years).

•

Compensation orders requiring a person other than the actual employer to pay compensation to the person who is the subject of the breach, if the employer cannot pay. This provision is intended to strike at shareholders, directors or senior officers of companies which are involved in breaches of minimum employment entitlements but are wound up or otherwise don’t pay what they owe employees.

• On the spot $1,000 infringement notices for breaches of record keeping requirements.

From a day-to-day perspective, the obligations on employers with respect to record keeping is also increasing. Employers must keep records in sufficient detail to demonstrate compliance with minimum statutory requirements, particularly in relation to the number of hours worked each day during a pay period, and the amount paid for those hours. Employers will need to ensure that they or their payroll provider are keeping the necessary records, and are able to access them easily on demand.

Conclusion The changes proposed in the Bill are not just technical changes or tidy ups. In particular, the latest amendments relating to zero hour contracts will result in genuine change to the law, and prevent employees from being required to be available for work, without any guaranteed hours being offered to them. The effectiveness of the unreasonable deductions provisions, which were originally mooted as a result of petrol station attendants being charged for “drive-offs”, remains questionable, given that they could actually reduce, not enhance employee rights. The amendments to the parental leave regime should enable a greater variety of carers to access parental leave entitlements. As for the expanded enforcement and penalty regime, this will certainly give some teeth to the enforcement regime. Overall, the balance of the changes would appear to favour employees over employers. * Susan Hornsby-Geluk is recognised in the NZ marketplace as one of the go-to lawyers for complex, strategic and high profile matters. Susan has over 20 years’ experience as an employment lawyer and leads specialist Employment Law firm Dundas Street. She has recently been appointed General Editor of the Employment Law Bulletin, reflecting the depth of her legal knowledge and expertise. For more information about Susan see http://dundasstreet.co.nz/Our-Team/SusanHornsby-Geluk.

Cloud Computing By Josh McBride* We are consistently told to be “wary” of cloud storage and its inherent security weaknesses. And yet who among us really understand what that means? What does “safe” mean? I wrote an article on this a few years back, deploring the lack of guidance on these issues despite the ever-increasing paranoia about hacking and “big data”. Frustratingly, it is still very difficult to get any practical advice on this topic. I think we all understand the “cloud” and how good it is for storing documents online, being able to access them from multiple devices in and out of the office, and sharing and collaborating with clients and colleagues. Dropbox, Google Drive, Microsoft 365, etc, are all examples. Many of us have worked with wellorganised clients and solicitors who have are able to upload all the relevant material using these platforms. It’s easy, efficient, and cheap. We are also increasingly conscious of the relentless “hacking” scandals in the news, both at home and abroad. How long will it be until someone in our profession, which is slowly but surely storing more and more data in the cloud, is exposed in the same way, with all the unhappy professional consequences that would follow? The NZLS has a very comprehensive 2014 “practice briefing” on the topic (Google it, or go to http://tinyurl.com/ gmjhkhu to be directed to it) which notes that confidentiality is a serious issue for lawyers, and then descends into – frankly – far too much jargon, informing us about the distinction between “PaaS” and “Iaas”, and giving examples about “deployment models”. This level of detail is no doubt useful for firms with a dedicated IT department, but for us barristers sitting here in the trenches wondering where the “off” button is now located on our new iPhone, it’s more than a little overwhelming.

The Law Society also tells us that “a staff member should not be permitted to use their personal Gmail or Hotmail email accounts to store confidential information so they can work remotely”. Really? Many barristers and solicitors use Gmail accounts to access files remotely. Google Drive depends on having a Gmail account. Many junior solicitors may use their own smartphone, but without access to their business email account. I am commonly asked by junior solicitors to send them material to a “Gmail” address so they can review material from home (a practice we should all encourage). Why is this seen as so risky? Is “Gmail” inherently more vulnerable than a firm’s own email systems? Of course it is not. The risk is that these technical briefings from the Law Society just get put in the “too hard” basket, and we continue to muddle along with cloud based solutions that we don’t understand and – most importantly – don’t know the risks of. I suspect that this “muddling” approach to cloud storage is endemic. And it is fraught with risk. Here is my attempt to give some practical guidance. First, we need to understand the risks. Yes, there are risks around not being able to access data if the provider’s servers crash, or if you don’t have a good internet connection, but cloud computing presents a special ethical and professional risk for barristers. It potentially compromises client confidentiality, and thus privilege. Cloud storage security can be compromised in a number of ways: a)

Your account is hacked, by someone working out your password and accessing your files.

Your account is legally accessed by a law enforcement agency and information is searched and copied. Yes, this happens. All the time. See Dropbox’s “transparency reports” (again, Google it) for the number of search warrants and subpoenas it received and acted on last year.

You mistakenly share files with someone, by sending them the wrong link or inviting them to access the wrong folder.

To address these risks, we need do what every other business does – have a risk management plan assessing the impact of inadvertent disclosure, and asking how we can avoid, mitigate, accept, or transfer that risk. This is what I suggest: 1. First, avoidance. Use some common sense. Computing security, at least for small businesses like ours, is just like home security. If someone really wants to break in, they will find a way. If the data is extremely sensitive and inadvertent disclosure would have catastrophic consequences, do not store the information in the cloud. It’s that simple. You will need to speak to a qualified IT expert who can provide you with the appropriate security protocols for storage of electronic data. 2.

Next mitigation. This might require some upskilling I’m afraid! Make sure you know how to share folders and files, to reduce the risk that you will inadvertently disclose the wrong information to a third party. And make it as hard as possible for third parties to gain unauthorised access to your cloud storage. Use random alphanumeric passwords (eg “adGFy6Fwl”) and “two stage verification” (which will send a code by text message to your mobile phone which you need to enter before you can access your account on an unknown computer). Change these passwords routinely. Apple offers “KeyChain” which will generate random passwords, store them securely, and enter them automatically. Otherwise there are plenty of Apps available to generate and store random alphanumeric passwords. Use them. They are excellent.

Third, accept and transfer responsibility for the risks. If you are comfortable that inadvertent disclosure would not have catastrophic consequences, and you are using strong, secure passwords, you must nevertheless accept that there are still risks associated with cloud storage, which your solicitors and their clients need to understand and accept. Ensure that your instructing solicitors are

informed, in a letter of engagement, that you are using a cloud storage solution, and tell them which one you are using (eg Google Drive). Explain that there are risks associated with this storage and that, if they or their client have any concerns about the cloud platform you are using, they should advise you immediately. Otherwise, you will be storing their client’s personal and private information in the cloud, which they can access at any time if they wish.

A final comment. Cloud storage is a fantastic development for the bar. It is efficient, mobile, and very cheap. We should all be using it. You do not need to know what “PaaS” means to know how to use it securely and safely. Just acknowledge that there are some risks, make sure you tell your clients and solicitors that you are using it and what those risks are, and use strong passwords. Simple. * Josh McBride is a barrister at Richmond Chambers who practises in the civil and regulatory law areas. Josh is a keen user of technology to ensure efficiency in his practice of the law. For more information about Josh see http:// richmondchambers.co.nz/profile/josh.php

Barristers and Client Money By Mark Anderson* There is no provision for barristers to handle client money or to operate trust accounts at the present time. Rule 14.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008(Client Care Rules) stipulates that a barrister sole must not, inter alia, receive or hold money or other valuable property for or on behalf of another person. However, this does not mean that a barrister can ignore money issues. There is still plenty of scope for the unaware barrister to run foul of practice regulations. Moreover, changes to the intervention rule require a heightened awareness of a barrister’s obligations in this area.

the client with all of the information about the principal aspects of client service and care (including the basis on which fees will be charged and when payment of fees is to be made) required pursuant to rr 3.4A and 3.5A of the Client Care Rules.

Barristers with an instructing solicitor Where a person pays money in respect of a barrister’s fees before the work has been commenced or a bill of costs has been issued in respect of those services, the money so paid is trust money and must be held in the instructing solicitor’s trust account established and regulated under the Lawyers and Conveyancers Act 2006 (the Act).

The NZLS has adopted a prescribed form of escrow agreement (available on its website, regulatory requirements section) for use by barristers and escrow agents. An escrow agreement in the prescribed form must be signed and dated in relation to each escrow account. Each escrow agreement becomes effective on receipt by the escrow agent of the Barrister’s Acknowledgement and the Client’s Acknowledgement.

Advance fees should be held in the instructing solicitor’s trust account and the details recorded in a ledger account specifically for the client and in the client’s name. Section 110(1) (b) of the Act stipulates that the money must be held exclusively for the client and must be either paid to that person or as they direct.

A copy of the barrister’s bill of costs addressed to the client and copied to the escrow agent is necessary in respect of each payment made to the barrister. An authority from the barrister’s client to make payments to the barrister is not necessary because this is authorised in the escrow agreement.

Therefore, in order for the barrister to get paid, he or she must issue a bill of costs in accordance with reg 9 of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008. This means that the bill must be delivered or posted to the client before or immediately after the fees are paid from the trust account. Sending the bill to the instructing solicitor only will generally not be sufficient compliance with the regulation.

Under the escrow agreement the barrister agrees to indemnify and keep indemnified the escrow agent against all costs, claims, demands, liabilities, reasonable expenses and all other losses which the escrow agent may incur as a result of a breach of the agreement by the barrister, the barrister’s negligence or the barrister’s failure to comply with all applicable laws and regulations.

A difficulty regarding payment of the bill can arise if the client directs that the bill or part of it not be paid. This is because the money is held subject to the client’s direction. Situations such as this can be managed by keeping the client fully informed so that there are no unwelcome surprises when the bill is issued. This is also why it is essential, before commencing work, to provide

Complaints The numbers of complaints against barristers is generally low although this may change for those barristers who choose to accept direct instructions as there is no longer the protective layer of an instructing solicitor. Barristers who choose to accept direct instructions would be wise to review the adequacy of their professional indemnity

Barristers with no instructing solicitor Since the relaxation of the intervention rule, from 1 July 2015 barristers can apply to the New Zealand Law Society (NZLS) and may be approved to take instructions directly from clients in the circumstances stipulated in rr 14.1 and 14.2 of the Client Care Rules, thereby obviating the need for an instructing solicitor. Rule 14.10 of the Client Care Rules provides for a law firm or a Fund Holder to hold in an escrow account fees paid in advance for work to be carried out by a barrister for a client with no instructing solicitor. The money must be held and dealt with in accordance with terms prescribed by the NZLS.

insurance arrangements and to take independent professional advice in this regard. Complaints about barristers involving money are not common although there have been several reported cases which dealt with issues including gross overcharging, the reasonableness of fees and provision of fee information to clients. Some other cases involving barristers and money have been in the legal aid context and where a failure to account for fees and false billing formed part of those cases. Under the Client Care Rules all lawyers must have in place procedures for handling complaints by clients which ensure that each complaint is dealt with promptly and fairly. This can include a procedure whereby complaints are referred to an independent lawyer for consideration.

Some do(s) and don’t(s) The following is a list, by no means exhaustive, of hopefully some helpful reminders for keeping on the right track: 1. Do have a robust (detailed and accurate) time recording system to help you properly construct your bills of cost. 2. Don’t always rely solely on hours x rate to calculate your bill. 3. Do always take account of the reasonable fee factors set out in r 9.1 of the Client Care Rules. 4. Do always take a step back and consider your bill “in the round”. Is it no more than is fair and reasonable (GST inclusive) for the services provided?

5. Do have procedures in place to handle complaints from clients and that avoid opportunities for complaint in the first place. 6.

Do always keep your client fully in the picture. Unwelcome surprises can turn a previously good lawyer/client relationship bad very quickly and result in complaints to the NZLS.

7. Don’t include non-chargeable time in your bill and then call it a discount. Non-chargeable time is exactly that and to pretend otherwise is misleading. 8. Don’t charge your client at your higher rate for appearances on your behalf by a junior. 9. Do be fully conversant with the Client Care Rules. 10. Do regularly review the adequacy of your professional indemnity arrangements and take independent professional advice in this regard. 11. Do have colleagues who you can talk to about difficult files, etc. If there is no one obvious contact someone on the Friends Panels operated by NZLS or ADLS Inc. 12. Do immediately get professional help and co operate fully with the NZLS if you receive a complaint. * Mark Anderson BCom, CA is an Independent Consultant specialising in lawyers’ trust account management. A former NZLS Inspector for 21 years, author, presenter and assessor for Stepping Up Practice On Own Account and Trust Account Supervisor, Mark also offers private tutoring for candidates studying for those courses. For more information, contact mbaconsultant@icloud.com

Access to Justice – the Conceptual Framework An interview with Professor Chris Gallavin LLB (Hons) (Cant) PhD (Hull)* Professor Gallavin is the Deputy Pro Vice-Chancellor for Massey University and the former Dean of Law at the University of Canterbury. In a recent interview, At the Bar asked Professor Gallavin to set the Access to Justice discussion in a conceptual framework and to give us his thoughts on the issues involved. In 1795 Jeremy Bentham talked of justice as being the security for everything in life that we value, or that we ought to value - from property to liberty, to honour and life. This very much sprang from a constitutional right to access to justice. The Bentham concept of access to justice was a protection; a completely affordable and efficient right of access to justice was something that kept the wheels on society. There is a lot to be said for the argument that this view has since moved to a position of personal responsibility or a number crunching process. If you break this down, and merely see justice as an exercise of how many court cases we can get through and how we can make it a user pays system, then there is a corresponding diminution of the constitutional aspect. The whole system is poorer for seeing it as a customer driven exercise. Justice (and access to it) is a constitutional right that is fundamental to the social contract that we enter into. Saying that we have a system of rights and duties and obligations means nothing if we can’t actually resolve our disputes quickly and efficiently. Of course, this doesn’t necessarily mean that one model fits all. Savings in the justice sector are often seen as a good thing - because justice is expensive. The problem is that there hasn’t been enough quantification of the collateral damage that comes through making savings and inhibiting access to, not just the courts, but to effective mechanisms of dispute resolution, whether that be the state with the criminal law or the civil courts.

Process v substantive justice Because access to justice is a right of citizenship, it is important that lawyers do not hijack the debate around this issue. Lawyers have a tendency to look at the world through our eyes and to look at process. And we do have a tendency to equate access to justice with access to the courts. This is like saying that all access to justice problems are solved with legal aid, which is an important component of it, but it is not the whole concept.

We have to see the debate from three perspectives 1. The access process; 2. The substantive law and the justice that is being accessed; 3. The role of avoidance of disputes rather than them up once they occur. The Family Court or youth justice system are the two areas that are probably the most proactive at heading off future disputes and problems. The de-lawyering of the Family Court has been very bad for access to justice because it hamstrings the ability of the Court to actually play a proactive role in preventing disputes, or at least in preventing any escalation of disputes. Lawyers are not seen in the correct light in family disputes. They grease the wheels and they ensure that the system runs smoothly to the benefit of those who need it, as opposed to plunging people into the maelstrom, not only of their own family problems, but also of having to navigate an increasingly complicated system, particularly given that they probably have an antagonistic relationship with their partner. That said, this is a societal debate. It is not a debate for lawyers to protect their own patch. The general public sees this as access to justice being all about lawyers.

A need to be heard We need to educate young people not only as to their rights but also as to their obligations. We have to think about raising young people who can deal with rights in a sophisticated way. There are concepts of global and domestic citizenship and service involved. It is about looking beyond oneself and considering how we interact with one another. Access to justice is right at the centre of that. If lawyers don’t stand up for access to justice better than they have in the past, they be under an increasing pressure to do more pro bono, when many lawyers already do an enormous amount of it. They need to organise themselves better so that they can combat the issues such as the Bazley Report, the de-lawyering of the Family Court, changes to the jurisdiction of the High Court vis a vis the District Court and Disputes Tribunal, the Earthquake List in Christchurch and the difficulty people are having accessing justice on that list. If lawyers don’t organise themselves better and get better at

lobbying in respect of these debates, then they face the consequences, which is to do more for less or for free.

The Court’s role in the debate If we go right back to the Magna Carta in 1215, it talked about the right to access to justice. That is where the debate about paying for justice is most controversial. Clause 40 of the Magna Carta said that no one will sell justice and no one will be able to deny or delay the right to justice. Aside from the Magna Carta, s27 of the New Zealand Bill of Rights Act 1990 guarantees a right to justice including the right to natural justice, judicial review and the right to bring or defend civil proceedings. The difficulty is that the general rights’ culture has become so diluted that whatever anyone wants to do suddenly becomes a right to do it. This diminishes the notion of rights, and perhaps has coloured some of the discussion about access to justice. However, as a rule, courts get very upset when there is an attempt to oust the jurisdiction of the court by way of privative clauses. The courts can only talk about those cases before them. There are a lot of cases that never make it as far as the courts. From a practical and pragmatic point of view people abandon cases before they make it as far as the court room. Some of the judiciary have noted that this is just as much an impediment to access.

“Filtering out” spurious or unmeritorious claims Overseas (and particularly in England) we have seen attempts at regulation aimed at filtering out at an early stage spurious or unmeritorious claims, before they clog the system. This presupposes that the courts are full of frivolous actions. There don’t appear to have been any figures that substantiate this claim or any analytical work done to say that there is a huge problem with vexatious litigants. The associated expense and stress of going to a hearing is as much a filter as anything. The period between the setting of the hearing date and before the actual day of the hearing is when people become more anxious and are more likely to give up on obtaining justice. There are so many hurdles in this time that they often filter out those cases that are not meritorious, or that are more appropriate for mediation or to be resolved in a different way. The increasing pressure on litigants provides an inducement to sort it out before the day. The flip side of this is that even if the case is meritorious, a litigant may settle early because the other side just can’t see that merit, or they are pursuing the case come hell or high water or because they have more money. Settling early may not be in the interests of justice or in the litigant’s own best interests. This is justice denied, because the impediments and the hurdles mean that getting a resolution becomes too expensive and/or stressful.

In general, it is not desirable to have anyone other than a judge culling matters out. Otherwise it could lead to a situation where basically you have to get a lawyer to argue an entire case to the Legal Services Agency in order to convince them there is some sort of case. We have to be very careful that the system, as good intentioned as it may be in trying to streamline things, doesn’t actually become the impediment itself and become more expensive - which it has to some extent.

Pleadings There is another consequence of having so many hurdles to get to a hearing. Pleadings are now not merely bullet points of the legal arguments; they are in fact the entire case. This has resulted in a set of rules to control the length of the pleadings - which is just ridiculous. Pleadings are so large because people realise that it may be the only chance to argue their case. Third Party Help We also have to come back also to the point about people’s knowledge. Life is more complicated now than at any time. Anything that is not absolutely straight forward requires having someone to help the litigant navigate through it. Third party help also gives the litigant the benefit of independence and objectivity. That particularly is needed when a litigant loses themselves in their cause. But people still need to be able to go through the journey themselves. We might have the most efficient and streamlined system, but if most of the public think that something is just not fair, then we have to ask what kind of justice system is that? Lawyers need to remember that sometimes they are a product of our own training, so much so that when the public say something is unfair, they may initially be unable to see that it may well be unfair. They might be able to come up with a very sophisticated argument that justifies it, but they may still be the ones who are in the wrong. Legal reasoning is not the only form of reasoning that there is.

Overcharging by lawyers Lawyers need to be mindful about what they charge, and that they are not pricing themselves off the market. But the fact is that if they really were charging out of proportion, then our second highest per capita lawyers in the world market could not be sustained because nobody would be able to afford them. The vast majority of lawyers don’t earn large sums of money and they do a lot of pro bono work. But it is also true that we both socially and economically have an underclass in New Zealand that is growing larger. And one of the things that they can’t access - on top of a whole lot of other things - is effective justice. They can’t get into the system other than being dragged through it, by the police usually.

Increasing efficiency through case management One possible solution for increasing the efficiency

with which disputes are handled is to give judges and increased role in case management. The discussion here borrows from the civil law inquisitorial processes, with the appointment of an investigating judge who oversees the case. There is a real virtue in the judge being involved in a hands on way from Day One. We already have this with self-represented litigants, with judges bending over backwards to ensure they get a hearing. There is a valid concern that judges may get themselves too embroiled in the detail of a case before all the facts have come out, and start man handling cases through the system. There is also another danger with self-represented litigants, where they not only spend a lot of time with them, but they suggest arguments that might be put. A judge could end up in the situation where they cross-examine on behalf of the self-represented litigant because he or she is doing such a bad job of it. If we accept that selfrepresented litigants is a fait accompli of the system that we have - particularly with the Google generation which believe they can do anything if they just look it up on Google first - then a softening of the inquisitorial process and the judge becoming more involved is a necessity.

Some other solutions There are solutions. First, the 24 community law centres in the country are not the result of a failing system. They are increasingly becoming an integral part of the system so that free legal advice or very heavily subsidised legal advice through community law centres will remain part of the system. Secondly, the blame for and the resolution of the problem should not be laid purely at the feet of government. We need a greater diversity of approach to our mentality of the idea of a day in court, substantive reform of the law and its processes, and much better use of technology. There are of course things that the government can do. For a start they can set up a Criminal Cases Review Panel. The bottlenecks and pressures in the system, such as the EQC claims in Christchurch, can be reduced. We require an adequate legal aid system, which may or may not include a Public Defender, and which may even go as far as providing civil advice on legal aid.

The role of the Law Schools We have to train lawyers better in terms of access to justice, so that they are not merely process orientated but so that they more comprehensively understand their role within the system. Students need to do more jurisprudence and understand the importance of the debate. Many

practising lawyers see this as an airy fairy subject. But if we are going to be about process alone, then letâ&#x20AC;&#x2122;s get rid of the degree. Why bother? Young people these days are geared towards changing the planet and solving the big problems. There has been a rise of social entrepreneurship and service learning in universities and high schools in New Zealand. These are the students coming through to the legal profession. We need to ensure that graduates have the right skill set for the way that the world is going. Because of this social entrepreneurship, solutions for access to justice are going to be quite novel and will involve concepts such as crowdsourcing for funds. Todayâ&#x20AC;&#x2122;s student has a much more holistic approach. The government is not viewed as providing all the answers. Instead of demanding that legal aid should be increased, the new generation will look too entrepreneurs and philanthropists to get their wallets out.

Is outsourcing the future? Some commentators have suggested that in future there will be the increased use of advocates who are not lawyers as well as a greater outsourcing of tasks (such as research and discovery) to legally trained but non-lawyer specialists. But it is important to remember that we need minimum standards for the giving of legal advice. At the moment in the absence of viable alternatives, lawyers and the training that lawyers get is probably the only protection. We need regulation to avoid charlatans and bush lawyers. Without regulation you could create more difficulties than you are trying to solve. We do need a greater diversity. For example, there would be a market for something like the Disputes Tribunal to have advocates to help people through this process. This would be a person who was short of being a lawyer but who was a regulated advocate. Clients donâ&#x20AC;&#x2122;t come to lawyers to be told what a statute says. Most clients come to lawyers for their business acumen and because they have analytical minds. Lawyers earn their money by explaining or predicting the impact of the law on the client. This is how they provide value and how the legal profession will continue to so do in the future. * Professor Gallavin is the Deputy Pro Vice-Chancellor for Massey University and the former Dean of Law at the University of Canterbury. For more information about Chris, see http://tinyurl.com/chris-gallavin

Petrol Head’s Corner By David O’Neill* In this issue, David O’Neill reviews the surprisingly sublime Skoda Octavia RS, and the even more sublime Jaguar XE. Skoda has not enjoyed an enviable reputation for many years, as remembered by most of us over the age of 50. However, I think the Skoda management are waiting for that generation to die out so they can convince the younger generation to buy their cars. Sadly, I am one of the older generation that well remembers the heavy, slow, badly built car which existed well prior to the turn of the century. Think up-market Lada…. I asked the National sales manager for Skoda why he had departed from the safe haven of Audi and VW to sell Skoda, and his response was that “he liked the challenge”. Well, there’s no doubt he has one, but it is not an insurmountable obstacle as you will soon see. Skoda New Zealand and Ebbett Skoda gave me an Octavia RS sedan with the 2 litre petrol turbo engine for a week. In that time I carted myself and my golf clubs to golf, two kids to the beach and generally ran round town in it. At $49,000 for the automatic version, this has got to be one of the better “bang for your buck” cars on the market. Essentially it is an Audi A4 platform, motor and DSG 6 speed gearbox with a different skin and badge. The car was front wheel drive. It had an Audi A4 2 litre turbo motor in it.

Speccy Bits • 162 kilowatts, 350nm of torque, 4 cylinder • front wheel drive • 6 speed DSG automatic • Claimed 0 – 100k/h was 6.8 seconds (not bad). Claimed fuel economy was 8.1 litres/100km around town and 5.4 in the country (even better though I didn’t achieve that. It’s a bit hard in Sport mode). The car itself, as you can see from the photographs, looked pretty snappy in red with blacked out grille and wheels. The interior was just as stunning in black with red stitching and accents.

When I say “good bang for your buck” – I mean it. This car had a touch screen central control system about the size of something between the iPad and iPad mini screen. It had Bluetooth media from the iPhone, (with a slot for your iPhone so it didn’t rattle around the cabin), and additionally had a CD player with a plug for the USB port. It’s got all the trappings of a much more expensive Euro but at half the price. I didn’t get to try the station wagon, but I imagine that it would be very similar to this car. The boot is huge. You could actually hide a couple of bodies in there if you wanted, together with the golf clubs. There is a ton of room in the back seat and the seats themselves look like they have been transplanted from a VW. Slapping it into sport mode made the car a joy to drive. It was quick, went round the corners well and all in all a very exciting car to puddle around in for a week. The list of standard features on the car is lengthy and the list of optional extras is short, but also well priced. For example, the flash sound system with 10 speakers was going to cost another $1,250. Tow bar, $400. Compare these prices to the expensive Euro list of options. The car had automatic headlights, automatic wipers, adaptive lights which went round corners with you, Bluetooth everything, the list goes on.

It also had other features you only find on expensive cars, such as Xenon lights (these are the really bright white lights you see on some cars. Once you have had them, you don’t want to go back to the old yellow ones) and voice activated controls. The car was pretty quick. It had that annoying front wheel drive problem which was when you put your foot down from stationary, it tended to leap about the place and judder a bit, but all in all, it was no different to any other front wheel drive car. It handled well round the corners without being too silly about it and I personally liked the handling very much. The car at $49,000 is great value for money. I am sure that the Justice Department thinks so because I understand they now specify these as their drive cars for the Judges. I bet they enjoy hooning around in them. I know I did. Of course Judges don’t hoon anywhere. How could I think such a thing. Oh well - there goes my chance of elevation to the Bench….. I am not sure whether they get the Octavia or the bigger version which is called Superb. I am driving one of these later in the year. Skoda is going in the right direction. Quality control is very good. Sure, this didn’t have the same solid feel that Audis have or some of the other more luxurious Euros, but it was well put together and quality was very high. In my view, the brand and the car are a winner.

The Jaguar XE One car that has never had an issue with its brand is Jaguar. It has long been associated with style and sleek speed. Jaguar NZ gave me the very latest Jag that has just been released. You will have all seen the advertisements on TV suggesting that a new snarling, rippling monster was about to emerge onto the world stage. Well, this was it… The car was a pretty (or so all the women said) mid to dark blue vehicle. It was powered by a 4-cylinder 2 litre turbo charged petrol motor. “A 4 cylinder, 2 litre engine...” I hear you say. Yup. It is. Mind you don’t despair. The pundits overseas have tested the new 4-cylinder motor due into NZ soon and rave about it. As for the 6-cylinder supercharged beast due to arrive sometime in the near future – well

salivate away. I suspect it’ll be worth the wait. Anyway – back to reality…

The Speccy Bits: • Drive-line – rear wheel drive • Power – 147kw • Torque – 280nm Performance Claimed performance was 7.7 seconds 0 – 100km/h with a top claimed speed of 237km/h – not the quickest around but more is to come... Fuel economy round town was 10.2 l/100km and out of town was 6 l/100km. I had the car for six days and drove it out of town on one occasion and I returned overall around 7.7 l/100km. All in all, a fairly economical car to run around in. Base model The XE was brought out by Jag as a replacement for the earlier, and relatively unpopular, Mondeo based X-type. It didn’t appear to be the most appealing car to the motoring public. The XE is essentially new from the ground up. New Zealand models currently have the Mondeo based motor, however fairly heavily modified. There is a new “Ingenium” 2 litre motor (this is the one I referred to earlier) coming which is supposed to be able to produce 200kw (correct – your eyes are not deceiving you – 200kw) which is a phenomenal amount of power out of a little engine. If you look at the current power output, you’ll see it is about another 50% on top of that. There is a 3.0 V6 supercharged car which is due into New Zealand soon and rumours of a 5.0 V8 floating around. Yum yum… Overall Impression When I first picked up the XE I was impressed with its looks. The front looks typically Jaguar with a hooded look to the lights, a big bulge in the bonnet and a long stretch back to the cabin. You could see hints of the E-Type (one of the coolest sports car around in the 60’s) in the styling. The rest of the car from the A pillar to the back is raked downwards and while the boot is not the biggest in the world, it is reasonably deep and there’s a lot more there than expected when you lift up the boot. The one complaint in relation to the body styling is that it is difficult to get into the back without bashing your head on the roof. Still – didn’t worry me. I kept hopping into the driver’s seat. Apart from that, once you’re in the car, there’s plenty of room and passengers behind found that despite me pushing the seat back, they had plenty of leg room. It is a comfortable car to sit in and to drive. The driver’s position is well appointed with everything at your fingertips.

Goodies The usual keyless start was available which, as I have said before, is a wonderful innovation. The tacho and speedo are mechanical (I think), but every other instrument is a virtual dial on a black screen background. The vehicle I

was driving comes at $87,800 (with some optional extras included) and has a number of luxury aspects which would otherwise be found in the options column. The options list isn’t that long and most of the features you could do without if you really didn’t want to fork out the extra. The car was brought out to compete in the mid-size market alongside the BMW 3 Series, Audi A4 and the Mercedes C Class. It has already been crowned as the “Compact Executive Car of the Year 2015” by a European car magazine. In New Zealand I think that (dare I say it), the older generation will be quite happy with the smaller motor, but for me, Jag has always meant tons of power, lots of noises and plenty of stonk. On this occasion, I didn’t get it and I would be happy (hint, hint) to drive the 3 litre V6 when it arrives in New Zealand. That is of course, as long as Jaguar let me near it. The R-Sport model that I had, had sportier settings and larger wheels, which meant that it rode well and felt very forgiving around corners. The aluminium chassis which is a new Jaguar feature made the car feel taut and responsive. The car also came with an 8 speed automatic which was OK, but funnily enough the car felt better out in the open road where you could smooth out the gear changes when you weren’t so aggressive with the accelerator pedal. Around town it got itself into a bit of angst as it tried to decide which gear it should be in when taking off in a hurry from the lights or similar. Like all 4 cylinder engines it got a little breathless when you pushed it a bit harder than usual. I would prefer to see this car with the new “Ingenium” motor. The car deserves

a more powerful motor and something that will truly reflect the Jaguar heritage. I would have liked to have had a chance to give it a bit of a bash in the corners but that wasn’t to be. The car arrived earlier than I expected and it meant I couldn’t take it on my usual test drive which was over the hills into the Coromandel Peninsula. By the same token, the car felt comfortable and would be an easy drive. It certainly got the looks with head turning from people in the street. People turned and watched as you went past. From the rear it has its own styling. At first glance, it could be mistaken for a 5 Series BMW or even a Saab (really – I’m telling the truth), but once you look a little bit harder you can see that it looks like neither and it definitely has a brand new style all of its own. As I said at the beginning of this article, the front definitely looks Jaguar - like and has the look of a cat with hooded eyes. $87,800 will buy you this car in the R Sport version with added extras. I haven’t driven the base model, but expect the extra gives you that little bit more and is probably worthwhile. Then again, if you really want to start talking Jag, then wait for the 3 litre V6 to come out because I suspect that will be the car to have. The base price of that car is $106,000, but it comes with a truck load of standard features which are otherwise options on all the other models. I did notice that a “heads up display” is available, but with a solar attenuating windscreen (whatever that is) as a combination package costing $3,000 it is probably a little bit expensive. * Petrol Head David O’Neill is a barrister practising in Hamilton. David is the NZBA Treasurer, At the Bar Editor and writes regularly for At the Bar. For more information about David see: http://www.nzbarrister.com/

Pack Your Bag! by Sandra Barclay-Graham (MNZITT)* are you seeking adventure or a cultural experience? This will help you choose your route and your timetable. 3. Research your destinations before you leave: apart from ensuring that you don’t miss key sights while away, this enables you to plan your itinerary according to your comfort level. Not all of us are keen on rolling out a sleeping bag under the stars and you may be well past your youth hostel days. Researching destinations and routes will ensure you have realistic expectations of what you are likely to encounter so that you are not shell shocked on arrival.

One of the hallmarks of overseas travel today is that it is as varied as the people who undertake it. Many people plan their holidays well in advance, but others may suddenly find they have a small unexpected window of opportunity to get away at short notice. The traditional overseas holiday destinations are still popular, from the Fijian or Australian resort through to Disneyland with the kids. However, there is now a plethora of destinations to suit every one, and each year different holiday destinations and activities appear. The problem is not deciding to take a holiday – it is deciding where to go.

Planning your holiday So, what are the steps to the perfect holiday? Your first decision is how much time you have to put into the planning. If you have a busy life, and the holiday is about rest, the last thing you need it to exhaust yourself trying to handle details and complexities of booking. This is where a travel agent can help. They will know the best way to achieve what you want and often will save you time and money. They also have the inside scoop on the latest destinations and deals.

4. Don’t over pack: again, some planning in this area will mean that you are not tempted to dump your suitcase into the nearest river half way through your holiday. It is a well-known fact that bags become exponentially heavier the longer you travel and the more stairs you have to climb – whether or not you have bought anything. 5. Consider reserving some accommodation: flexibility is great, but if you value your sleep and comfort, you may want to book your accommodation. Everyone hears the tales about how it isn’t necessary to book ahead and you can always get a room somewhere. The problem with that is that you may not know if there is an event in whichever town you arrive in and the hotels may be booked out, leaving you with dodgy and uncomfortable options. 6. Be realistic: travelling inevitably involves some discomfort and some disorientation. Not only is it not like home, it shouldn’t be like home! This is your opportunity to experience something different. You will

But whether or not you use an agent, here are a few general rules which may help you to plan: 1. Set your budget: work out how much you can afford to spend and then stay within your limit. A travel agent can help by giving you a guide as to how much you are likely to spend at your destination. Then add a contingency to the amount you have estimated. 2. Work out what the main purpose of the holiday is: do you want to “flop and drop” on a beach chair, attend a special event while adding a holiday on the end, or

find that having realistic expectations will make your holiday much more enjoyable.

Choosing where to go Our choices for a holiday destination can be limited by having to visit a place because of family ties, or going to a particular event such as a sporting event. If, however, you are starting out with the vague idea that you need a holiday, you may find the choice overwhelming. On the other hand, you might need some inspiration. Again, rather than listen to your mate who had a great holiday last year, you might want to talk to a travel agent to decide what best suits your personality (as opposed to your mate’s) and whether there are new options available in the current season. Often today’s travelers want something unique. For those who want to take a ‘once in a life time’ journey, there are options from a cruise to Antarctica, a journey to the Northern lights, or a luxury camping safari in Africa. Safari camps in Africa are fantastic, include a side trip to visit the Gorillas of Rwanda and the journey is magnificent. Many of these special destinations or experiences do need to be booked well in advance to secure the destination of your choice. For instance, the summer period to visit Antarctica is very short and the number and size of ships is limited. Exploration cruising to Antarctica and the Arctic needs to be booked well in advance. Antarctica Cruises are taking bookings for the 2017/18 summer now. This doesn’t mean that last minute travel is impossible. There are some great specials for those who can depart at short notice. Sometimes a destination can be enhanced with adding a special experience by incorporating a hobby or a bucket list item such as learning to surf in Hawaii, sand-boarding in the deserts of Namibia or Peru, visiting a gallery or a museum with special behind the scenes access or riding a horse in Chile’s Torres del Paine National Park. Hiking, walking and cycling journeys are also very popular with amazing destinations like the Camino de Santiago in Spain and France or the incredible regions of Patagonia and Bhutan. Cycling or walking in the countryside and national parks of Colombia and Ecuador is a less well known option. More traditionally, you have the option of cycling the canal pathway alongside your canal boat in Europe – always a great way to take time out. If expending that level of energy is not your idea of a holiday, you may want to think about a sailing holiday. There are many cruises with specialist onboard guest speakers covering everything from food and wine, to archeology, biology and geology of the areas you are exploring. Small ship cruising has enormous potential including Tahiti’s gorgeous islands or through the Beagle Channel in Southern Chile, stepping ashore on Cape Horn. It’s also possible to avoid flying altogether and cruise directly south from New Zealand to the wilderness of the Auckland and Snare Islands or cruise the Bay of Islands

playing golf at the fabulous courses of the area. Another option for the more adventurous or more experienced is bareboat chartering a sailboat for your vacation. You need a minimum of a week plus travel time to sail in different destinations around the world. One of the most popular is Croatia, which has 5,800km of coastline, 4,000km of which belongs to islands, cliffs and reefs. It is an ideal location for short hop sailing itineraries. If you’re not a sailor, no problem, a skipper can be organized. Of course, you may want to stay closer to home and consider a charter in the Kingdom of Tonga, known has James Cook’s friendly Islands. While there you may like to try swimming with the whales! A great idea for a holiday with a difference is to combine it with learning more about a special interest. If cooking is your thing, there are many cooking schools and tours where you can learn to make national dishes from the locals with like-minded souls, for either a day or immersing yourself fully with a few days or a week in a villa. If you’re a golfer, then playing some of the world’s best courses can be incorporated into your itinerary, or be the focus of your trip. For those who would prefer be transported rather than doing the work themselves, train journeys are a great way to see a country, with many wonderful routes. Many of us grew up with tales of exotic, slow train rides across continents. These are still exotic but many of the trains are now highly luxurious and relaxing, and not necessarily that slow. Train routes include the Rocky Mountains, India, Europe, the UK, the Blue train in Africa or the Ghan from Sydney to Perth. Some of these can be combined with cruise packages. Finally, if time is not on your side, and you only have a few days, Australia remains a great destination if you need something closer to home. The Western Australia National Marine Park, Ningaloo is a great place to see colourful coral gardens and or swim with the gentle whale sharks. The Australian options are numerous and well worth exploring with your travel agent. * Sandra Barclay-Graham is a Travel Advisor with The Private Travel Company. For more information, please refer to their website at www.privatetravel.co.nz

What is Your Most Valuable Asset? By Mark Rogers and Helen Condon* This article outlines an NZBA member benefit from Mercer Marsh Benefits1. Do you insure your house, your contents, your professional liability? So why should your income be any different? Will you be able to pay your bills and meet your financial responsibilities if you are unable to work? Income Protection provides a monthly benefit should you be temporarily or permanently disabled through sickness or an accident which is not covered by ACC. Many business operators overlook the importance of Income Protection with the view that “It will never happen to me”. During the 2014 financial year Sovereign paid approximately 800 Income Protection claims with around 50% of them for long term claims in which the individual never returned to their vocation. The claims for 2014 resulted in $42 million paid in Income Protection claims. That is roughly $800,000 per week. Around $10 million of the claims paid were for cancer alone.

2014 Disability Income Claims paid by diagnosis and age.

As you will see from the following case studies provided by Sovereign Insurance, Income Protection can be of more benefit to an individual than just financial security.

Case Study: Mental Health A fit and healthy 30 year old man who was in the regular forces was medically retired from the army. Type of illness: mental health condition. After the individual’s Income Protection claim was accepted he was able to relocate to Auckland where mental Mercer Marsh Benefits™ is a joint venture between MMC sister companies Marsh Limited and Mercer (N.Z.) Limited

Source: Sovereign

health specialists were more accessible. This significantly reduced his need to travel and resulted in more frequent appointments with his therapists. Moving to a bigger city also increased the chances of him finding work which was important, particularly for him as he was still quite young. The case manager was able to match him with a provider who could offer him the treatment he required and he was comfortable working with. Thanks to the support and treatment he received he is currently training to work in a private security company stationed overseas. He feels this is the closest he can get to returning to the type of work he did in the armed forces which he misses. These options would not have been available to him if he had not had income protection cover.

support herself and her daughter through this difficult time. [Source: Sovereign] As many of you will be aware members of the NZ Bar Association have access to a plan that provides income protection insurance up to 75% of your annual income, up to a maximum of $60,000 per annum paid monthly in arrears after an eight week waiting period. The benefit is payable up to age 65. Cover can be increased based on individual underwriting and will be subject to retail rates. and up to the age of 65. New members to the Association and members who join within any offer period, can take advantage of the Automatic Acceptance Limit subject to satisfactory completion of a short questionnaire.

[Source: Sovereign]

Case Study: Physical Illness A 44 year old single mother, who worked as a senior policy analyst for a local council body. Type of illness: breast cancer complicated by recurrent infections.

For more information or to apply for cover please contact Mercer Marsh Benefits on 0800 805 333 or email mmbnz@marsh.com or visit www.marsh.co.nz/mmb * If you have any questions about any of the NZBA/Marsh insurance products, please contact Mark Rogers at Mark.Rogers@marsh.com.

This individual needed to travel to receive chemotherapy and attend post-surgery reviews with her specialist, having her Income Protection claim accepted meant that she was able to concentrate on treatment and recovery and ensure she had the means of traveling to and from hospital to attend her appointments. Before she fell ill she worked full time in a demanding job whilst raising her 5 year old daughter. The Income Protection payments meant that she was in a position to

2013-2014 COUNCIL CONTACT DETAILS

2015 - 2016 COUNCIL CONTACT DETAILS

PAUL MABEY QC - President Ph: +64 7 577 1091; Fax: +64 7 577 1092 pgmabey@xtra.co.nz PO Box 13199, Tauranga 3141 PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 peter@davey.co.nz PO Box 1811, Auckland 1140 JOHN DIXON Ph: +64 9 306 2775 john.dixon@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 JONATHAN EATON QC Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz PO Box 3180, Christchurch 8140 CLIVE ELLIOTT QC – President Elect Ph: +64 9 307 1769; Fax: +64 9 366 1599 elliott@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz PO Box 1121, Shortland Street, Auckland 1140 LISA HANSEN Ph: +64 4 914 1052 l.hansen@barristerscomm.com PO Box 5577, Wellington 6145 GREG HOLLISTER-JONES - Associate Member Representative Ph: +64 7 928 6202; Fax +64 7 578 1515 g.hollister-jones@rhjl.co.nz PO Box 13063, Tauranga 3141 DENNIS JENKIN Ph: +64 9 307 1769 djenkin@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 DALE LESTER Ph: +64 3 366 1465 dale@canterburychambers.co.nz PO Box 9344, Christchurch 8146 DAVID O’NEILL - Treasurer Ph: +64 7 839 1745 david.oneill@nzbarrister.com PO Box 815, Hamilton 3240 ALICE OSMAN - Junior Barristers’ Representative Ph: +64 4 915 9278 alice.osman@stoutstreet.co.nz PO Box 117, Wellington 6140 PAUL RADICH QC Ph: +64 4 974 5951; Fax +64 4 974 5955 paul.radich@cliftonchambers.co.nz PO Box 10731, Wellington 6143 ALEXANDRA SINCLAIR - Junior Barristers’ Representative Ph: + 64 9 354 1403 asinclair@shortlandchambers.co.nz PO Box 4338, Shortland Street, Auckland 1140 STEPHANIE THOMPSON - Junior Barristers’ Representative Ph: +64 21 294 8928 stephanie@smthompson.co.nz PO Box 405, Shortland Street, AUCKLAND 1140 DEAN TOBIN Ph: +64 3 477 8781; Fax: +64 3 477 8382 dean.tobin@princeschambers.net P O Box 1424, Dunedin