At the Bar September 2016

At The Bar September 2016

The Hitchhiker’s Guide to the TPPA On-Line Courts in Civil Proceedings Justice Stevens - Final Judicial Observations

From the President

By Clive Elliott QC INSIDE THIS ISSUE Pg 2 - From the President Pg 3 - Committee News Pg 4 - New Members Pg 6 - The Hitchhiker’s Guide to the TPPA Pg 13 - On-Line Courts in Civil Proceedings Pg 16 - Final Judicial Observations

Pg 17 - Final Sitting - Justice Stephens Pg 19 - New Exploratory Legal Tool Pg 21 - Bench and Bar Dinner Pg 22 - Mindfulness Case Studies Pg 24 - Parenting Under Pressure Pg 26 - Designing Your Space Pg 28 - Trust Compliance Pg 29 - Lawyers and Kiwisaver Pg 32 - Petrol Head’s Corner Pg 36 - 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

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As members will likely know, we have had to hold an election for the new Council for the term starting on 1 October 2016.

This was only in respect of the Auckland and Wellington regions where there were more nominees than places. We are delighted that there is this level of interest and commitment to serve on the Council and I encourage other members to consider standing when nominations are called for next year. The results of the election will be advised to members at the Annual General Meeting. As previously advised, this will be held on Friday 16th September in Taupo. Members not in attendance at the conference will be sent an electronic copy of our Annual Report and election results shortly thereafter.

2016 Annual Conference – 16 & 17 September - Taupo The Annual Conference is being held at the Millennium Hotel on the lakefront at Taupo. We are fully subscribed, and we are delighted with the level of support from members. My thanks to the organising committee for arranging this excellent event.

Queen’s Counsel appointments The Silks Ceremonies for the 12 new Queen’s Counsel have been held. Celebratory dinners will be held in Wellington on 27 October and Auckland on 1 November. These dinners are not just to congratulate the QCs themselves, but are an excellent opportunity to gather with colleagues and support the Queen’s Counsel process. Registration is available via our website. I encourage members to join colleagues and take part in the celebration.

Bench and Bar Dinner –Wellington, 27 July The Wellington Bench and Bar Dinner was a great success and the event was a sell-out. We were delighted that the Solicitor-General, Una Jagose QC, was able to attend and address guests. Her talk was informative, interesting and uplifting and it was a great pleasure to have her along. Photos of the event are on page 21.

Tax treatment of barristers’ incomes Barristers are currently one of a very limited group of taxpayers conducting business who are permitted by Inland Revenue to return their incomes on a cash rather than accruals basis. As a result of the changes to the Intervention Rule, an issue regarding the timing of tax payments was raised. As advised in our March 2016 issue of At the Bar, NZBA has received considerable assistance from tax specialist Geoff Clews who has recently informed NZBA of the publication of a consultation document from Inland Revenue dealing with the derivation of professional income and referring to barristers’ incomes.

We are advised by Mr Clews that the position detailed in the document largely preserves the status quo of cash basis recognition of income, while leaving open the possibility that the scale and scope of some barristers’ practices might make for accrual accounting providing a better reflection of income. In Mr Clews’ view that would be very much the exception rather than the rule. We will keep members informed of any updates.

Access to Justice Working Group The Access to Justice Working Group is planning to publish a comprehensive report later in 2016. An Access to Justice Update session will be held at the Annual Conference. The Hon Justice Winkelmann, the Hon Justice Venning, Professor Chris Gallavin (who is drafting the report on behalf of the Working Group) and Cameron Madgwick, Co-Chair of the Community Law Centres o Aotearoa, will be present at that session.

Advisory Barristers We have recently established a Committee comprising members of the advisory bar including Peter Castle (chair), Dr Derek Johnston, Jane Meares, Michael Webb, Stephen Layburn and Mark Russell. The committee has been established to assist the NZBA by informing it of matters relevant to its members and to enable it to receive assistance from advisory barristers when required.

Member Benefit Smartphone App Members are reminded that they can access a wide

range of member benefits from almost 50 different companies. Easy access to relevant information is available on our website and also on your smartphone via the member benefit app, now available from the App Store and on Google Play, and members should have recently received an email with instructions on downloading the new app. It also has links to our newsletter, website and upcoming events. If you need assistance to download the app, please contact NZBA Administrator Lisa Mills at nzbar@nzbar.org.nz .

Junior Barristers The 2016 Shortland Chambers Junior Barrister’s Drinks Function was held on 4 August. The event was expertly organised by Chambers Manager, Pamela Caldwell, and attended by 35 junior lawyers. Jane Anderson QC and Adam Ross spoke on their respective paths to the Bar. The NZBA would like to thank all those at Shortland Chambers for their continued support of this event and the junior members.

Committee News Criminal Committee It has been a relatively quiet period for the Criminal Committee. On request from the Ministry of Justice we have provided feedback on the revised legal aid provider contracts for services and associated practice standards (thanks to Robert Lithgow QC and Simon Shamy). There are a number of issues in the legislative pipeline that will require our attention including the Law Commission recommendations about alternative court processes for sexual violence cases, a specific offence of non-fatal strangulation and proposals for changing the law of self-defence for family violence victims. These are controversial proposals in respect of which there may well be a divergence of opinion. Matthew Phelps of Market Street Chambers in Hastings has recently joined the Committee. – Jonathan Eaton QC, Chair Gender Equity Committee Some members of the NZBA Gender Equity Committee have recently been in discussions with Crown Law about how they can work towards the goals of the NZBA Equitable Briefing Policy adopted several years ago by Crown Law. The Committee, made up of Jim Farmer QC (chair), Kate Davenport QC, Paul Radich QC, Wendy Aldred, Karen Feint, Simon Foote and Lisa Hansen is meeting shortly to consider how equitable briefing can be improved.

NZBA was a finalist in the Gender Equity in Non Profit Sector Category in the Women in Governance Awards held on June 30th in Auckland. The awards ceremony was attended on behalf of NZBA by Kate Davenport QC and Melissa Perkin. – Melissa Perkin, Executive Director

Training Committee Members of the Training Committee have been carrying out work behind the scenes to develop a training programme that will assist members to improve their skills as advocates. This will build on the successful appellate and cross-examination workshops that have been held over the last couple of years and provide a structured approach to advocacy training.

At this stage, the focus has been on developing a syllabus that will cover the major aspects of advocacy from preparing pleadings through to appearing as counsel on appeals using a combination of webinars and workshops.

As part of that process we have had discussions with Ian Robertson SC and Phil Greenwood SC to discuss the programmes run by the Australian Bar Association and individual states in Australia and to explore areas for future co-operation between the NZBA and ABA. As part of an upcoming redevelopment of its website, NZBA will be including a Learning Management System to supplement the webinars and workshops, which will enable members to undertake on-line continuing professional development in their own time and to maximize the number of members who can access the training programme. In the meantime, the sold out Voice Masterclass by Lucy Cornell on 31 August 2016 was an excellent opportunity to further develop oral advocacy skills. – Peter Davey, Chair

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New Members Catherine Andrew Susie Barnes David Caldwell

TAURANGA MASTERTON CHRISTCHURCH

Susanne Lott

HASTINGS

Maria Mortimer

AUCKLAND

Jack Oliver-Hood

AUCKLAND

Hannah Douglas

TAURANGA

Christopher Patterson

AUCKLAND

Madeleine Flannagan

AUCKLAND

Andrew Peat

AUCKLAND

Catherine Fry

AUCKLAND

Heather Rogers

AUCKLAND

Simon Hamilton

AUCKLAND

Marcus Zintl

GREYMOUTH

Taryn Gudmanz

DUNEDIN

Karen Hanna

DUNEDIN

Hanne Janes

AUCKLAND

Catherine (Kate) Wiseman

AUCKLAND

Edward Johnston

AUCKLAND

James Little

AUCKLAND

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The Hitchhiker’s Guide to the TPPA:

what you need to know about investment protections and investor-state dispute resolution

By Simon Foote and Sam Jeffs*

Simon Foote

Sam Jeffs

Heated public debates about the Trans-Pacific Partnership Agreement (TPPA) have trained the spotlight on New Zealand’s involvement in investment treaties and investorstate arbitration as never before.

Critics say the TPPA will curtail New Zealand’s sovereignty by favouring the interests of foreign investors, who are able to access investorstate dispute settlement (ISDS) provisions. Commonly evoked is the image of the despotic multinational corporation bent on forcing the government to forego public regulation with the threat of billion dollar lawsuits decided by obscure offshore tribunals.

The reality is less dramatic. The TPPA does provide protections for foreign investors in New Zealand — as well as for New Zealand investors in other TPPA member states — and the TPPA’s ISDS provisions do permit investors to arbitrate claims against states for breaching investor protections. But New Zealand is already party to a raft of existing investment treaties and fair trade agreements that provide for these same protections and dispute mechanisms. In fact, the TPPA is more progressive than many of those pre-existing treaties; states are largely free to regulate in the public interest; and the TPPA’s dispute settlement mechanisms are robust and transparent.

In this article, we explain the main things you need to know about Chapter 9 of the TPPA, which contains the investor protections and ISDS provisions. We then discuss the underlying criticisms of ISDS and suggest that the progressive nature of the protections and ISDS provisions in the TPPA highlights the need to review the terms of older trade treaties to which New Zealand is a party.

The TPPA: what you need to know When will it come into force?

The TPPA was signed by the 12 member states in Auckland on 4 February 2016. However, it will not come into force until ratified by at least six member states including both Japan and the United States. Presently,

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both American presidential candidates have disavowed the Treaty. Accordingly, its fate seems to lie in the hands of the late 2016 lame-duck session of the United States Congress or through renegotiation with the next administration.

Who and what are protected under the TPPA? The TPPA protects an “investor” who owns an “investment” within the definitions of those terms. As with most investment treaties, “investment” is defined broadly to cover almost every conceivable commercial activity.

In saying that, a qualifying investment must exhibit the “characteristics” of an investment, which includes factors such as a capital contribution, an assumption of risk, and an expectation of profit. This proviso aims to exclude one-off sale and purchase transactions in favour of more permanent investments that, in theory, contribute to the host state’s economy.

An “investor” means a national of a member state or an entity (such as a company, trust or partnership) constituted under the laws of a member state. There is no need for direct ownership to qualify as an investor; the TPPA permits an investor to own an investment through multiple corporate layers despite the fact this often obscures the investor’s identity. In order to protect against abuse, the TPPA permits a host state to deny investment protections to shell companies ultimately owned by its own nationals or by investors from a nonmember state. There is an exception: an entity with “substantial business activities” in another member state will not be excluded from the TPPA’s protections regardless of the nationality of its ultimate owners.

What are “investment protections”?

There are more than 3,000 investment treaties and trade agreements worldwide, most of which offer the same standard protections. A state that is party to such a treaty is typically required to extend the following protections to investors: (a) the obligation not to expropriate investments without compensation; (b) the obligation to treat investments and investors fairly and equitably (“fair and equitable treatment” or “FET”); (c) the obligation to provide full protection and security for investments (“full protection and security” or “FPS”); (cont. on p8)

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(d) the obligation to treat foreign investments the same as domestic investments (“national treatment”); and (e) the obligation to accord foreign investors from different states the same treatment (“most favoured nation treatment” or “MFN”).

Ex propriation FET FPS National Treatment M FN Free Transfer Denial of benefits ISDS

UNCITRAL

ICSID

ICSID/UNCITRAL

The most important of these obligations are the prohibition on expropriation without compensation and the obligation to provide fair and equitable treatment.

This is because they are broad enough to encompass the other, more specific, obligations. As a result, they are also more likely to arise in practice.

Expropriation without compensation The prohibition on expropriation without compensation has been generally accepted as part of customary international law since at least the 1930s.1 The concept is simple enough — a state may expropriate property so long as it provides prompt, adequate and effective compensation — but the devil is in the detail.

Direct expropriation — the taking of title to an investment, typified by the confiscation of foreign-owned assets often by military or police force — is uncommon nowadays.2 More common, and more complex, is indirect expropriation, which may arise where regulation emasculates the economic rationale of an investment.

A classic situation (used, for example, by Hugo Chavez

ICSID/UNCITRAL

ICSID/UNCITRAL

Ko re So ut h

lia Au st ra

AN AS E

M

C ICSID/UNCITRAL

al ay

si a

a

Unlike many investment treaties, the TPPA provides guidelines to assist with the identification of indirect

hi n a

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S in

Ho

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New Zealand is familiar with all of these obligations. The chart below shows that, with limited exceptions, the TPPA contains the same obligations as most of New Zealand’s current investment treaties. The TPPA simply extends these obligations to a greater number of states.

against foreign actors in Venezuela’s oil industry) is when a state targets an investor or industry with commercially untenable taxes or royalties to force liquidation or asset fire sales. Often, the government or its friends then “legally” acquire such assets.3 While some regulation can be easily identified as discriminatory and mischievous, many other circumstances, particularly where public welfare issues conflict with commercial interests, are more difficult and controversial.

ICSID/UNCITRAL

TPPA

ICSID/UNCITRAL

expropriation. The guidelines call for a case-by-case inquiry that considers the character of the state’s action, the economic consequences of those actions on the investment, and the extent to which those actions impair objectively reasonable expectations for the investment.

In an important exclusion, non-discriminatory regulatory actions taken by states to protect legitimate public welfare objectives (public health, safety, and the environment) do not amount to indirect expropriation, except in “rare circumstances”. Public health, in this context, is defined to include the regulation, pricing and supply of pharmaceuticals, thereby insulating the Pharmac regime in the New Zealand context from challenge by foreign investors.

Fair and equitable treatment Fair and equitable treatment is, at first glance, an amorphous standard.

The TPPA pegs it to the standard set by customary international law.

Nevertheless, ambiguity remains because it is unclear whether customary international law requires “gross and unconscionable conduct” or mere “unreasonableness” before a breach arises. (cont. on p10)

The modern iteration of the expropriation protection was dubbed the “Hull doctrine”, after United States’ Secretary of State Cordell Hull’s demand that Mexico guarantee “prompt, adequate and effective compensation” for Americans stripped of farmland by Mexico in the 1920s. We say “generally accepted” because some states, particularly those in South America, have often refused to recognise this doctrine.

2 But it still occurs – for example, Zimbabwe has recently been found responsible under the Switzerland-Zimbabwe bilateral investment treaty for encouraging and organising the “veterans” who conducted land seizures in the late 1990s-early 2000s: see Von Pezold v Zimbabwe (ICSID Case No. ARB/10/15).

3 For example, see Mobil v Venezuela (ICSID Case No. ARB/07/27) and Tidewater Inc v Venezuela (ICSID Case No. ARB/10/5).

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Importantly, as with expropriation, legitimate public welfare measures are permitted without fear of breach of the fair and equitable treatment standard. Similarly, tax measures are excluded from complaint by foreign investors.

Moreover, the TPPA clarifies that the fair and equitable treatment standard is not breached simply because a state has breached another obligation in the TPPA or another international agreement. Nor will a breach of fair and equitable treatment arise solely because state action is inconsistent with an investor’s expectations, even where loss or damage occurs to an investment as a result.

Scope of protections narrowed The exceptions to expropriation and fair and equitable treatment narrow the scope of the protections and, in our view, go a long way to address concerns that the TPPA invites suit by foreign investors every time state regulation impacts adversely on corporate profits.

Nevertheless, clarification of the threshold for breach of the fair and equitable treatment standard and the “rare circumstances” in which public welfare regulation might be challenged will be important to set the scope of the central TPPA protections. This task is not entirely left to tribunals, however. The TPPA requires establishment of a TPP Commission made up of representatives of the member states. This Commission has the power to issue interpretations of the TPPA that are binding on tribunals. We suggest these interpretative matters ought to be high on its agenda.

Other carve outs of general application are also important. ISDS does not apply to New Zealand and Australian investors in each other’s territories. One provision protects regulation against tobacco products, while another provision, unique to New Zealand, allows the government to take legitimate measures in favour of Maori, including measures it deems to be in furtherance of its Treaty of Waitangi obligations. No other member state has an equivalent protection for its indigenous populations. The Waitangi Tribunal recently considered this particular provision, observing it was an “achievement” in such a vast multilateral trade agreement. The Waitangi Tribunal concluded the Treaty clause would “offer a reasonable degree of protection to Maori interests.”4 4 5

How are claims brought against member states?

In short, once an investor considers its rights have been breached, it may commence arbitration against the allegedly offending state before a three-member arbitral tribunal. The investor must first notify the state of the dispute and seek to resolve the dispute for a period of six months before the arbitration proceedings can proceed.

To what extent does the TPPA address the underlying objections to ISDS? It is not in the scope of this article to debate the merits of free trade or the specifics of the TPPA’s trade measures in respect of any particular country or industry. With respect to the investment chapter of the TPPA, however, there are two fundamental areas that attract protest: sovereignty concerns and procedural concerns.

Sovereignty: do investment treaties lead to regulatory chill?

The well-known criticism of the TPPA is that the prospect of billiondollar claims by foreign investors will stifle regulation and thereby put limits on sovereignty. Thus, it is said, the TPPA privileges the profitdriven goals of corporates over the interests of the public. It must not be forgotten that entering into treaties is an exercise of sovereignty and all treaties abrogate sovereignty to some degree. The issue here is simply whether obligations assumed by a member state are worthy of the benefits of a treaty; this is ultimately a political and empirical question.

Undeniably, investment treaty obligations must be taken into account in the regulatory process. To some extent, then, treaty protections act as a check or brake on regulation of matters that affect foreign investments. So far as the investment protection provisions of the TPPA are concerned, there are number of factors that suggest concerns about regulatory chill are overstated. First, it is worth observing that New Zealand (and most other member states) is already subject to similar obligations as those contained in the TPPA yet it has not abandoned regulating in the public interest.

Secondly, as illustrated above, the carve outs and exceptions to the investment protections in the TPPA, and the defined scope of the protections themselves, demonstrate a clear desire by member states to preserve regulatory space without fear of violating the Treaty.

Unsurprisingly, it seems to us that the balance struck

Waitangi Tribunal Report on the Trans-Pacific Partnership Agreement (Wai 2522, 2016) at preamble page X and 51-52.

Susan D Franck and Lindsey E Wylie “Predicting Outcomes in Investment Treaty Arbitration” (2015) 65 Duke Law Journal 459 at 490.

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between investors and states in the TPPA is conservative in favour of the member states.

Thirdly, the TPPA contains specific measures to guard against the use of unmeritorious claims (or the threat of such) as leverage for investors to lobby against regulation.

A respondent state can protest jurisdiction or apply to strike out a claim for lack of legal merit on an expedited basis. States may also raise counterclaims in connection with the claim or as a set-off against the investor. These mechanisms, and the potential for costs awards on a loser-pays basis unfettered by scale costs, seek to dissuade investors from bringing unmeritorious claims.

Although there will always be grey areas, and claims will be brought against member states at some point, in our view an investor will need to show the impugned regulation is clearly arbitrary or unfairly discriminatory to succeed. In the history of investment arbitration, results have favoured states by almost 2:1.5 Moreover, successful investors are often awarded only a fraction of the damages claimed.

State success is even higher where the state is a modern democracy with developed policy making institutions. The United States has won all 17 of the North American Free Trade Agreement (NAFTA) claims brought against it to date. Australia recently saw off a challenge to its tobacco plain packaging laws at the jurisdictional stage. Generally speaking, successful investor claims concern relatively extreme governmental measures such as Robert Mugabe’s land seizures in Zimbabwe, vindictive targeted tax measures in Russia, and thinly veiled programmes of oil asset nationalisation in Ecuador and Venezuela.6 Accordingly, the TPPA is drafted to

meet the criticism that such treaties favour investors and can become instruments to influence legitimate government regulation to an unacceptable degree.

Procedural issues: is the investment arbitration process fair to States?

A panoply of reservations is commonly heard about important government decisions being scrutinised by tribunals, operating off shore and in secret, populated with corporate lawyers-turned-arbitrators biased against states. These concerns do not accurately represent the modern day world of investment arbitration.

To take a step back, investor-state arbitration came about as a post-WWII response to the need for peaceful commercial dispute resolution. In the 19th and early 20th centuries, it was not uncommon for foreign investment disputes to precipitate serious diplomatic stand offs and even violence.7 The alternatives to investor-state arbitration are “diplomatic protection” – a cumbersome political process requiring the home state of the investor to champion its cause at the International Court of Justice - or for the investor to submit to the courts of the other party’s jurisdiction. Domestic courts in different jurisdictions are of variable quality and may not enjoy the independence from executive government we take for granted in New Zealand. In addition, enforcement of foreign judgments is often problematic.

Arbitration avoids these problematic alternatives by providing a neutral non-political forum where the investor can raise its grievances directly with the host state. Investment arbitration has the significant benefits of neutrality, consistency of

See Von Pezold v Zimbabwe (ICSID Case No. ARB/10/15); Yukos Universal Ltd v Russia (PCA Case No. AA 227); Occidental Petroleum Corp v Ecuador (ICSID Case No. ARB/06/11); and Mobil v Venezuela (ICSID Case No. ARB/07/27).

7 Although it might seem far-fetched in the 21st Century, there are a number of instances where trade disputes precipitated gunboat diplomacy. Two prominent examples are the French intervention in Mexico between 1861–1867 and the Venezuelan crisis of 1902–1903. In the latter situation, Britain, Germany and Italy imposed a naval blockade on Venezuela after it defaulted on foreign debts.

8 Nigel Blackaby et al Redfern and Hunter on International Arbitration (5th ed, OUP, Oxford, 2009) at [1.01].

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substantive law and procedure across boundaries, and global enforceability of awards via the ISCID and New York Conventions. These features are why “international arbitration has become the principal method of resolving disputes between States, individuals, and corporations in almost every aspect of international trade, commerce, and investment”.8 Investment tribunals do not operate free of rules. The TPPA provides for an option between either the ICSID (World Bank) and UNCITRAL (United Nations) arbitration rules, both of which are long standing and well used in practice.

The TPPA supplements certain aspects of these rules. For instance, the TPPA requires transparency of arbitral proceedings, akin to what we would expect in New Zealand court proceedings: all pleadings, transcripts, tribunal orders and awards are public.

Moreover, hearings must be conducted in public. These are not secret tribunals.

Neither are arbitral tribunals populated by stereotypical pro-business corporate lawyers. We note above there is no empirical evidence of a bias on the part of arbitral tribunals toward investors. In any event, the appointment process for arbitrators is intended to produce a neutral tribunal. Of the three arbitrators, each party appoints one and, together, they appoint a presiding arbitrator (absent agreement, an appointment is made by a neutral third party arbitration institution). The arbitration rules include provision for parties to challenge arbitrators in respect of any perceived bias.

Arbitrators are most often prominent and skilled international lawyers, academics and retired judges. As it happens, the community of international investment arbitrators is replete with New Zealanders, such as Sir Kenneth Keith QC, David AR Williams QC and Professor Campbell McLachlan QC. Investment arbitrations are seated in a third state (not the state of the investor or the respondent state) for reasons of neutrality as well. This ensures that the courts that supervise the arbitration are not those of a state involved in the dispute. Although it is true that hearing a dispute in a foreign country compromises transparency to some extent, technology is alleviating this issue: arbitral hearings can be (and sometimes are) streamed live online.

In our view, the authors of the TPPA’s investment section were alive to the legitimate criticisms of investor-state arbitration and have produced a procedural process that addresses many of the most trenchant criticisms of international investment treaty arbitration.

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But: beware the back door The TPPA is not perfect but it is a progressive and complex agreement that represents an important step forward for investorstate dispute resolution.

Investment treaties, such as the TPPA, involve a fine balance, On the one hand, states are naturally concerned to limit their exposure to legal action by investors from other contracting states. On the other, investor protections and the ISDS procedures ought to encourage foreign investment in a state while also providing a reasonable degree of protection for a state’s nationals investing in other member states.

It cannot be forgotten that treaty protections benefit New Zealand investors doing business in the other member states. If the protections are too flimsy, they will have little effect in encouraging the movement of capital between jurisdictions.

A note of caution, though, for New Zealand and other member states: it is time to revisit historical investment treaties. The TPPA is an advanced agreement, particularly when compared to earlier investment treaties signed by New Zealand and other member states. Often those earlier treaties are less prescriptive as to the state’s right to regulate, and provide wider ranging investor protections. New Zealand and Australia’s investment treaties with Hong Kong, signed over 20 years ago, are classic examples.

Investors may gravitate to the cover of these earlier treaties by routing an investment through a vehicle in the relevant jurisdiction. Alternatively, the antidiscrimination provisions of the TPPA may be engaged by the more favourable (from an investor’s perspective) investment standards in earlier investment treaties.

This situation emphasises the need for New Zealand (and other member states) to ensure its suite of investment treaties contain homogenous protections and procedures. A strong front door is only as good as the lock on the back door.

Simon Foote is a barrister at Bankside Chambers specialising in commercial litigation and arbitration. Simon has appeared as counsel in investment treaty and commercial arbitrations and presented on investment treaty issues at World Bar and AMINZ conferences.

Samuel Jeffs is a law clerk at Bankside Chambers, specialising in commercial and international law. Working with David AR Williams QC, Sam has been exposed to a number of investor-state arbitrations.

On-Line Courts in Civil Proceedings

By David Harvey* Richard Susskind’s books “The End of Lawyers”, “Tomorrows Lawyers” and “The Future of the Professions” present challenging and disruptive ideas. To some readers, lawyers in particular, his books are either a signpost to the future or ideas whose time should never come.

In February 2015 Susskind led an Advisory Group that produced a report entitled “Online Dispute Resolution for Low Value Civil Claims.”1 In brief what it proposed was that there would be a special branch of the Court system that would take an innovative approach to civil claims of less than between £25,000. Technology would play a significant part.

One of the radical suggestions in the Susskind Report was directed to the emphasis that is currently placed on the court hearing. The focus of a proceeding is to get a case to a hearing and a disproportionate amount of resources are targeted towards this objective. Under the Susskind proposals the Court remains a forum for civil dispute hearings but a hearing is not the ultimate goal rather it is seen as a last resort.

Lord Justice Richards cogently summarised the Civil Justice Council proposals in his speech “Civil Litigation: Should the Rules be Simpler?” of 25 June 2015 at Gresham College.2 “[The Report] proposed a fundamental change in the way the court system handles low value civil claims, by the introduction of an internet-based service known as Her Majesty’s Online Court. The idea is a service with a three-tier structure. The first tier is that of online evaluation, involving a suite of online systems to guide users who think they may have legal problem and to help them if possible to avoid a dispute. The second tier applies where a dispute has arisen and involves trained facilitators working online to review papers and statements from the parties, using a mix of alternative dispute resolution and advisory techniques to try to get an agreed settlement. Only if that fails are judges brought into play at the third tier, for judicial dispute resolution, deciding suitable cases online, largely on the basis of papers submitted to them electronically, within a structured system of online pleading and argument.”

Tier One is based on the suggestion that rather than start a dispute with the assumption “I must go to court” the query should be “What steps should I take – what options are available?” The means by which that query is carried out and developed is online using intelligent systems.

If the litigant decides to go further, Tier Two comes into play. The objective at this stage is to resolve the matter by negotiation, mediation and dispute resolution – once again carried out online. This is characterised as “dispute containment.” It is actively led by facilitators in an inquisitorial rather than an adversarial manner. The approach is based partly on the work of adjudicators who work in the English Financial Ombudsman Service. They manage on average to dispose of 90% of the service’s workload, so that only 10% of cases reach the Ombudsmen. The use of Tier Two would incur a modest court fee.

Tier Three involves a recognisable court hearing before a judge, but which would still be conducted online.

Professor Susskind observes: “Online judges will be full-time and part-time members of the Judiciary, who decide suitable cases (or parts of cases) on an online basis, largely on the basis of papers submitted to them electronically, as part of a structured but still adversarial system of online pleading and argument. This process will again be supported, where necessary, by telephone conferencing facilities. The decisions of online judges will be binding and enforceable, enjoying the same status as decisions made by judges in traditional courtrooms. A court fee will be payable but much lower than in today’s courts. Aside from making judicial services available at a lower cost, this will provide a new, more flexible career option for the Judiciary”.

The whole process is based on the use of communications technology and intelligent systems to assist litigants to make informed decisions about where their claim is going to go and the options that are available. Informed choices can be made at Tiers One and Two where the litigant is in control of the process.

Shortly after Professor Susskind’s report was released, another report by the JUSTICE Group3 built on Professor Susskind’s proposals in three ways. First, it was considered that the scope of the dispute resolution model could extend to most first instance proceedings across the civil courts and tribunals without a monetary amount limiting jurisdiction. Professor Susskind’s ODR proposal

https://www.judiciary.gov.uk/reviews/online-dispute-resolution/ (last accessed 16 August 2016) http://www.gresham.ac.uk/lectures-and-events/civil-litigation-should-the-rules-be-simpler (last accessed 20 March 2016) 3 JUSTICE “Delivering Justice in an Age of Austerity” (April 2015) http://2bquk8cdew6192tsu41lay8t.wpengine.netdna-cdn.com/wp-content/uploads/2015/04/ JUSTICE-working-party-report-Delivering-Justice-in-an-Age-of-Austerity.pdf (Last accessed 16 August 2016) 1 2

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was restricted to certain civil claims up to a certain value.

capable of being understood both by opponents and by the court.

Secondly, the JUSTICE model further refined and clarified the scope of online facilitation and online adjudication.

Online help would be provided at every stage in the process of completing the requisite online documents, as well as to provide simple commoditised online advice as to the bare essentials of the relevant law. “Commoditised advice” is a description of the basic legal principles applicable to the litigant’s dispute, rather than bespoke advice based up the particular facts of the dispute.

Thirdly the JUSTICE proposal considered an integrated online and telephone platform offering a first port of call for individuals with potential legal problems and offering information, advice and assistance as the case proceeded.

These two reports set the scene for the Civil Courts Structure Review commissioned by the Lord Chief Justice and the Master of the Rolls in July 2015. It had broad terms of reference which encompassed a largely structural review of the way in which the State provided services for the resolution of civil disputes. Lord Justice Briggs delivered an Interim Report in December 20154 and moved to the next stage of his examination after the receipt of submissions and feedback in April 2016. His final report was delivered late in July 2016.

In his December Report Lord Justice Briggs in the main adopted the suggestions contained in both the Susskind report (the ODR Report) and the JUSTICE paper. Both reports noted the precedents set for an Online Court (OC) or tribunal of broadly this kind already in use for family and consumer disputes in the Netherlands, and which has now been deployed for small claims in British Columbia.5 The proposed OC would initially be limited to low value debt and damages claims and would achieve its purposes as far as possible by automated software, both for initial triage and basic conciliation, but disputes not thereby resolved would receive human attention both from Case Officers and, for final determination, from judges.

Recognising that there is a substantial section of civil court users who would find it difficult or even impossible to conduct civil litigation through computers process design would ensure that users suffer no impairment in their access to justice by the proposed digitisation of courts, by providing them with the requisite assistance – a process known as the “Assisted Digital Service”. Forms of assistance currently being considered include online help, telephone help-lines and face to face human help.

The electronic file so created would be available from the outset to both parties including the issues involved and the documents relied on. This contrasts with the present system where small claims cases are characterised by an absence of evidence or coherent bundles of documents until the very day of the trial.

The second tier would be that of compulsory conciliation.

Lord Justice Briggs observed that in the past mediation or the use of other forms of dispute resolution had been optional and at the choice of the parties. In such cases there may have been a recognition that to go to trial might be uneconomical or unduly disruptive – thus a desire to explore ways and means of resolution of the dispute.

Although lawyers are aware of alternative means of case resolution, it has not been a part of the formal Court process and from a cultural standpoint, especially from the lawyer’s perspective, the focus has been upon getting the case to a hearing. Thus a culture shift would be required to ensure acceptance of compulsory conciliation and evaluation of the claim as a part of the process.

The third tier is that of the trial and is seen as a last resort.

Alternative trial methods could include resolution on the papers or a hearing by teleconference or videoconference.

These alternative means of resolving the matter may not be practical in cases that involve complex evidential admissibility of presentation issues, although it should be noted that with digital systems there seems to be no real

Adopting a similar process to that suggested by Professor Susskind a proceeding would potentially go through three tiers.

The first tier is described as case triage. The OC software would guide the litigant through an analysis of his or her grievance in such a way as to produce a document Lord Justice Briggs Civil Courts Structure Review: Interim Report December 2015 https://www.judiciary.gov.uk/civil-courts-structure-review/civil-courtsstructure-review-ccsr-interim-report-published/ (last accessed 16 August 2016) 5 Ibid. Para 4.11. For the British Columbia model see https://www.civilresolutionbc.ca/ (last accessed 16 August 2016). For another online process in British Columbia that is rich in litigant help material see http://www.smallclaimsbc.ca/ (last accessed 16 August 2016) 4

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reason why these issues could not be resolved by the deployment of software which could make this evidence available remotely.

A face-to-face trial may be more confined to addressing specific issues or where live evidence or cross-examination may be required. This presupposes that physical presence is of greater significance in fact determination than remote testimony and cross-examination. Once again this seems to be a cultural issue together with concerns about the “dehumanising” effect of technology and the importance of “presence”.

The Millennials who will inherit our creaking justice system with its rules devised in an earlier communications paradigm receive their information from and communicate by screen-based hand held devices. An OC will not be alien to them. Rather it will be an expectation. The association of “presence” with the assessment of “demeanour” and credibility has been eloquently dismissed by Robert Fisher QC in his excellent article on the fallacy of demeanour.6 Lord Justice Briggs suggests that the trial phase will be less adversarial and more investigative. Judges will receive little or no assistance in the law from the parties. Thus judges may require deeper training and more frequently than they receive at present in the law relevant to the cases that the OC will hear.

In his July 2016 Final Report7 Lord Justice Briggs took into account some of the fairly trenchant criticism of his proposals that had come from the Bar. Lord Justice Briggs observed that “General reactions have ranged from straight condemnation: “it will just be an expensive disaster” (from the Young Bar) to the warmest of welcomes: “I am the happiest man in England” (from Prof Richard Susskind), with every shade of approval, scepticism and disapproval in between.”

However, most of the feedback about the Online Court was firmly supportive of the essential concept of a new, more investigative court designed for navigation without lawyers. Lord Justice Briggs observed that the underlying rationale was that whereas the traditional courts are only truly accessible by, and intelligible to, lawyers, the new court should as far as possible be equally accessible to both lawyers and litigants in person.

In essence the proposals originally made by Lord Justice Briggs remained in place. One thing that did change was the name “On Line Court” which Lord Justice Briggs considered unfortunate. He preferred the name “Online Solutions Court” and would tell would-be users where the new court is to be found and accessed. And it would be a part of Her Majesty’s Courts.

Digital systems allow us to innovate. There seems to be little point in merely imitating our current model with all of its faults and failings. New technologies present opportunities for us to revisit the old ways of doing things, challenging them and endeavouring to see how they can be improved or completely worked over. Technology, of course is a tool and a servant that enables. Likewise the Justice system is the servant of the people to which citizens should have unimpeded access. Perhaps on-line Courts could provide a future model for such access. * David Harvey is a former District Court Judge and the Director of the New Zealand Centre for ICT Law within the Faculty of Law at the University of Auckland. He is the author of the well-known text on technology and the law, internet.law.nz – Selected Issues (LexisNexis, NZ, 4th ed). Contact Mr Harvey at dj.harvey@auckland.ac.nz. www.law.auckland.ac.nz/ICT

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Robert Fisher QC “The Demeanour Fallacy” [2014] NZ Law Review 575 at 582. See also Chris Gallavin “Demeanour Evidence as the backbone of the adversarial process”LawTalk Issue 837 14 March 2014.

7 https://www.judiciary.gov.uk/wp-content/uploads/2016/07/civil-courts-structure-review-final-report-jul-16-final-1.pdf (last accessed 15 August 2016) 6

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Final Judicial Observations

By Hon. Justice Lyn Stevens The following remarks were made by Justice Stevens at his final sitting. The NZBA considers that they should be reported to the membership in their entirety.

By way of final judicial observations, I wish to advance three short propositions.

They are inter-related; they link broadly to the topic of access to justice. The ability to access a public justice system really matters – for litigants, for their counsel and for all those who work in the Courts. Having disputes resolved fairly, at reasonable cost and promptly are legitimate goals of an effective justice system.

The Courts in recent years have seen a dramatic growth in lay or self-represented litigants. The reasons for this are complex. One concerns the cost of legal services. In some quarters, sadly, pro bono work is discouraged. Another reason is the continuing pressure on the Civil Legal Aid Scheme. Some lay litigants prefer to be unrepresented: they have a dislike of lawyers and have no wish to retain one. Then there are the querulants who enjoy litigating, heap procedural complexity on procedural complexity and cannot wait for their case to come to Court.

The trend of increasing numbers of self-represented litigants was apparent in the High Court some five or six years ago. The Rules Committee endeavoured to obtain an accurate assessment of how prevalent selfrepresentation was. In civil cases it was thought then it might be a high as 10 per cent. Attempts by the Rules Committee to introduce new provisions in the High Court Rules requiring self-represented litigants to comply with the Rules foundered. Perhaps the time is right to revisit such an initiative, as the numbers now are even higher.

My colleague, Justice Winkelmann, speaking extrajudicially in the 2014 Ethel Benjamin Address spoke on the topic of “Access to Justice – Who Needs Lawyers?”

The statistics she quoted were revealing.16 These pressures are inevitably felt in this Court. Since 2010 there has been a rapid increase in applications by unrepresented litigants for reviews of the Registrar’s decisions, recall of judgments and the like. This has caused a substantial increase in the administrative workload of Registry staff and the judicial members of this Court. In the case of unrepresented litigants, there is often a complete absence of objectivity or judgment. And there is no counsel to filter cases that would be an abuse of judicial resources.

Ten years ago, the litigant would be told by their counsel: “Your appeal is unmeritorious. Appeal if you wish but you

will be charged a lot for the privilege”. There, typically, unmeritorious appeals would have ended.

This leads me to my first proposition – it is time to review the jurisdiction, both criminal and civil, of this Court. Any such review will inevitably have a flow on affect to other jurisdictions, particularly the High Court. If such a review takes place, all possibilities need to be on the table. A thorough consideration and recommendations are needed. At the forefront of available options there needs to be an enhanced leave mechanism.

The second proposition concerns the Class Actions Bill and associated draft Rules prepared by the Rules Committee working with Dr Don Mathieson as a Parliamentary draughtsman. Class actions enable costs to be shared where there is a common issue.

Class actions facilitate access to justice by many who cannot afford the costs. The learned President, writing extra-judicially, referred to the current Rules as being “antediluvian” and Justice Miller has spoken, also extrajudicially, on a number of occasions urging reform. The current High Court Rules are essentially a vacuum in which my colleague Justice French was forced to struggle during the interlocutory phases of Houghton v Sanders, better known as the Feltex case.

Such a measure will enhance access to justice at a time when we are seeing a marked growth in litigation funders.17 There is a draft Bill ready and waiting. The necessary Rules are drafted. What is now needed is some legislative time.

It is to be hoped that the busy legislative calendar can be freed up to accommodate this important reform.

Which leads to the third proposition. The Auckland or northern region produces over 70 per cent of the caseload (criminal and civil) of this Court. At present this Court sits in its criminal appeal or civil appeal division in Auckland for approximately 22 weeks per year. The Court of Appeal, however, rarely sits as a permanent Court in Auckland, despite five of our number having close links to Auckland City.

I am sure that the Bar and many of their clients would appreciate it if this Court could see its way to sit more often as a permanent Court in Auckland. And perhaps in enhanced accommodation. I had hoped that that might be the case when I was appointed in 2010 but so far it has not happened.

16 In 2014, 13 out of 60 civil applications for leave to appeal to the Supreme Court were filed by unrepresented litigants. Some 56 out of 228 active civil files in the Court of Appeal involved unrepresented litigants. In the High Court Registry alone 40 per cent of judicial review cases and 30 per cent of appeals involved one or more unrepresented litigants.

17 A topic discussed in “Power of the Collective-Group Actions and Litigation Funding in New Zealand” Law Talk, 15 July 2016, Issue 892.

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Final Sitting - Justice Stevens

By Jacqui Thompson The final sitting for the Hon. Justice Lyn Stevens was held at the Court of Appeal on 5 August 2016, only one week shy of ten years after he was appointed to the Bench as a High Court Judge.

Prior to this, His Honour’s career included 36 years in litigation, including partnerships in Meredith Connell, and from 1980 to 1992, in Russell McVeagh. His Honour then went to the independent Bar and took Silk in 1997. After four years on the High Court Bench, he was appointed to the Court of Appeal in 2010.

Justice Stevens’ retirement was an opportunity for his colleagues to reflect on a remarkable career which has made a significant contribution to New Zealand’s jurisprudence.

The Three Cs The President of the Court of Appeal, the Hon Justice Kós, concentrated on “the three Cs” in Justice Stevens’ career. The first of these was character. Justice Kós noted that ego had no part to play and throughout his time on the Bench, Justice Stevens had sought to express the law fairly and clearly.

Justice Kós also drew attention to the fact that the Judge was known for his calm (unless confronted with injustice) and for being a gentleman: “Courtesy, decency and probity are important to you. They dominate your character.” The President of the New Zealand Law Society, Ms Kathryn Beck, echoed these comments in saying that His Honour’s “...unruffled attitude to problems and attacks that would have broken many others” is legendary. She said that he is always a gentleman and someone to be held as a model of how a member of the profession should behave.

Another feature noted was Justice Stevens’ judicial craft which was described as neat, precise, clear and unfussy.

His style was “judgment-writing for the decade, not the moment”. This was reflected in the second “C” – his cases, which demonstrated clear thinking, breadth of experience and hard work ethic.

Justice Kós noted that the final “C” related to Justice Steven’s wife, Corry. The retirement was in effect a double retirement and thanks were given for Mrs Steven’s kindness and hospitality.

An ongoing Education Justice Stevens attended Auckland Boys Grammar School from 1960 to 1964, and he was a prefect at the same time as Andrew Brown QC and Stephen Anderson.

Later they were to reunite at Bankside Chambers, causing

one of its tenants to remark that it was almost like being at school again. His Honour became an Augusta Fellow in 2009 and he and his wife continue to support both the School and the Augusta Fellowship, noting the importance of maintaining the high standards of the School in teaching and learning, and a range of cocurricular activities. So far the school has educated three generations of His Honour’s family including his father, Sir Laurence Stevens, and sons Tim (now in the New Zealand Police) and Matt (a teacher in the English Faculty at Kassel University in Germany).

The Judge then studied at the University of Auckland and his time must have been well spent - the catalogue at the University notes a dissertation written in 1970 on Negligent misstatements causing financial loss. The Judge subsequently studied overseas at Oxford and in Canada. A long-time colleague, Mr Graeme Little SC, remembers that His Honour arrived back in New Zealand with a head start in Intellectual Property law and excited about the implications of the American Cyanamid Co v Ethicon Ltd case.

During Justice Stevens’ final sitting, the President of the New Zealand Bar Association, Mr Clive Elliott QC, referred to His Honour’s expertise in IP matters. Noting two IP two cases on which His Honour had sat, Mr Elliott commented on the fact that the Judge was extremely well prepared and able to engage with and challenge counsel on an informed basis. This is, Mr Elliott noted, an important part of the judicial function.

The Judge has remained associated with the University, having been elected as a Council member from 1999 to 2011 and serving as Pro Chancellor from 2001 – 2003. He has lectured at the Law School at various times and in the words of the then Dean of the Law School, contributed greatly to the establishment of the New Zealand Centre for Human Rights Law, Policy and Practice at the Auckland Law School.

A Little and a Wild at the start and a Little and a Wild at the end Justice Stevens noted that there was “special symmetry involving some of those present” at the sitting. He noted Mr Little, who was seated at the Inner Bar and Hon. Justice Wild, who was seated alongside him on the Bench. His first experience of the High Court in 1974 was appearing as Mr Little’s junior in a case involving specific performance of an agreement for sale and purchase. They acted for the vendors who, following a medical disaster, wished to resile from the agreement. Sir Richard Wild CJ refused to follow Lord Denning MR’s views on the discretion afforded by equity to do what was fair and just and instead insisted that parties should keep their bargains.

Commenting on this experience, Stevens J noted that this was not an auspicious start to his career. He said: “Some 38 years later Sir Richard’s son, John, became

17

my colleague on this Court. He is on the Bench today. So there was a Little and a Wild at the start and a Little and a Wild at the end and ...an awful lot in between”.

In his time at Meredith Connell, Justice Stevens prosecuted what probably was the first serial rape case in New Zealand. The presiding Judge was not known for being gentle with counsel. In his closing address, Justice Stevens turned to the jury and told them that they could re-read the evidence in the jury room. At this point the presiding Judge thundered from the Bench “No Mr Stevens, they will not; they are my notes and not for the jury!” while the jury looked on in bewilderment. Opposing counsel (Mr Little) remembers this case as being fraught with difficulties but commented that throughout and notwithstanding judicial displeasure towards both sides, Justice Stevens was a fair and courteous opposing counsel. The provision of the notes of evidence to juries has since become the norm.

Sage Advice As a lawyer, Justice Stevens was known for his acute insight and understanding. In 2000 he was engaged to advise the University of Canterbury Working Party that was established to enquire into how a Master of Arts (with First Class Honours) was awarded by the University in 1993 on the basis of a thesis dealing with holocaust revisionism. The report praised the opinions provided, saying: “Mr Stevens’ principal opinion ... and its Appendices are notable for their breadth of legal scholarship and the selection of cases from other common law jurisdictions on a rarely-encountered situation ... it is conceivable that this report may be of general interest to all Universities in New Zealand...”

Yet later in the report when those who participated were thanked, only three people were singled out for special mention; Mr Lyn Stevens QC for his sage legal advice, and Ms Diana Herring and Ms Daphne Robinson, who provided very efficient secretarial services.

His Honour’s academic insight was carried over into his extra judicial writings which spanned contributions to land law and competition law texts through to a range of seminars and conferences. He also made significant contributions on the international stage. He was New Zealand’s representative at the International Bar Association and was one of the organisers (together with Mr Elliott) of the 2004 IBA annual conference, which was held in New Zealand.

Enthusiasm and advocacy Justice Stevens is known by his colleagues to be charming, personable and enthusiastic about the law.

This enthusiasm was clearly seen by those who were fortunate to attend his presentations. In 2014 he taught at the New Zealand Bar Association’s Appellate Advocacy Workshop, at the end of the World Bar Conference in Queenstown (7 September 2014). In his presentation on what he wryly termed “the scintillating topic of the Critical Importance of Notice of Appeal”, the Judge noted that he was passionate about advocacy. He demonstrated this

18

by his support for this inaugural workshop.

His Honour was instrumental in drawing the Workshop and its Faculty together, giving generously of his time on a Sunday afternoon to deal with problems, notwithstanding he was enjoying the company of his young granddaughter who had shortly before arrived with her parents from Germany.

In this same address, His Honour talked about the need for engagement with the Court. He made the point that the Notice of Appeal was the first chance that an advocate had to engage the Judge(s) and he stressed the importance of this. The Notice would, the Judge said, make an initial impression for better or worse.

The Judge also emphasised that is highly desirable to consider whether you do have a worthwhile argument on appeal before you file a notice on appeal, rather than afterwards. In deciding whether to appeal or not, the Judge suggested: “Ask yourself: is it the harsh reality that the judgment exposes your first instance argument as wrong? Or has the judge taken a different but equally – or more – available view or approach? If yes, you should advise against an appeal.”

On the topic of engagement, the Judge in his address told the story of attending a major conference in Australia, where the keynote speaker presented an outstanding paper on advocacy and the skills involved.

Aware that he was later that year participating in the NZBA Appellate Advocacy Workshop, Justice Stevens decided to pay close attention. The keynote speaker spoke for 50 minutes, at the end of which a colleague turned to Justice Stevens and asked “Did you notice that for the whole 50 minutes, he read his paper and didn’t look up once?”

The point, Justice Stevens said, was that there was a message and the paper was outstanding. But in terms of an exercise in advocacy, it was a complete flop, because there was no engagement with the audience. There was nothing coming from the speaker to those who were listening.

Running and Racing Justice Stevens shows great commitment to whatever he does. Mr Little remembers that some years ago, every morning at 6 am Justice Stevens would arrive and knock at his front door. Together with their colleague, Sir David Baragwanath, they would run from Mission Bay, up along St Heliers Bay Rd, through to Achilles Point at the top of St Heliers and then back down to Mission Bay, before they separated to start the day in Court.

There were days, Mr Little said, when he would lie in bed and listen to the rain at 5am, and Graeme’s wife, Vicki, would say to him “Surely Lyn won’t come today!” But at 6am the inevitable knock on the door would be heard, come rain or hail. To add insult to injury, the only time Mr Little actually beat Justice Stevens in the final sprint to Mr Little’s own front door was a short lived triumph, as it

turned out that the Judge was (unbeknownst to anyone) seriously unwell at the time.

Two other interests of the Judge would seem, to some, as coming from opposite ends of the spectrum. The Judge is a former Chairman of the Auckland Racing Club. He served the Club as a board member between 1995 and 2006 and, as part of a group known as the Millennium Syndicate, raced a number of successful gallopers. But he also has given (and continues to give) service as the Chancellor of the Anglican Church of Melanesia Church (among other areas in the Church). While some would say this was going from sinner to saint, or possibly even having a bob each way, the Judge has again managed to nicely balance the activities and even combine them.

During a race day for his local St Philips Church, His Honour proudly announced that the Bishop had won $250 on the winner! This service is continued by the Judge’s daughter, Sarah, who is an Anglican Priest serving in the Bay of Islands.

What now?

It has been suggested that Justice Stevens has announced that when he retires from the Bench, he may also retire from the law. He and his wife Corry are proud grandparents to the young offspring of their two sons and their daughter and no doubt their focus will be on their family. However, the NZBA sincerely hopes to tempt the Judge to participate in its training for the new generation of lawyers who do not always have the advantages that the Judge himself had of learning in Court on his feet. We look forward to seeing him often in the future.

The NZBA extends its congratulations to the Judge on his retirement. * Jacqui Thompson is a member of the editorial committee of At the Bar and the NZBA’s Training Director.

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By Brian Eardley-Wilmot* Clients often know they have a problem but are reluctant to proceed until they are quite sure – CheckIT, a new investigation tool, can quickly uncover any issues for them Computer Forensics has developed a exploratory tool to help barristers determine if a client’s data has been stolen, or if their computers have been involved in an illegal or unacceptable activity. Computer Forensics’ MD, Brian Eardley-Wilmot, says the tool, called CheckIT©, can quickly determine if the computers need to be fully examined to support a court case.

“The CheckIT process helps with this. It involves getting a brief from the client regarding what they think is happening. We then perform an exploratory examination on the hard disk concerned, then we come back with indicative information that essentially says ‘Yes, you’re right and you should move to a full investigation,’ or ‘No, there isn’t a problem’, as the case may be.

“People’s instincts are usually correct when they sense a problem, but managers are still often loathe to undertake a full investigation because of the cost,” says EardleyWilmot.

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Eardley-Wilmot says there are four key areas where CheckIT can be used – to both reveal and deter cybercrime: • When a key employee resigns and there are concerns; • When incontestable evidence of misconduct is needed; • When an employee is specifically suspected of wrongdoing;

19

• Running a random audit of computers and mobile devices can discourage cybercrime.

CheckIT sets in train the process of collecting evidence that can stand up in court.

Eardley-Wilmot gave the example of one such recent case. A company director had a nagging suspicion something was not quite right after a key staff member left. He had been with the company for many years and left amid many good wishes.

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Company data had also been stolen.”

Undertaking a full investigation “CheckIT also involves the creation of a forensically sound construct (clone) of any hard disk associated with a particular user. This means that a full forensic investigation can be commenced immediately the decision is made to commence a formal forensic investigation. It contains every bit of information on the original disk – including any deletions,” says EardleyWilmot.

way, to ensure any evidence will stand up in Court.”

Eardley-Wilmot described CheckIT as “a valuable, prudent tool lawyers can use to help clients confront their suspicions and satisfy themselves they are correct before undertaking a full investigation. It is a significant advance in the fight against cybercrime.”

Cybercrime is defined as any illegal activity using a computer or data storage device. It includes the theft of intellectual property, as well as the misuse of company computers for other illegal purposes. Cybercrime is a major and growing issue in New Zealand, says EardleyWilmot – particularly the theft of intellectual property. Over 108 cybercrime attacks are now reported daily in New Zealand, according to the latest Symantec Security Threat Report. * Brian Eardley-Wilmot is a well-known name in the IT industry.

In 1999 he established Computer Forensics NZ Limited (CFNZ) [www.data-recovery.co.nz], to provide data recovery and allied paralegal services. The company CFNZ is New Zealand’s only company dedicated solely to the science of data recovery for both commercial data recovery and paralegal purposes throughout Australasia and the South Pacific. For more information, contact: Brian Eardley-Wilmot, T: 64 (09) 3599424, M: 64 (0) 21 4545 00 or email: brian@datarecovery.co.nz

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Bench and Bar Dinner Wellington, 27 July 2016

Chris Gudsell QC and Mary Scholtens QC

Clive Elliott QC, Hon Justice Stephen KĂłs and Phil Greenwood SC

Liesle Theron and David Goddard QC

Matthew Smith and Kristina Muller

Nick Whittington and Fionnghuala Cuncannon

Nicolette Levy, Ian Gordon, Lisa Hansen and Judge Barbara Morris

Rachael Schmidt-McCleave and Debra Angus

Hon Justice Ellen France, Hon Justice Simon France, Chris Gudsell QC and Paul Radich QC

Victoria Casey QC and Greg Arthur

Matthew McClelland QC, Una Jagose QC and Mark O’Brien QC

Hon Justice Geoffrey Venning, Les Taylor QC and Gareth Richards

Bryan Gundersen, Hon Justice Terence Arnold and James Every-Palmer

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The Experience of Mindfulness

By Geoff Mercer In the second of a two part series on Mindfulness, Geoff Mercer describes the effects of mindfulness on individuals in their everyday lives and describes three case studies.

The benefits of Mindfulness are numerous and have been catalogued extensively. They range from the particular, such as measurable reductions in stress hormones, to the general, such as Daniel Goleman’s belief that focus is inextricably linked to excellence.

Key components of mindfulness are an understanding of how your brain works and a regular meditation practice.

The science around this is growing. In August this year, a newspaper reported a study which measured the brain activity of 27 Tibetan Buddhist monks meditating, in comparison to those at rest. The scientists recorded that when meditating, even though they were sitting quietly “their brain [was] essentially lit up like a Christmas tree.1 The monks showed increased signs of focus, relaxation and synchronisation in the brain.

Another study from Germany scanned the brains of 50 American men and women who regularly meditated and 50 non-meditators and suggested that regular meditation sessions could “knock” seven and a half years off the middle-aged brain.2 Yet another found that ten minute sessions of mindfulness, three times a day, reversed the degradation in concentration common in media multitaskers.

This information, however, does not always answer the question of how Mindfulness might benefit you right now in your day to day life and work. To help answer this question here are some case studies. The names are fictional and they represent a distillation of the feedback and experiences of people who have participated in Mindfulness courses.

Susan Susan is an in-house lawyer working for a large corporation. Her advice is valued and respected by her colleagues and she is in a senior 1 2

position. She runs meetings and seminars and gives papers at the occasional conference. Although her life is quite busy, and she has a good social life, she does not feel fully satisfied, though she doesn’t quite know why.

Despite her success, she often feels a bit of a fraud, as if someone will one day stand up at one of her seminars and say that she doesn’t know what she is talking about and that they don’t know how she got her job. She realises this isn’t rational, but this feeling is always lurking.

When her firm offered a Mindfulness programme, Susan volunteered. She doesn’t really do the ‘group’ thing but was assured that she wouldn’t have to share anything personal. She found the information about the brain and how our minds work really interesting, something she wants to look into more.

At first she was a little self-conscious but that changed pretty quickly as she felt more relaxed and calm. She has started practicing on her own time. It doesn’t take long and really helps her recharge. She is amazed at how she can now see the whole ‘fraud’ thing as something she has created in her mind. It bothers her less and she is confident it will go away altogether.

As to feeling something is missing, that is still there but her perspective has changed and, instead of feeling despondent about it, she now feels quietly excited that, now she is getting to know herself better, it will lead to something new and interesting.

James James has been a lawyer for many years. If you asked him he would say he likes being a lawyer. He likes the intellectual challenge, the problem solving, dealing with clients and finding out about different aspects of life.

He also likes the respect he seems to get when people find out what he does (despite the lawyer jokes) and he certainly likes the income. Colleagues appreciate him and he seems pretty easy going.

James tends to get quite caught up in his work and can often be late home. He tries to spend weekends doing things with the kids but, although he would deny it, he is often just going through the motions.

Everest trek reveals scientific effects of meditation, NZ Herald, 4 August 2016, http://www.nzherald.co.nz/world/news/article.cfm?c_id=2&objectid=11687447 Meditation can knock 7 years off age of your brain, NZ Herald, 25 April 2016, http://www.nzherald.co.nz/lifestyle/news/article.cfm?c_id=6&objectid=11627617

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James’s partner encouraged him to do a Mindfulness course as she remembers his bouts of depression when they were younger and he doesn’t seem happy to her.

the act of learning about our minds can itself have a significant effect on our abilities. As Dr David Rock, author and director of the NeuroLeadership Institute, says:

The first thing James noticed about the course was that he was doing something for himself. He sometimes bikes or goes to the gym but he felt this course was really about him, more so than these other activities. Before the course he believed that how he thought, felt and reacted were just the way things were. Now he knows that he can control and change these things.

“Teaching people about their brain has a profound effect on their ability to understand themselves and to understand others. It makes them far more effective at whatever they want to achieve.”

James has also realised that he is often ‘not home’ mentally and had really been missing out on the lives of his kids and partner, as well on other aspects of his own life. He has worked on changing this and now feels more alive. He has noticed that colleagues and clients are more responsive to him, as he is more present and authentic when he is with them. He is also taking less medication for the headaches he sometimes gets.

Mary Mary has been under a bit of stress lately. Work is not really a problem but things have not been going well with her family. Her parents are getting older and her father is requiring quite a bit of care and so, against his wishes, they have found him a place in a rest home. Now Mary is also worried about her mother living alone.

Mary also thinks that her husband gets depressed, though he won’t admit it. The first thing on his mind when he comes home is a drink and he spends a lot of the weekend either in bed or just watching TV or on his iPad. Mary herself is having trouble sleeping and she spends a lot of her time worrying.

After taking a Mindfulness course, the facts of Mary’s life have not changed dramatically. Her parents are still an issue and her husband still drinks and mopes.

However, she feels different. The problems and stress that previously felt overwhelming now seem manageable.

She is getting to grips with the idea that she is in control of how stressed she gets.

Another common experience is that practicing Mindfulness makes people feel more in control of their reactions and emotional responses and therefore less overwhelmed by the difficulties in their lives. Mindfulness itself doesn’t solve problems, but it does help you tackle the problems more easily and with less negative consequences or collateral damage.

Training the Mind As lawyers our primary tool is our mind and yet we are not trained to understand how it really works or to be aware of the many internal and external influences that shape our thinking and behaviour. Intelligence and rational, logical thought processes are essential for good legal work but success in the law depends on much more than these.

This is where Mindfulness can assist.

A frequent response from people who practice Mindfulness, and from those around them, is that their practice leads them to being more content and a ‘better person’. This is perhaps the Trojan Horse of Mindfulness practice.

That, while seeking to improve our productivity, expertise and performance, we also become more thoughtful, understanding and, above all else, happier people. * For more information contact Geoff Mercer, lawyer and Mindfulness trainer at The Now Project. He provides training to professionals and businesses through training sessions, workshops and in-house programmes. www.thenowproject.nz

Mary has been keeping up her short morning meditations (well, most of the time) and she nearly always feels better afterwards. This has given her more energy and her social life has improved. Just coffee with friends and the occasional walk, but that is more than she managed before. The other morning, she actually felt genuinely happy for no apparent reason at all. That hadn’t happened in a long time.

Common themes These studies reflect common themes in feedback from Mindfulness courses. People are often intrigued and excited by learning how their minds work, the role their emotions play in their lives, and the possibility of changing the patterns of thought and behaviour that do not serve them well. It may seem surprising, but just

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Parenting Under Pressure - How to Win at Home and at Work

By Yvonne Godfrey* Yvonne Godfrey is the author of a book on parenting of young adults and speaks at schools and conferences and as well as providing family coaching. In this article, she discusses how parents can survive this period while still helping their teens make a successful transition into adulthood.

A woman and her 17 year-old son had been fighting for days.

What started off as something fairly insignificant had escalated into all out war! She was telling him he was useless and he was calling her Hitler in a skirt.

Exasperated, the boy retaliated one last time, “If I’m that bad, why did you have me?”

Catching his mother off guard, she replied, “Well, we didn’t know it was going to be YOU! We were hoping for someone with a job.”

As absurd as that story is, it’s actually quite true. Kids don’t ask to be born and parents don’t know what they are going to get, or how they are going to cope as parents. Throw in a high-pressure job and it’s easy to see just how many parents are asking that big question, “Can I really have it all? Can I have a big job and still be a good parent?”

We all have limited personal resources – time, physical energy and emotional capacity being at the top of the list when it comes to spreading oneself between career and family. Here are some of the principles I have found helpful to create family harmony and well-adjusted children and parents.

Love Intentionally (not just emotionally) While parents naturally love their children with great emotion, this kind of love can be a real roller coaster and puts huge pressure on relationships. When things are going well, everyone feels good. But when there is conflict or disappointment, emotional love can quickly be exchanged for feelings of rejection, bitterness and even abandonment.

Intentional love starts with the end in mind and looks to the future. Intentional parenting is concerned with what kind of adult you want your child to become and sets about instilling the skills and character consistent with the vision. Therefore, parenting becomes much more consistent with clear objectives. Children need a good balance of both emotional love and intentional love to feel secure and loved.

Beware of substituting money for time Intentional love doesn’t become seduced or distracted by what is convenient, easy or popular. Watch out for parenting that substitutes money for time. Sometimes it’s more convenient to give money to keep your kids

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temporarily happy with outings or gadgets, when what they really need is to be having a family night where you all cooked dinner together and played cards.

Likewise, it’s easy to give in to demands when you are so tired you can hardly string a sentence together. You don’t have the energy to argue or put clear boundaries in place – it’s all just too hard. But that’s not intentional love because it’s not growing your kids into adults who understand delayed gratification or the meaning of the word NO. Instead it’s breeding entitlement and potentially narcissism.

Family Branding Just as businesses or corporations have vision, mission statements and a company culture, every family has its own values, beliefs and traditions. I call it “Family Branding”. It is what makes each family unique, gives a sense of belonging, and a strong basis to make decisions. This becomes especially important for teenagers, when they face peer pressure.

When I grew up, our family brand was signified by hard work, excellence and service to others. Sadly, Mum and Dad separated when I was ten, but because that brand was ingrained into me, I have continued to use it as a benchmark for everything I do, with a couple of adjustments.

Our brand was all about ‘doing’ and not much about ‘being’.

I have realised that any quality done to excess becomes a weakness. Hard work, for example, can lead to burnout, excellence can become perfectionism, and serving people can become people pleasing. So, I have added fun and enjoying people into the brand so that it retains balance.

Traditions and rituals Incorporating traditions and rituals makes your home a safe

haven where the family can be together and shut out the big, bad world. When our kids were little and we were building our business like maniacs, we celebrated Saturday family night, which lasted well into the girls’ late teen years. We planned it and made it a very special time together.

On Sundays (our day off) the girls made a colourful paper ring stapled together to make 6 loops representing Monday to Saturday. Each day the girls would rip off one of the rings before bedtime, meaning we were one more night closer to family night.

Eating around the table brings people together and encourages communication. In this 24/7 world where kids are doing activities every night of the week, there is little common time to eat together. If you are working late why not make breakfast your family meal? It’s not good to be away from home at both ends of the day on a regular basis.

If your children have a phone, check in voice to voice each afternoon. It only needs to be a 5 - 10 minute chat but it’s an important part of their day. If they are coming home to an empty house, afternoon tea is a big deal.

Leaving a kind note or something really yummy when they least expect it can really translate as a thoughtful gesture on your part. It says ‘I’m thinking of you’.

Keeping your head in the business and your heart at home The minute your children were conceived, you were given the authority and the responsibility to lead them to adulthood. It is a big ask, but also a strong reminder that no career can ever be more important than parenting.

This is not to say that you can’t be accomplished in your work role; you just need to be deliberate about both roles.

One advantage of having a strong family culture and good routines is that you can train your kids to respect your work. When you are in work mode, you can’t be interrupted by trivial texts or to solve squabbles. If you think of things that are home related, then stop and send yourself a note and get back to work. Don’t try to remember things or use your head as a filing cabinet!

Contribution equals ownership of the home A big job usually means big hours and big money. It’s tempting to pay to have everything done at home. On the whole that’s a smart idea except that it doesn’t help your kids mature. I suggest they do jobs, change their

bed sheets every week or fortnight and be responsible for cleaning their rooms. Be fair, be clear and put it in writing so everyone knows his or her role.

Contributing is important to build character and to prepare them for eventually leaving home. Contribution creates ownership – a stake in the ground - which builds confident and capable children. Unfortunately, the enemy of paying for things to be done is that you may raise kids who don’t know how to cook or use a vacuum cleaner.

This leads to your kids becoming useless flatmates, underwhelming employees and disappointing life partners because they can’t self-manage.

Looking after YOU! Your children and you need to work, rest and play. Examine that ratio in your life frequently. In the hectic world of deadlines and demands, many people use coffee to wake up and alcohol to wind down. Eating whatever someone puts in front of you is inevitable when working on those urgent cases, but it is easy for this lifestyle to become the norm. The quality of your health will directly correlate to the quality of your family relationships. Don’t be so tired, unfit or fat that you can’t play with your children on your precious time off.

Get enough sleep, which may mean having a deadline to go to bed. It’s easy to look at social media once more or answer one more email. Next thing you know its late – very late - and you are tired but still wired.

Do you really need your phone in your bedroom? If you don’t have it, your kids won’t resist when you tell them to leave their phones on the kitchen bench before they go to bed.

Know your limits Being a corporate animal and a great parent will take just about all you’ve got. You still need time and energy to be a responsive partner or spouse if you have one, a son or daughter and a friend and sibling to a few other lucky ones.

Think about what else you are volunteering for. Be realistic and don’t be a martyr. I know families whose parents are adored by the masses but are emotionally distant from their own children. Is it worth it? Not in my book – but then again you are writing your own story.

Make it one you will want to read in the future.

In conclusion – I champion you for reading this article. You are a parent who cares. You may have been challenged by it, but I hope above all that you have been encouraged! *Yvonne Godfrey is the founder and director of MIOMO is a 4-day Life Skills & Leadership Programme for 16-24 yrs and the author of Parenting Young Adults ‘How to Set Up Your Young Adult for Independence and Success in Life’. She is also a family coach and speaks at conferences. Contact Yvonne at yvonne@miomo.co.nz or phone +64 27 249 5444. www.miomo.co.nz | www.parentingyadults.com

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Designing Your Space

By Anne-Grete Videbeck Anne-Grete Videbeck’s 20 years as an Executive Assistance gave her first class skills for organising and practical implementation of office set-ups and reorganisations. She is a professional organiser and certified paper flow consultant, as well as having completed a three-year interior design course. She talks about what it takes to create a new workspace or to redesign an existing one.

The average person spends 1 hour a day looking for something. This means the average person spends approximately 6 weeks per year looking for things. This time exponentially increases when the top of your desk and cabinets can’t be seen for paperwork – much of which is not even related to the work in progress. Alternatively, you may have decided to make the switch from a law firm to running your own practice. Either way, it can be difficult to know how to implement a change.

 Decide on office layout  Interior decorating incorporating and reflecting your brand  Set up workstations  The back office – copiers, scanners, printers  Have wi-fi, internet access and phones installed  Notify authorities and clients of changes  Insurance.

3. Formalities for leaving your old firm  Retirement contributions and plan  Fees outstanding  Employee benefits  Personal and professional information  Client files 4. Before the doors open  Accounting  Bank accounts  Technology needs  Filing system v Cloud storage  Staff  Office equipment and supplies  Refreshments  Research facilities  Subscriptions and news alerts.

You need a plan to help you make the transition smooth and make your environment work for you. It should focus on three areas:

Starting up Take, for example, opening your own office. You will probably have spoken with a few of your colleagues who have done just that, but even so, it is one thing hearing about their experience and quite another to do it yourself.

And you need to bear in mind that they may not have gone the best way about setting up themselves.

A small check list of what needs to be covered would include the following:

1. First of all, who are you?  You will need to set up your company details  Get a post office box  Get your website and email address set up  Set up bank accounts and credit cards.

2. Where will you operate from?  Find physical space

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1. Head Space: The Systems you need in place; 2. Work Space: Design based on functionality; 3. Your Space: Personalisation. Making it a place you want to be.

However, you need to keep working while this is going on, and ensure the money is still coming in. This is where getting some professional help can be of immense benefit. A good planner will adopt a 360° approach by: •

•

•

conducting an in depth meeting, which should reveal how you personally like to work, and how you would like your brand to be viewed. making recommendations on office layout, the look and feel of the space and the practical systems required to get the office up and running. giving hands on assistance in pulling it all together, leaving you free to continue your day to day business.

Understanding how the business works, what is required and what could improve office systems and layout, is critical. Layered on top of this there has to be a feel for the look and feel that will suit your brand and productivity.

It is the critical form and function synthesis that will make the difference, as the case studies below show.

Case study 1: Robert.

The Brief: Robert’s biggest frustrations were not being able to find things, and wasting time and money looking for things. Seeing messy piles day after day Robert started to feel overwhelmed and confused, which caused paralysis and despondency that this wouldn’t change. Along with running his business Robert was also involved in many research projects and he wanted a system to keep on top of these, while they were being progressed.

Robert wanted to feel peaceful, inspired and engaged when he walked into his workspace. He wanted it to be a place he felt refreshed and nourished and from which he would create amazing work.

How professional planning helped.

A lot of the paperwork had been sitting in piles for ages, and needed someone to come in and take charge of clearing it. The clutter on his desk and walls was removed and his desk was then systematically reorganised, so that he had new systems for his recurring files at arm’s reach; current projects in files at hand; and a new diary management system set up.

The Outcome: Robert found he approached each day with clarity, a sense of purpose and urgency to get through his work.

Case study 2: Katherine.

The Brief: Katherine had previously had help with organising aspects of her home and she then she asked for help her with her office.

Katherine wanted to create a clean, contemporary and functional office space for her boutique business. She wanted to feel in control of all of the paperwork that landed on her desk on a daily basis. She wanted an office that staff and clients could come into unexpectedly and that she felt proud of and enjoyed being in.

How professional planning helped.

Her office was repainted a warm inviting colour which represented the company brand. It was given a new layout had custom built shelving and desks installed. Her filing system was reorganised and some changes made to her diary management.

The Outcome: Katherine feels great satisfaction walking into her office now, is proud of how it looks, and feels productive and in control of her paperwork.

Size doesn’t matter Even the smallest of office spaces can be completely transformed by careful planning. At the very least, a streamlined environment can be created. If you then want something that reflects you on top of that, but a less cluttered you, again, getting help may be the answer for you. Your office should not be our prison. * Anne-Grete Videbeck can be contacted at Your Space Ltd Tel: +64 21 991 326 or email anne-grete@yourspace.co.nz

Trust Compliance

By Nigel Keats* “I’m told you need to sign this lease agreement for the Lamborghini too” “The trust just bought a racehorse, I need you to sign this” These are just a fraction of the actual engagements we hear about between client trustees and their professionals. While it would be interesting to see the investment strategy documents that endorse such undertakings, at least in these cases the professional trustees have the ability to say ’no’ before the transaction is confirmed.

The bigger issue is where the client commits the trust to transactions without the full knowledge and consent of the professional trustees involved. Yet, that professional is jointly and severally liable for the actions of the trust.

We believe the root cause is the nature of trusts in New Zealand. We probably have more domestic trusts per capita than anywhere else in the world. So, settlors are not just confined to the wealthiest one percent of the population, as is the case in most other trust jurisdictions.

Many New Zealanders with modest levels of wealth and trust knowledge both settle trusts and act as trustees.

They often don’t understand that the trusts’ property is no longer solely theirs to do with as they wish, or that trust decisions require the consent of other trustees.

They’re not always financially sophisticated and are unwilling or unable to pay for intensive professional trust management and advice.

In our view, this leads to a downward spiral. Less professional involvement, means smaller fees and less client oversight. In turn, this means more risk for less reward for the professionals involved. Many readers know the prominent court case CIR v Newmarket Trustees, Selkirk v McIntyre, Spence v Lynch et al. But we hear about the insurance claims and settlements too, which suggest that the court cases are only the tip of the iceberg.

We also hear stories about trust management such as “The lawyer did it as a gift, but the accountant as a loan””. A reliable documentation trail is crucial for sorting out these disputes. Another involved a lawyer transferring the company shares into a new trust without

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the knowledge of the accountant, resulting in the loss of $1M of imputation credits. One accountant confessed to making distributions to a party who was no longer a beneficiary for four years. Another said they found they’d been doing it for 10 years! Did they lawyer not advise the accountant? Or, the accountant overlook it?

Regardless, it is symptomatic of the issues that result from the complex management of these multi-party entities. Having a well managed trust and keeping accurate records could be critical to protecting a trust.

Trust documents should be kept for the life of the trust - up to 80 years. Keeping this important information on paper or hard drives for this period risks exposure to floods, fire, earthquakes and more. A loss of information in just one location could leave the trust’s records incomplete.

One option is to use online trust software to mitigate the risk for trustees. This can provide secure storage for all trust information for the (long) life of the trust and beyond, for all the parties involved. Records should be automatically backed up using top-level security and encryption. The trust’s lawyer, accountant and nonprofessional trustees, and all their information are brought together in a single workspace. Everyone involved is looking at the same information and there is no requirement to send, receive and update information to or from the other parties involved.

It is important to note that trust software should not seek to replace professional advisors or advice.

It should instead strengthen the connection with professional advisors, as trustees will share their actions and will be able to engage assistance within the product at any point.

Martin Hawes in his book Family Trusts – the Must Have Family Guide says that 75 per cent of family trusts in New Zealand are so badly arranged or managed that they could easily be attacked and overturned in court.

He compares managing a trust badly with insuring your house contents but then going on holiday and leaving the doors wide open. It may be past time for people to think of trust management software as a professional requirement rather than a desirable option. * Nigel Keats is a director of Connectworks which provides a cloud based trust management software. Trustworks) Contact Nigel by email at nigel@connectworks.com . See www. trustworks.co.nz

Lawyers and KiwiSaver - Too Young, Too Old, Too Scared or Too Bold?

By Laetitia Peterson* In preparation for writing my book, “Legal Tender”, in which I explore the relationship lawyers have with their money, I interviewed 61 lawyers. One of the topics we discussed was their knowledge of and relationship with KiwiSaver.

Since 2007 – how involved have lawyers become?

Introduced by the Government almost a decade ago, this predominantly work-based, voluntary pension scheme encourages New Zealanders to save for their retirement.

Do lawyers contribute to KiwiSaver?

61% Yes 39% No A total of 61 per cent of the sample of 61 lawyers (identical numbers were a pure coincidence), contributed to KiwiSaver. A few who had worked overseas had also contributed to an offshore pension scheme. Some hadn’t realised they could transfer these contributions to their KiwiSaver or another approved superannuation scheme. The balance of 39 per cent did not contribute to KiwiSaver. However, a couple of lawyers mentioned that although they didn’t contribute themselves, they had set up KiwiSaver accounts for their children and were contributing on their behalf. Non-contributing lawyers often thought the scheme was not designed for them, for example, equity partners not actually employed by the firm. Although, interestingly, they knew that as employers of lawyers, they contributed to KiwiSaver on their behalf.

I pointed out that the scheme was set up to include the self- employed, by allowing them to determine their own contribution level as opposed to a percentage of their drawings, either through lump-sum or regular payments.

The self-employed also receive the Government’s Member Tax Credits (more on this benefit follows).

to $521, provided your contributions are at least double this amount. This means a ‘guaranteed’ after tax return of 50% on the first $1,042 you contribute. The second benefit – one of the most well-known if you are employed – is the provision that your employer has to contribute at least three per cent of your gross salary into your KiwiSaver account.

The percentage of compulsory employer contributions has gradually increased from the initial one per cent.

This is on top of your own employee contributions (set at three, four or eight per cent of your gross salary, which can be topped up with voluntary contributions). Some employers also elect to contribute more than the required minimum rate as a further employee benefit. It is on record that judges enjoy much higher contributions from their employer, the Crown. One participant described the judicial scheme as “KiwiSaver on steroids”.

Despite the obvious benefits for both employees and the self-employed, testing revealed that 41 per cent of interviewees enrolled in KiwiSaver were unaware of the Member Tax Credits and a total of 27 per cent were unsure of their balance, specific fund and contribution rate.

KiwiSaver funds on offer in the market differ according to asset class and risk exposure. There are five main KiwiSaver fund choice: • Cash (low risk) – Bank deposits and other fixed- interest securities • Conservative (low to medium risk) – A high proportion in fixed interest securities and bank deposits, with a smaller proportion in growth assets •

Balanced (medium risk) – A more equal split between higher risk growth assets, such as shares or property, and more stable assets, such as fixed-interest and bank deposits

The contribution to KiwiSaver from the general New Zealand public has risen steadily since 2007 but the average balance is still hovering around the $10,000-mark.

• Growth (medium to high risk) – A high amount in shares and property with a smaller amount in deposits and fixed interest

What do lawyers know about KiwiSaver?

Let’s review the key benefits of contributing to KiwiSaver, since these don’t appear to be well understood. First, the Government pays annual Member Tax Credits of up

• Aggressive (high risk) – Mainly shares.

New members who do not choose a KiwiSaver provider or fund are automatically allocated to conservative

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schemes run by Government-appointed default providers.

The default schemes have been popular, as have conservative schemes.

Columnist Janine Starks aptly referred to default KiwiSaver schemes as a “dinghy with one oar”, commenting that default funds “were only designed as a temporary holding tank; a nice safe place to bob around in a life jacket. You are unlikely to sink and you won’t get far. We are then supposed to find a suitable boat and sail away with our choice of V-shaped hull, outboard motor, hydrofoils or international cruise liner. However, vast numbers of us have been bobbing around the marina for years. We either don’t realise there’s a boat to catch, or we need some help choosing one.”

Let’s have a look at two hypothetical case studies. One that looks at starting a self-employed KiwiSaver fund, and another that explores starting a fund for your children.

Case study one – self-employed contributions Joe joins KiwiSaver at age 25 when entering the work force in a self-employed capacity as a barrister sole.

He contributes the minimum $1,042 a year to get the maximum Member Tax Credits of $521 per annum. He decides to invest in an 80% growth fund for the first 25 years and then tones it down to a more balanced portfolio with 50% growth for the last 18 years of his working life until the age of 65. His Prescribed Investor Rate (PIR) is assumed at the top rate of 28%. In today’s dollars, Joe’s KiwiSaver would be expected to be worth $121,195 at age 65 with a 50% probability of success. In nominal terms, assuming 2% inflation per annum, the amount would be $283,982. This is what the price of a couple of ‘beers-ies’ a week could deliver after 43 years of consistently putting away $20 a week. Not enough to fund his full retirement but a tidy sum nevertheless for very little sacrifice along the way. The growth in Joe’s expected KiwiSaver balance is shown in the graph below (in today’s dollars). This is a clear example of the power of compounding as you see

the curve climbing at an increasing rate over time.

Case study two - A kickstart for the kids Anne’s parents sign her up to KiwiSaver when she is born and they contribute $1,042 into her KiwiSaver account every year until she turns 21. Anne won’t receive the $521 Member Tax Credits a year until she turns 18. Her parents choose to contribute to an 80% growth fund given Anne’s young age. Her PIR is 10.5%. In today’s dollar, Anne’s KiwiSaver would be expected to be worth $34,815 when she turns 21 with a 50% probability. Allowing for 2% inflation each year, the nominal value of her KiwiSaver fund would be expected to be $52,769. This case study illustrates the benefits of parents contributing to their children’s KiwiSaver funds before they start their own careers. Given the children can withdraw funds to buy their first home, the extra $34,815 (or $52,769 in nominal terms) would be very welcome. If both parents (assuming a couple) had done the same for their children, the amount would be double! This could be achieved with very little sacrifice by the parents and only three years’ worth of Member Tax Credits. Lawyers often talk to me about the best head starts for their children. This is an easy way of getting them onto a savings path. Again, the growth power of compounding is illustrated in the graph below.

Access to KiwiSaver funds – how locked up are your funds?

The KiwiSaver system has been designed to lock your funds in until you turn 65. This is a feature which the older lawyers we interviewed highlighted as one of the main reasons for their non-participation in the scheme.

However, there are four means through which you may be able to access all or a portion of your money earlier.

1. Purchase of your first home If you’ve been a member of KiwiSaver for three years you may be able to withdraw some of your KiwiSaver savings to put towards purchasing your first home.

Case study one

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Case study two You may be able to withdraw the current value of your contributions, your employer’s contributions (voluntary and compulsory), the returns on your investments, and any Member Tax Credits, provided you leave a minimum balance of $1,000 in your account.

2. Moving overseas If you have moved overseas permanently, to a country other than Australia, and you’ve been there for at least one year, you can withdraw your savings from KiwiSaver.

3. Proof of hardship If you can prove to the IRD that you’re suffering significant financial hardship, you may be able to withdraw some of your KiwiSaver savings.

4. Serious illness If you have an illness, injury or disability that either permanently affects your ability to work or poses a risk of death, you may be able to withdraw your KiwiSaver savings early. You will more than likely need to provide medical evidence to support your application.

Kiwi slaver or Kiwi saviour?

The lack of KiwiSaver contributions (especially by partners in firms and other self-employed lawyers) and a corresponding lack of knowledge of the scheme (even from active members) were, for me, a little disappointing.

Of course, this doesn’t mean lawyers have missed the boat on retirement saving. It may simply mean that for them the benefits are immaterial, especially in view of the absence of compulsory employer contributions for the self-employed. Lack of access to the funds before the age of 65 may also be constraining.

Whatever your age, it’s never a bad time to start thinking about or to reassess your plans for retirement. Even if

you only choose to save the minimum per week, the Member Tax Credits offer a guaranteed 50% return on your contributions, which is difficult to beat through any other offering. Your KiwiSaver fund can help you purchase your first home, and more importantly for many lawyers, who are by their nature often “Family Stewards”, it can help your children purchase their first home. It certainly isn’t the golden goose that will lay it all out for your golden years, but it will most certainly help you get your nest egg underway. *Laetitia Peterson is a personal wealth adviser and is married to competition barrister, Andrew Peterson. She has worked with companies such as Goldman Sachs and boutique funds management firm Liontamer, which she co-founded with Janine Starks. She is now the CEO and founder of The Private Office, helping successful lawyers achieve the financial goals important to them and their families.

Legal Tender Laetitia’s book explores the ideas of family stewardship, typical money behaviours, attitudes towards money, and lawyers’ views on wealth creation. It delves into the psychological effects of money and the impact of stress and financial worries, as well as the importance of personal resilience and creating a legacy worthy of a life well lived. Legal Tender will change the way you look at the value of your work as a lawyer.

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Petrol Head’s Corner

By David O’Neill With my never ending devotion to NZBA Members, I have selflessly tested 6 Lexus’s over the last few months. An editorial squabble followed when I submitted my 200 pages of copy. As Editor of At the Bar, I felt that the best way to deal with this was to print a brief overview and then post the full review on the website. Unfortunately, the sub-editor (note the lower case “s” and “e” on sub-editor), refused to follow instructions, telling me that the good bits were smart remarks in the reviews and she didn’t intend to pay attention to my orders (you just can’t get good help anymore - Ed). [Sub-Ed – he’s lucky to have us and note the upper case S and E on Sub-Editor] During the early part of the 20th century when the iconic brands, such as Mercedes Benz, were established as luxury marques, Lexus did not exist. In fact, no-one had even heard of Toyota, which started production in the early 1930s. For many years thereafter, we all associated Toyota with the family market – reliable, A to B, cars. That is, until one day, Toyota decided to make a luxury vehicle to challenge all the Europeans. In 1989, Lexus was born.

A lot of people say that a Lexus is just a flash Toyota.

They couldn’t be more wrong. Lexus is a stand-alone brand with its own factory. Of course there is crosspollination of parts. No car company could survive without that. But Lexus has now established that it can foot it with the big boys from the niche brands in Europe, such as Audi, Mercedes Benz, BMW and the like. People now instantly recognise the marque, but I suspect it’s been a long hard road.

The Lexus Style Lexus has chosen its own pathway from a style point of view. The current bunch of offerings feature the same front to varying degrees, which is dominated by a distinctive large black grill, which I call the “Darth Vader grill”. I think this will become the Lexus signature look. The vehicles are very angular, in line with current design trends, with sharp lines delineating the waistline and the ends. Sidelights, indicators and headlights, all adopt a similarly different shape and configuration, most of them looking like arrows. Some like it, some hate it. Whatever, it’ll evoke a response

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one way or the other so the choice is yours. I liked the look as it is quite sporty but slightly menacing.

Starting with the IS200T right through to the LX570, I have to say that Lexus have covered the entire field.

All of the cars come with keyless entry, keyless start, tonnes of controls, fabulous seats, deep carpet etc. The seating in particular should be mentioned and can only be described as superb. The seats have exceptional ergonomic design and are heated or cooled (depending on the season).

I’ve said this before and I’ll say it again, these days it comes down to which particular make you like. In my view, the style, comfort and pricing of the Lexus is equal to any of the similar type European vehicles on offer.

Certainly, if you were in the market for a vehicle, you would be nuts not to go and have a look at one of these.

These cars are, in my view, pretty much as good anything the Europeans have to offer in the same price range.

Japanese engineers could show the Europeans a thing or two and they haven’t been doing it nearly as long.

LEXUS IS200T The smallest Lexus offering is the IS200T, a mid-size 4 door sedan with a 2 litre motor which is comfortable and very easy to drive. I’m getting used to the fact that not every car I drive is a missile in waiting [Sub-Ed: Yeah Right], so I don’t mind driving “nice” cars, which this was.

It was what you’d expect in the acceleration stakes - not quick but not slow either - sort of just right........ A bit like baby bear’s porridge. The claimed acceleration is 7.0 seconds – 0 – 100km/h.

Specifications Engine Four cylinder

two litre single

turbo petrol Power 180kw Fuel consumption 7.5 l/100km Torque 350nm Price $86,000 The seating is superb as it was in all the models but in this one, the

Specifications Engine 2.5 litre twin cam hybrid Power 118kw Fuel consumption 5.5 l/100km.

Torque 213nm Price $75,000 (base model)

seats were a very smooth dark red leather - think Italian coloured red - high praise from me, indeed, because I reckon the Italians have that panache with car design and interiors that no one else gets near. Some of their cars don’t work too well but, hell, they look über cool, even when broken down.

This car has about a million controls. The “mouse” has replaced the sensitive touch screen for use of the computer screen and that’s easier to use. It’s still sensitive, but at the end of the day, I think it’s better than the previous touch pad. I can’t imagine the option list is too long. There wasn’t too much more that’d fit in there.

The cabins in the smaller cars are so well designed now that even given my height, adults can sit behind me comfortably. The boot is quite small but I know it can take one set of golf clubs and a small trundler (I tried it).

We went across to the beach (my usual test route) and managed to stuff everything (including the cats), inside the boot, four people in the cabin and it was remarkably comfortable all the way.

LEXUS ES 300H You may gather from the introduction to this article that there is dissension within the editorial committee over cars. For years our Sub-Editor has pleaded that I test drive a hybrid and I had to refuse, commenting that they looked like suppositories. Imagine her surprise when I told her that I had test driven a Lexus Hybrid. It was rumoured that she had tears in her eyes. However, I didn’t have the heart to tell her that all of the ES Lexus vehicles are hybrids.

I test drove the base model. It was a good looking car and turned peoples’ heads (and “No” it wasn’t me they were looking at) [Sub-Ed: there was a doubt?]. The car is a slightly larger than a mid-sized vehicle with a huge amount of room inside, front and back. However, the boot isn’t huge - it was certainly wide enough to take a set of golf clubs, but I think that would be about it.

The cabin is enormously comfortable and would happily seat four adults on any long distance trip. The interior was, again, decked out beautifully. I personally didn’t try the seat heater with the blower in the seat. I suspect you might get an oven bake thing going. However, much to my sons’ delight, the centre arm rest in the back folded down and had a number of controls to make the volume of the radio go up and down, air conditioning change and seat warmers. This, naturally, ended up in an argument because one wanted to cook the other one in his seat.

It is quite an eerie sensation when you start the ES 300H’s engine and nothing seems to happen. A little light comes on in the dashboard saying “Ready” but there’s no noise and if you put it in gear it moves off without any sound at all. The dealer told me the electric motor comes into play when power is not required, for example, coasting down a hill or sitting at the lights waiting to take off. It is an alternative to the stop-start systems that are prevalent on other normal petrol driven vehicles (which I don’t like).

I have to say, though, that I enjoyed driving the car. A lot of cars these days have economical motors which are small in capacity and yet tucked into quite big bodies. This is one of those. The claimed acceleration is 8.5 seconds – 0 – 100km/h. This is not rocket ship territory – but pretty good.

For $75,000 you get a lot of car for your money. The only drawback in my view was the size of the boot. Of course, you can always get junior to truck along behind you in the Lexus version of the Land Cruiser (the LX570 – see below) bringing all the golf clubs and what have you, while you waft along in front in your lovely new Lexus ES 300H.

LEXUS RX350F and the LEXUS RX450HF Sport The RX350F Sport and its bigger brother, the RX450HF, are described as mid-size crossover vehicles. The RX350F is powered by a 3.5 litre V6 petrol engine with quad cams. It was cheaper than its older, bigger sibling (so to speak) but in every respect seemed to be identical.

Same body, same interior but a different transmission and a hybrid motor in the RX450F.

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all” type of box. It didn’t actually seem to change gear but according to the website it has 8 speeds. While the rev counter clicks down, it just goes and goes and goes.

By contrast the RX350F had noticeable gear changes.

Both vehicles had lots of lovely noise and but they wouldn’t beat anybody in a drag race. Acceleration of the RX450HF was 7.7 seconds 0 – 100km/h – sort of sluggish.

Specifications RX350F RX450HF Engine 3.5 litre V6 petrol - 3.5 litre V6

quad cam Hybrid Power 221kw 193kw Fuel consumption 9.6 litres/100 km 5.7 litres/100 km Torque 370nm 230nm Price $108,000 (base) $125,900 -

$129,900 My RX450F was graphite black with black glass and (OMG, believe it or not) white/cream leather. The sports seats which were fantastic (as were the seats in all the Lexus cars) had heaters and fans in them, but the colour didn’t float my boat. There goes the trip back from rugby on Saturday with one very dirty forward!

Both cars are packed with a variety of excellent features, including sat-nav, HUD (heads-up display) and 15 speaker surround sound Mark Levinson stereo to name a few. One useful feature is the wireless charging on the RX350F. If it has the appropriate compatibility, you can charge your mobile device without plugging it in to anything. Once again, very clever technology from Lexus.

The main difference between the RX450F and RX350F appears to be in the engine.

The RX450F is a hybrid and has the benefits of using an electric motor which, according to the Lexus website, almost halves the fuel consumption. The hybrid system means that at times when you are in traffic or sitting at the lights, the engine turns itself off and the electric system kicks in.

The RX450F is not as quick as the RX350F, but neither of them are rocket ships and to be perfectly frank you are not buying a Lexus to get super-duper performance.

Driving the RX450F was really no different to driving the RX350F. The only difference to the drive was really the RX450F’s transmission. The gearbox is a “one speed fits

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We took both vehicles across the usual route to the beach and got to see what they were like both on the flat of the Hauraki Plains and up over the hills into the Coromandel Peninsula. They were comfortable, very easy to drive cruisers. However, I found the steering on the RX450F a bit light for my taste. I am used to a heavier steering particularly at speed (I am talking ordinary speed for that matter). Overall, it drove fine and swallowed all the gear plus the cats, of course, and there were plenty of buttons in the back, arm rest in the centre to keep the kids happy for at least 5 minutes.

LEXUS LX570 This is the big brother of all of the SUV range and it is more commonly known as the Lexus version of the Toyota Landcruiser. This is a seven seater 5.7 litre V8 petrol 4 wheel drive with an 8 speed transmission.

Specifications Engine 5.7 litre V8 petrol (Diesel available) Power 270kw Fuel consumption Don’t ask (14.4 l/100km) Torque 530nm Price $179,000 This vehicle is probably made for the US market, where petrol prices are much lower. I can’t imagine them selling many here because it is simply too thirsty and too expensive to fill up. At one stage when I took off from work one evening, the computer read-out registered 53 litres/100km as I was driving down the street. You can see why it has a 138 litre gas tank. To put it another way, it’s a major financial exercise when you pull up to the pump at the gas station. I suspect the diesel would be a far better bet in New Zealand.

The LX570 was easy to spot in the Waikato Toyota yard. It is higher, wider and longer than any other car that I have ever driven. It has grab handles on the doorframe and steps to allow you to swing up into the cabin. It is so wide that the mid console would easily be 2 feet across. Calling it a SUV (sports utility vehicle) is pushing it a bit. This was like driving a boat.

I can truly say that I have now driven the USS Nimitz. It was a monster.

So what is it like to drive? Well it’s like this. You are sitting about 2 feet higher than anybody else in traffic, you can

see for miles (you need to because the bonnet is about a mile across and a mile deep) and you’re the biggest guy on the road apart from the odd logging truck that might whistle by. When you start it up, it makes a hell of a noise. It sounds like a jet getting ready to take off. Mind you it needs to because it needs all that power to shift 3.3 tonnes of vehicle down the track.

Frankly I didn’t enjoy driving it because it felt too big. The steering was also incredibly light for a vehicle of this size and certainly, like all the other Lexus’s, it was too light for my taste. Having said that, the one time I got it out on the open road it was silky smooth and very pleasant to whizz along in. How it goes off-road is something I didn’t try and I wouldn’t want to unless I had a very big tow wagon available on standby in case I got stuck, because you ain’t gonna push it out!

It has every button that you could possibly imagine available to the driver. There are driver’s aids everywhere and it’s probably fantastic in the wet and boggy ground of the polo paddock but I didn’t get to go there. One odd feature that is an oversight (in my view) is that the control buttons cannot be seen at night. You have to push in a tab, which lights up the name using LED optics. But you can’t see the button itself. Fiddling around in the dark pushing various buttons until you get to the right one isn’t a good thing, in my view.

There is no doubt about it, Lexus has gone to great lengths to ensure that the biggest wagon they sell is as luxurious as any of the others if not more so, including a rear seat centre console with more buttons than most cars have in front, and each rear passenger had a dedicated video screen, to keep the little darlings quiet while you drive to the polo ground or wherever.

If you want something to tow the horses, lug a house around or just want the biggest vehicle on the street, then get this.

Specifications Engine 5 litre V8 petrol sedan Power 351kW Fuel consumption 11.3 l/100km.

Torque 530nm Price $174,900 It pretty much had everything. It had all the goodies on the dials, told you everything you wanted to know about G forces and lap timers and torque distribution.

Most people wouldn’t give two hoots about what the G force was as they rounded the corner, but I’m sure that someone likes it. Putting all that to one side, there was a high level of comfort, high level of audio equipment and pretty much everything you wanted to have in a car which costs you nearly $175,000.

It did all the things I wanted it to do as a luxury cruiser with some real stonk underneath the bonnet. Of all of them, this is my pick but that’s my personal view because I like the power.

The GSF makes no excuses for its 5L V8 petrol nor even a tipping of the hat to the environment. It starts up, roars like a lion, sits there and gurgles away swallowing gas like it’s going out of fashion and then takes off like someone’s nicked it. My wife thinks this is boring. She couldn’t be more wrong. With millions of avid readers, I think it’s fantastically funny.

LEXUS GSF The last car that I got to drive was the GSF. It’s a halfway house between the mid-range vehicle and the monster limousine. It is a 5 litre V8 petrol sedan. It’s a big car with plenty of room in the cabin, a big boot but not the sumptuous limo like the old LX 470 (I think I got that right).

The GSF is a cracker of a vehicle. It looks like a limo but goes like a boy racer on Friday night. It’s totally uneconomic and gets you from A to B in the blink of an eyelid. It toddled along quite comfortably and easily without attracting attention to itself, but when you hit the loud pedal it could go like crazy and pass just about everything in sight. It is my pick of the bunch, but not cheap.

It is a little bit of wolf in sheep’s clothing. It goes like stink, costs a bomb and is extraordinarily comfortable.

It’s pretty much the top of the range for Lexus and with the price you would think so. When you start it, you notice the difference. It starts with a howl and then lowers itself to a grumble and when you take off, it really does sound like something quite different. Put it into dynamic/sporty mode and it takes off. Acceleration is claimed to be 0-100kmh/4.6 seconds - that’s quick and extraordinary for a car of this size and weight.

I am hopeful that that Lexus will still like me after this review (unlike my unamused wife and stroppy SubEditor who cut out a reference to Kim Kardashian while muttering about institutional sexism) and will let me drive their LC series, a 5 litre V8, 2 door coupe, due to be released soon. Whether I can fit the kids in or not is another issue but frankly if I can’t then so what? [Sub-Ed – Oops, don’t look now but there is another group of people who are not happy with you...].

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2013-2014 COUNCIL CONTACT DETAILS

2015 - 2016 COUNCIL CONTACT DETAILS CLIVE ELLIOTT QC – President Ph: +64 9 307 1769 elliott@shortlandchambers.co.nz

PETER DAVEY Ph: +64 9 309 0475; Fax: +64 9 354 3850 peter@davey.co.nz JOHN DIXON Ph: +64 9 306 2775 john.dixon@shortlandchambers.co.nz JONATHAN EATON QC - Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz LISA HANSEN - Vice President Ph: +64 4 914 1052 l.hansen@barristerscomm.com GREG HOLLISTER-JONES - Associate Member Representative Ph: +64 7 928 6202 g.hollister-jones@rhjl.co.nz DENNIS JENKIN Ph: +64 9 307 1769 djenkin@shortlandchambers.co.nz DALE LESTER Ph: +64 3 366 1465 dale@canterburychambers.co.nz TIHO MIJATOV - Junior Barristers’ Representative Ph: +64 4 472 9025 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL – Treasurer/Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com PAUL RADICH QC Ph: +64 4 974 5951 paul.radich@cliftonchambers.co.nz GRETTA SCHUMACHER - Junior Barristers’ Representative Ph: +64 9 309 1769 gschumacher@shortlandchambers.co.nz DEAN TOBIN Ph: +64 3 477 8781 dean.tobin@princeschambers.net JAMES WATSON - Junior Barristers’ Representative Ph: +64 4 472 9025 james.watson@stoutstreet.co.nz

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