LawTalk 913

I S S U E 9 1 3 ¡ D e c e m b er 2 0 1 7

NZ Relationship Property Survey

GDPR compliance in four steps

Sexual harassment in the NZ legal workplace

The fine art of billing

Page 23

Page 28

Page 34

Page 37

Don’t miss out on John Earles webinar December

7

Thursday

Probate and Administration Law and Procedures Update 2017 | 2:30PM An in-depth look at the changes to probate and administration law and procedures that have occurred over the past year with comment about the changes to rules and forms.

Price: $160*

*Webinar can be recognised as contributing 1 hours of cpd towards annual CPD requirements for lawyers under the Lawyers and Conveyancers Act Rules 2013.

LexisNexis and the Knowledge Burst logo are registered trademarks of RELX Inc. Š 2017 LexisNexis NZ Limited. All rights reserved.

MP112017CC

Visit https://store.lexisnexis.co.nz or call 0800 800 986 to place your order today!

Find out what Thomson Reuters is doing to help Infinitylaw users comply with the new anti-money laundering requirements.

CONCERNED ABOUT AML? Talk to us.

Please contact us at marketingNZ@thomsonreuters.com

You only need one tool to rebuild your house completely.

We believe that accurately calculating the cost of rebuilding your house if it’s destroyed should be our risk not yours.

This means you can rest easy knowing that you can rebuild your house to the floor area you provide us with. You work out the area, and provide us with some basic information about your property, and we’ll calculate the cost. It’s that easy.* To find out more about MAS House insurance, email us today at info@mas.co.nz or call 0800 800 627.

*Area replacement cover availability is subject to the MAS standard underwriting acceptance criteria at the time of application, and will not therefore be available in some circumstances. Where your house is damaged by a covered event, we’ll pay the reasonable costs to repair or rebuild the damaged parts of the house to a condition substantially the same as it was when it was new. If your property is a total loss, we’ll pay the reasonable costs to rebuild your house to the same floor area as is recorded in the policy schedule. Please see the full policy wordings which are available at mas.co.nz or by calling 0800 800 627.

6 9

People in the law

6 · Long-time Community Law chair steps down ▹ BY NICK BUTCHER 7 · On the move 12 · NZLS

at a glance

Courts 14 · Court and Tribunal hours over the 2017-18 Christmas and New Year period

68 21

Update 16 · Dealing with the Commerce Commission ▹ BY JOHN LAND 18 · 'Eminem' case throws up some important issues ▹ BY RICHARD FLETCHER 20 · Lifting our human rights game ▹ BY LYNDA HAGEN 21 · Enforcing restraint of trade clauses in franchise agreements ▹ BY DEIRDRE WATSON

23 · New Zealand Relationship Property Survey 2017

88 64

26 · The truth, the whole truth and nothing but the truth... ▹ BY ANNABEL SANDERS 28 · GDPR compliance in four steps ▹ BY BIANCA MUELLER 30 · From Russia with Love (and Trust) ▹ BY SALLY MORRIS AND GEORGIA ANGUS

AML/CFT 32 · Practical tips on conducting customer due diligence ▹ BY LLOYD KAVANAGH AND TINA XU

Practice 34 · Sexual harassment in the NZ legal workplace ▹ BY A NEW ZEALAND LAWYER

37 · The fine art of billing: What you really need to know ▹ BY EMILY MORROW 40 · First Impressions enhancing your Terms of Engagement ▹ BY LISETTE SOLIS 41 · The disruptors are coming ▹ BY VALERIE BLAND 43 · Time for a CPD warrant of fitness ▹ BY KEN TRASS

A B O U T L AW TA L K

S U B S C R I P T I O N S A N D C I R C U L AT I O N

LawTalk is published monthly by the New Zealand Law

Lawyers who want to access LawTalk online only may email

articles and other input should contact the Managing

Society for the New Zealand legal profession. It has been

subscriptions@lawsociety.org.nz stating “please cancel

Editor in advance. The New Zealand Law Society reserves

published since 1974 and available without charge to

LawTalk hardcopy” and advising their name, lawyer ID

the right to edit all material submitted for publication.

every New Zealand-based lawyer who holds a current

(lawyer login), workplace and address. This information

practising certificate. LawTalk is also distributed to other

is needed to ensure that names are extracted from the

recipients involved in the justice system or the legal services

automatic mailing list generation programme. The hardcopy

The New Zealand Law Society was established in 1869. It

industry. These include members of the judiciary, Law

LawTalk subscription will then be cancelled.

regulates the practice of law in New Zealand and represents

to editor@lawsociety.org.nz. Intending contributors of

N E W Z E A L A N D L AW S O C I E T Y

Society associate members, legal executives, librarians,

Non-lawyers and lawyers based outside New Zealand

lawyers who choose to be members. The powers and

academics, law students, Members of Parliament and

may subscribe to LawTalk by emailing subscriptions@

functions of the Law Society are set out in the Lawyers

government agencies. Lawyer numbers change over

lawsociety.org.nz. Annual subscriptions may be purchased

and Conveyancers Act 2006. As well as upholding the

the year, but range from 13,000 upwards. Total LawTalk

for NZ$145 (GST and postage included) for dispatch within

fundamental obligations imposed on lawyers who provide

circulation is normally around 13,400 copies.

New Zealand, with rates on request for overseas.

regulated services, the Law Society is required to assist

Advertising inquiries should be directed to advertising@ lawsociety.org.nz. The Law Society has a strict policy of not publishing articles in exchange for advertising.

S U B M I S S I O N O F M AT E R I A L All contributions, letters and inquiries about submission of

and promote the reform of the law, for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand.

An online version of LawTalk is available on the New

articles should be directed to the Managing Editor, LawTalk,

Zealand Law Society’s website at www.lawsociety.org.nz. A

PO Box 5041, Wellington 6040 or editor@lawsociety.org.

link to the latest online LawTalk is emailed to all lawyers

nz. Information on appointments and other changes in

LawTalk is printed on Sumo Matte. This is an environmen-

with a practising certificate each month after publication.

the legal profession is welcomed and should be emailed

tally responsible paper. Forestry Stewardship Council®

4

E N V I R O N M E N TA L S TAT E M E N T

Contents 44 · Letters

to the Editor

Mediation 45 · Changing the way we argue ▹ BY PAUL SILLS

Tikanga and Ture

56 · New Zealand Criminal Cases Review Commission: The Panacea to Miscarriages of Justice ▹ BY BRIDGET IRVINE 57 · Judge Fred McElrea Restorative Justice online collection expands

46 · The Victoria University of Wellington Māori Law Students' Society and its inspiring initiatives ▹ BY CARWYN JONES

Pro-bono

59 · Lawyers

Practising Well

48 · How to truly enjoy your holiday ▹ BY KATE GEENTY

The New Lawyer

49 · 'Tis the season of summer clerks ▹ BY KATIE COWAN

Pathways in the law

50 · Cooper Legal ▹

BY NICK BUTCHER

Access to Justice

58 · Community mediation services pilot in South Auckland ▹ BY CRAIG STEPHEN

Service

Complaints

Focus on

64 · Focus On New Plymouth ▹ BY KATE

GEENTY

Technology 67 · What to do if you're hacked ▹ BY DAMIAN FUNNELL 68 · Wagbot uses chatbot technology ▹ BY ANGHARAD

54 · Spotlight on legal aid

O'FLYNN

69 · MyAdvice.Legal ▹

(FSC®) certified, it is produced using Elemental Chlorine Free (ECF),

Legal Information

70 · New legal books received ▹ BY GEOFF ADLAM 71 · New Zealand Women's Law Journal ▹ BY ANGHARAD O'FLYNN 65 · Feminist Judgements of Aotearoa New Zealand ▹ REVIEWED BY CAROLINE HICKMAN

Classifieds 73 74 75 77

· Legal Jobs · Will notices · More Legal Jobs · NZLS CLE Ltd CPD Calendar

Lifestyle 78 · Buy carefully on London Food Tours ▹ BY JOHN BISHOP 82 · Reflections from Peter Garrett ▹ BY NICK BUTCHER 85 · A New Zealand Legal Crossword 86 · Tail-end

NICK BUTCHER

C O N TA C T D E TA I L S

Mixed Source pulp from Responsible Sources, and manufactured under the strict ISO14001 Environmental Management System. The

 26 Waring Taylor Street, Wellington 6011

FSC® is an international non-profit, multi-stakeholder organisation

 04 472 7837

which promoted responsible management of the world’s forests.

 PO Box 5041, Wellington 6140, New Zealand,

FSC® certification is internationally recognised as the most

or DS SP 20202.

rigorous environmental and social standard for responsible

PRESIDENT Kathryn Beck

forest management. The paper used to produce LawTalk meets

BOARD

FSC® requirements at all stages along the production cycle.

Andrew Logan (South Island)

The shrink wrap used for delivery of LawTalk is 27 micron biodegradable film manufactured in New Zealand. This degrades naturally. If you wish to discard LawTalk please recycle it. The wrapping may be composted.

PLEASE RECYCLE

***** FPO ***** Placeholder for FSC Certificate ***** FPO *****

kate.geenty@lawsociety.org.nz

COMMUNICATIONS ADVISOR Angharad O’Flynn

04 463 2902 · angharad.o’flynn@lawsociety.org.nz SUB-EDITOR Craig Stephen

04 463 2982 · craig.stephen@lawsociety.org.nz SENIOR DESIGNER Andrew Jacombs

Tiana Epati (Central North Island)

04 463 2981 · andrew.jacombs@lawsociety.org.nz

Nerissa Barber (Wellington)

04 463 2993 · sophie.melligan@lawsociety.org.nz

MANAGING EDITOR AND

04 463 2905 · advertising@lawsociety.org.nz

Tim Jones (Auckland)

EXECUTIVE DIRECTOR Christine Grice COMMUNICATIONS MANAGER Geoff Adlam

04 463 2980 · editor@lawsociety.org.nz

DESIGNER Sophie Melligan

ADVERTISING Christine Wilson WEBMASTER Miranda Kaye

04 463 2990 · miranda.kaye@lawsociety.org.nz

SENIOR COMMUNICATIONS ADVISORS

PRINTING AND DISTRIBUTION

Nick Butcher · 04 463 2910

Format Print, Petone, Wellington

nick.butcher@lawsociety.org.nz

ISSN 0114-989X (Print)

Kate Geenty · 04 463 2936

ISSN 2382-0330 (Online)

5

P E O P L E I N T H E L AW · P R O F I L E

PEOPLE IN THE LAW

PROFILE

Volunteer to chair

Long-time Community Law chair steps down

The future

BY NICK BUTCHER A lawyer credited with playing a leading role in solving a funding crisis for Community Law o Aotearoa (CLCA) is stepping down as its co-chair.

Cameron Madgwick is ending his work with Community Law Centres o Aotearoa after over 20 years involvement with the organisation. He’ll also cease being co-chair of Community Law Wellington and Hutt Valley.

Mr Madgwick got involved with Community Law as a university student studying for his LLB. “It’s such a fantastic organisation and group of people who are doing 6

Cameron Madgwick’s involvement began with Community Law as a volunteer lawyer at the Wellington & Hutt Valley Community Law Centre. He became its Chair in 2008.

Why he volunteered has a certain innocent quality to it. “Funnily, to begin with I followed a girl into Community Law and that was the initial motivation but once inside the tent so to speak, I found the connection to Community Law was stronger than the connection to the girl,” he says.

About a thousand people from various backgrounds are volunteers at Community Law centres, not just lawyers.

It’s no secret that a major challenge for Community Law Centres has always been a financial one. In 2010 Mr Madgwick took a practical approach to getting the best possible deal for Community Law Centres’ funding with the Ministry of Justice. It was a collective renegotiation, meaning all 26 centres were on the same page looking for the same outcome.

“Being able to go into the meeting as a group gave us the negotiating power we needed to get us on a more sustainable footing,” he says.

This led to the development of a governance structure for a national association. The year following the successful funding negotiations, Cameron Madgwick was elected Chair of Community Law Centres o Aotearoa.

“Together you can achieve a lot more than individually and that was proven through those negotiations,” he says.

everything they can to ensure that those people who have the least ability to access justice can do so. It makes it hard to leave when there’s a purpose and goal like that. I didn’t think at the start it would be 20-odd years later, but when you see the huge difference it makes in peoples’ lives it motivates you to keep doing more,” he says.

He says leaving is about creating space for others to step in and play leadership roles.

“We’ve achieved a lot and I feel it’s time for new ideas to come to the fore to progress the movement even further.”

Mr Madgwick says Community Law Centres have a critical place in the wider legal system.

“There will always be people who cannot access the more traditional legal services through private practice lawyers. There’s a high demand for their work and building up centres with the right resources to be able to do that work is the key going forward,” he says.

A report released in October entitled ‘The value of investing in Community Law Centres: An economic investigation, found the Community Law network was delivering up to $50 million of free legal services each year to New Zealanders for an annual investment of just $11 million.

It says Community Law Centres provided over 100,000 hours of advice, assistance or representation to at least 48,000 clients on more than 53,000 legal issues.

Cameron Madgwick is currently the chief executive of Petroleum Exploration and Production New Zealand (PEPANZ).

O N T H E M O V E · P E O P L E I N T H E L AW

PEOPLE IN THE LAW

ON THE MOVE

Honorary LLD for Governor-General The Governor-General, Rt Hon Dame Patsy Reddy, will receive an honorary degree of Doctor of Laws at Victoria University of Wellington’s graduation ceremony on 13 December 2017. Victoria University Chancellor Sir Neville Jordan says the honorary degree is an acknowledgement of Dame Patsy’s leadership as Governor-General as well as her previous career in law and business.

Dame Patsy graduated with a Bachelor of Laws from Victoria University in 1976 and was subsequently awarded a Master of Laws (First Class Honours) in 1979. She lectured at Victoria’s Law Faculty before joining the law firm Watts and Patterson (now MinterEllisonRuddWatts) in 1982.

She enjoyed a rapid rise through the firm’s ranks, becoming the first female partner in 1983, before joining Brierley Investments as Group Legal Counsel in 1987. With her extensive background in law and business, Dame Patsy subsequently became highly sought after for governance and consulting roles in the public and private sectors.

New Ministers in justice-related fields Andrew Little has been appointed Minister of Justice and Minister for Courts in the Labour-led government. Mr Little, a Labour MP and former employment lawyer for the EPMU before his entry to Parliament in November 2011, has taken over from National’s Amy Adams.

Labour MP William Sio is Associate Minister for Justice and Associate Minister for Courts. Mr Sio was a Manukau city councillor and Deputy Mayor before entering Parliament in March 2008.

Labour’s David Parker is AttorneyGeneral, replacing Christopher Finlayson QC. Mr Parker was a partner at law firm Anderson Lloyd before his election to Parliament in 2002.

Green MP Jan Logie is Parliamentary Under-Secretary to the Minister of Justice (Domestic and Sexual Violence Issues). Ms

Logie worked for Women’s Refuge, the New Zealand University Students’ Association and other social agencies before becoming an MP in 2011.

Green MP Eugenie Sage is Minister for Land Information. Ms Sage has a law degree and worked for Forest and Bird and as an environmental advocate before entering Parliament in 2011.

New Zealand First MP Tracey Martin is Minister of Internal Affairs. Ms Martin left the paid workforce in 1995 to be a fulltime at-home caregiver before entering Parliament in 2011.

Changes at Young Hunter Christchurch firm Young Hunter has promoted Karen Welsford to special counsel. Karen joined the firm in 2004 and, after spending time with another firm and travelling, she returned as a senior associate in 2014. She specialises in civil and commercial litigation and dispute resolution with a particular focus on insurance-related disputes.

Steph Gifford has joined the firm’s commercial team as an associate. Steph practises in all areas of conveyancing, commercial, company and business related work, with a focus on relationship property, asset planning and elder law.

New Adderley Head partner Resource management specialist Juliette Derry has joined the partnership at Adderley Head in Christchurch. Juliette graduated from the University of Canterbury and has worked in London and Sydney, advising on property, infrastructure and environmental projects.

Since her return to Christchurch her work has included property developments,

earthquake recovery matters and district plan changes.

David Pedley is stepping down from his partnership role with Adderley Head.

David will remain as Special Counsel for the firm on a part-time basis.

Veronica Cress joins Chen Palmer Partners Veronica Cress has joined Chen Palmer Partners as special counsel. She has 20 years’ litigation experience in New Zealand and the Asia-Pacific region. Before joining the bar she was a partner for five years at DLA Piper New Zealand and was a member of the firm’s insurance litigation team for 10 years.

DG Law Ltd appoints new director Auckland firm DG Law Ltd has appointed Kelly McCullough as a director. Kelly was admitted as a barrister and solicitor in February 2005 and joined the practice in September 2017. She has extensive experience in property, business and commercial law, estate planning and administration, relationship property and trusts.

Karen Stevens to chair INFO Network New Zealand’s Insurance and Financial Services Ombudsman, Karen S t eve n s , h a s b e e n elected Chair of the International Network of Financial Services Ombudsman Schemes (INFO Network). Karen will take over the role in December 2017 for two years. The INFO Network is the worldwide association for financial services ombudsmen– independent and impartial out-of-court bodies that resolve complaints brought by consumers (and, in some cases, small businesses) against banks, insurers and/or other financial services providers.

7

P E O P L E I N T H E L AW · O N T H E M O V E

PEOPLE IN THE LAW

ON THE MOVE

Royal Society honour for Mark Henaghan University of Otago law Professor Mark Henaghan has been elected as a Fellow of the Royal Society Te Apārangi.

The citation says he is New Zealand’s leading family law scholar, who has had a major impact on the judicial system, legislative reform and legal practice in New Zealand. Professor Henaghan is one of 16 researchers and scholars elected as Fellows. Being made a Fellow is an honour that recognises true international distinction in research and scholarship. Fellows can use the post-nominal “FRSNZ” after their name to indicate this honour.

Gold Award for Jo Copeland Simpson Grierson HR Director Jo Copeland was jointly awarded the Gold Award with Lion NZ at the YWCA Equal Pay Awards in Auckland on 9 November. The awards were launched in 2014 to recognise best practice among business leaders who are on the journey towards equal pay. Ms Copeland was awarded a special individual commendation for her work in moving the firm to a 0% gender pay gap for the last three years.

Lawyer new Takeovers Panel Chief Executive Andrew Hudson has been appointed Chief Executive of the Takeovers Panel, effective from 26 October 2017. Mr Hudson has been the Panel’s General Counsel. Before joining the Panel in 2011 he was a corporate lawyer in private practice. He takes over from Margaret Bearsley, who has taken up a new role after six years as Panel Chief Executive.

New RMLA officers appointed Woodward Street Chambers barrister James Gardner-Hopkins has become President of the Resource Management 8

LawTalk publishes information free of charge about appointments, awards and other changes in New Zealand’s legal profession. Please send your contribution to editor@lawsociety.org.nz along with a high-resolution JPEG photo. Brevity is key and material received may be edited – three to four sentences without superlatives is the ideal format.

Law Association (RMLA). Admitted in January 2002, he specialises in resource management, environment and planning law, and Māori legal matters. Mary Hill, a partner of Cooney Lees Morgan has been appointed RMLA Secretary, and MinterEllisonRuddWatts partner Rachel Devin has been appointed Treasurer.

New solicitors at Wynn Williams Wynn Williams has promoted two staff to Solicitor.

Courtney Holmes was admitted as a barrister and solicitor in October 2017 and is a member of the Christchurch Dispute Resolution team. James Anson-Holland was admitted as a barrister and solicitor in October 2017 and is a member of the Christchurch Dispute Resolution team.

Myriam Mitchell joins Copeland Ashcroft Law Myriam Mitchell has joined the Hastings office of Copeland Ashcroft Law as a senior associate. She specialises in employment and health and safety law and also has a background in insurance and dispute resolution. Admitted as a barrister and solicitor in February 2007, she has moved to Copeland Ashcroft after practising in Auckland.

Janine Stewart wins Women in Property Award Janine Stewart, a partner at MinterEllisonRuddWatts has won the Auckland Resene Women in Property Award at the second annual Auckland Property People Awards. The awards were presented on 27 October 2017 by the

Property Council New Zealand’s Auckland branch. The Women in Property Award celebrates women in Auckland’s property industry who achieve outstanding performance, and demonstrate excellent skills and commitment to leadership.

Ros Webby now Dundas Street partner Ros Webby has been promoted to partner at Wellington employment law firm Dundas Street after joining the firm at its inception in 2013 as a senior associate. She is a specialist employment lawyer with over 20 years’ experience, having worked in-house for Wellington City Council and then for eight years at EMA Central. She moved to Christchurch in 2006 as South Island Human Resources Manager with Fairfax New Zealand Ltd and then to a role as senior solicitor in the Palmerston North office of Business Central.

Larna Jensen-McCloy appointed to Webb Farry partnership Larna Jensen-McCloy has been promoted to partner at Dunedin firm Webb Farry. Larna is a litigator with particular experience in complex relationship property matters, involving trust and company assets, claims against trusts and estates and general civil litigation.

Admitted as a barrister and solicitor in May 2003, she has expertise in relation to the Protection of Personal and Property Rights Act and holds various Court-appointed roles.

Tax reform proposal wins lawyer award In-house Treasury lawyer Matt Woolley was co-winner of a Tax Policy Scholarship

O N T H E M O V E · P E O P L E I N T H E L AW

Charitable Trust competition which invited tax professionals aged under 35 to submit proposals that outline a significant reform of the tax system. Matt shared $7,000 with Talia Smart from IRD. His proposal discussed a fully integrated tax system that attributes all company income to shareholders. Under that approach, businesses would pay tax on behalf of shareholders based on their marginal rates.

Rhodes Scholarship for law graduate Margot Gibson, 22, from Christchurch is one of three New Zealanders to be awarded Rhodes Scholarships for post-graduate study at the University of Oxford.

Margot graduated from the University of Canterbury this year with a LLB(Hons) and BA in political science and history. She is currently undertaking an internship with New Zealand’s Permanent Mission to the United Nations in Vienna. At Oxford she will study a MPhil in international relations, focusing on recent laws allowing states to revoke a person’s citizenship if they are suspected of travelling overseas to become a foreign fighter, and have dual citizenship.

Hauraki Gulf Law promotes Megan Price Megan Price has been appointed associate at Hauraki Gulf Law, Waiheke Island.

Megan graduated from University of Southern Queensland in 2013 and was admitted to the New Zealand Bar in 2016. She specialises in litigation, family and property law and is an approved supervised provider of legal aid services in the areas of civil, family and criminal law.

in commercial, corporate, finance and property law matters and is assisting with litigation in all those areas. Helen spent five years in London and joined K3 Legal upon her return to New Zealand in 2013. She also lectures part-time at Unitec in commercial law and business entities.

Julie Ding has been made an associate.

Fluent in English and Mandarin, she joined K3 Legal in July 2015 as part of the litigation team after working primarily in criminal, family and civil litigation. She has appeared in the District and High Courts as lead and junior counsel on various civil, commercial and family disputes and is also an approved criminal legal aid provider.

Joy Yan has been made an associate.

Joy was admitted as a barrister and solicitor in August 2012 and has worked at K3 Legal since early 2015. Her areas of expertise include employment, immigration, commercial business and property acquisition. She also lectures part-time at Unitec on employment relations and legislation.

Pipitea Chambers established in Wellington Christopher Stevenson and Elizabeth Hall have established Pipitea Chambers i n Th o r n d o n Q u ay, Wellington.

Christopher Stevenson specialises in criminal law and appears as defence counsel in serious trials. He is also a senior appellate

lawyer – appearing in the Court of Appeal, Supreme Court and Privy Council. Christopher is experienced in proceedings before the Coroners Court, professional disciplinary tribunals, and has conducted complex civil litigation. Christopher is a member of New Zealand and American defence lawyers associations and has presented on behalf of the New Zealand Law Society.

Elizabeth Hall specialises in criminal law. She has appeared in all courts within the New Zealand jurisdiction including the Privy Council and the Supreme Court.

Elizabeth is a contributing author to a leading criminal law text, is a faculty member of the Litigation Skills programme and a committee member for NZLS Wellington branch and the Criminal Bar Association. Elizabeth has been the sole prosecutor for Wellington for the SPCA since 2010 on a pro-bono basis.

Jo Hughson specialises in professional regulation, complaints and discipline, health law and civil/administrative law litigation. Jo has many years’ experience in professional disciplinary litigation including as a prosecutor, and as counsel in associated judicial review and appeal proceedings. She has been the Chair of the Social Workers Complaints and Disciplinary Tribunal since 2015 and chaired Complaints Assessment Committees under the Real Estate Agents Act 2008 from 2009 to 2011.

Julia Spelman of Ngāti Hikairo descent, is an employed barrister to Elizabeth Hall.

Graduating with a first

Changes at K3 Legal Auckland firm K3 Legal has made three appointments to its senior ranks.

Helen Edwards has been appointed a director. She has 14 years of experience in New Zealand and the United Kingdom and specialises

Legal Accounting Bureau provides comprehensive, accurate, efficient and timely management of solicitors’ trust accounts.

Outsource the management of your firm’s trust account. Either come to us or we can come to you remotely.

· Save time and money · Always know your trust account is balanced and your month end certificates are filed on time · Our service is completely secure and confidential · Trusted professionals with over 20 years’ experience · 62 law firms currently use our services

Kathy Kell kathy@accountingbureau.co.nz Ph 09 444 1044 Fax 09 929 3203 www.accountingbureau.co.nz

Powered by juniorPartner.

Practice Management software you can trust.

9

P E O P L E I N T H E L AW · O N T H E M O V E

PEOPLE IN THE LAW

ON THE MOVE

class honours degree in kaw, Julia was admitted to the Bar in 2012. After two years as a Judge’s clerk, Julia worked on criminal justice issues overseas before returning to New Zealand to work as a defence lawyer. Julia is the Chair of JustSpeak, a youth-based criminal justice advocacy organisation.

Peter Ross has practised law in the Wellington region since being admitted to the bar in 2011, and regularly appears in all courts. He specialises in criminal law, and has a successful trial and appellate practice. Peter also has experience in Family Court and civil litigation.

Charlotte Sygrove appointed to new role Charlotte Sygrove has been appointed Technical Assistant – Governance at Fonterra Co-operative Group Ltd. She will provide governance and strategy support to senior executives within Fonterra. After

10

graduating LLB/BA from Otago University in 2011 Charlotte was admitted in 2012. She joined the in-house legal team at Fonterra after four years at Russell McVeagh with experience in the Corporate Advisory and the Environmental, Planning and Natural Resources team.

Appointments at Anthony Harper Anthony Harper has announced a number of new appointments.

Annelies McClure has joined as Special Counsel, based in Wellington. Her expertise is in the interpretation and application of the Overseas Investment Act 2005 and she has significant public sector knowledge and experience. Annelies was admitted in 1990 and worked in private practice before joining the public sector.

Kate Morrison joins Anthony Harper’s public law team in Auckland as a senior associate. She has a background in public and regulatory law and commercial litigation.

Before joining Anthony Harper, Kate was at a boutique litigation firm. Kate was admitted in 2008 and began her legal career as a Judge’s clerk at the Auckland High Court.

Luana Nickles recently returned from Australia to join the employment team in Auckland as a senior associate. She has experience in all areas of employment law including acting in industrial relations disputes and advising on discrimination and health and safety matters. Admitted

in 2006, Luana worked most recently at a top-tier Australian firm where she acted in a number of high-profile disputes.

Bridget Riley has joined the Auckland office in a newly created position as Special Advisor (Tax). She has over 20 years’ experience in two of the ‘Big 4’ accounting firms and works with businesses on tax planning.

She has a particular focus on international tax assisting both in-bound businesses and New Zealand owned businesses expanding off-shore.

Matt Smith joins the firm’s corporate advisory team as a senior associate. Based in Auckland, Matt will focus on advising technology, fintech and emerging ‘start-up’ companies. Matt was admitted in 2007 and has worked at one of New Zealand’s largest firms and internationally in London.

Natasha Razak has joined the corporate advisory practice in Christchurch as an associate. She has worked internationally in toptier law firms and has experience in a broad range of banking law, with a commercial focus, including cross-border leveraged buy-outs, acquisition finance and restructuring transactions.

NZ winners at Asia Women in Business Law awards Two New Zealand firms were winners at the seventh annual Euromoney Legal Media Group Women in Business Law Awards on 9 November. Russell McVeagh won the firm award for best gender diversity initiative by a national firm.

MinterElllisonRuddWatts won the country award for New Zealand.

We are thrilled to announce the arrival of John Farrow as a partner at Anderson Lloyd leading our employment team.

With extensive experience across New Zealand, and particularly the South Island we are thrilled to have John join our Dunedin team.

This reinforces our commitment to grow in support of our clients nationally and also our commitment to maintaining a thriving Dunedin practice.

S U B J E C T M AT T E R E X P E R T S

Asking for help is a sign of strength lawsociety.org.nz/practising-well

The College is recruiting subject matter experts to review and draft content for its award programmes in the following practice areas: • • • • • •

Commercial Property Corporate In-house Family Wills Estates & Trusts

Tasks include: • Reviewing and localising existing content for the NZ jurisdiction • Drafting new module notes and learning activities • Providing guidance on suitable resources to assist with the achievement of specific learning outcomes

E M A I L Y O U R C V T O M A R C U S M A R T I N AT M M A RT I N @ C O L L AW . AC . N Z

www.collaw.ac.nz

N Z L S AT A G L A N C E

NZLS AT A GLANCE

From the Law Society

K

ia ora koutou, New Zealand’s lawyers can be found in over 4,400 workplaces around the country. Some have many lawyers; others have a single lawyer. Some of the workplaces are dedicated to providing legal services while others are non-legal businesses, organisations or government departments. All have the purpose of bringing together people of all ages, ethnicities, genders and viewpoints into a shared space for a (usually) common purpose.

There have been many encouraging developments this year around diversity and respect for others in New Zealand’s legal workplaces. New Zealand law firms and legal teams have received national and international awards and committed to a wide range of measures with the ultimate objective of ensuring the erosion and removal of social and other barriers hindering the opportunities for everyone involved in delivering legal services. We still have a way to go, but it is immensely heartening to see how our profession is embracing this mood for change.

12

There is one area, however, which has received relatively little attention in the specific context of New Zealand’s legal profession.

It has become a constant focus in the wider world in the last few years and particularly in recent months with the revelations about Harvey Weinstein and other entertainment industry men. That is, of course, the harassment of one person by another who feels they are protected by the fact that they are in a position of power or influence over the other.

We are committed to supporting the removal of barriers to opportunity which currently exist by virtue of a person’s gender, ethnicity or sexual orientation.

This will only succeed if we all also affirm and accept the right of everyone in our workplaces to be free from sexual harassment.

In an hierarchical environment where workplace wellbeing, remuneration, promotion and advancement are dependent on the decisions and input of those in a position of power, it is an affront to human rights if that is abused. As a profession we act for others who have experienced sexual harassment. But as a profession we must also look at ourselves and agree that any harassment in our workplaces is absolutely unacceptable.

This issue of LawTalk contains an article which gives the experiences of a New Zealand lawyer and the harassment she underwent. There was no physical violence or assault. However, she describes the serious impact it had on her and how hard it was to know how to deal with it. It is a powerful piece of writing and it should be read by all lawyers.

In publishing the article we have departed from the usual practice of insisting that the author of all contributed articles is clearly identified. The writer of the article we have entitled “Sexual harassment in the NZ legal workplace”

has chosen to call herself A New Zealand Lawyer. Her contribution was sent to the Editor of LawTalk with a covering letter which asked that we publish it to help draw attention to the issues that women face in the law. It also requested anonymity and we have no hesitation in providing that in this instance.

Also in this edition is a practical guide for summer clerking by Katie Cowan. The tips are designed for summer clerks but could equally apply to anyone starting out in law. It refers to the pressures for the clerks and urges them to reach out for help and support. As one who has been in the clerks’ shoes she urges us not to put up with things alone. There are EAP schemes in many firms which offer assistance and in particular she notes the presence of the NZLS Friends’ Panel as an effective resource for guidance and assistance. She has found the people on the panel “discreet, compassionate, wonderful”. Access to the panel is via the Law Society’s Practising Well resources on its website.

At the end of last year I encouraged people to be kind to each other, especially in this busy, often frantic, time leading up to the end of the year. At the risk of being repetitive I say it again: be kind – it costs little but can have a bit impact.

Tau Hou hari!

Best wishes for the New Year Kathryn Beck President, New Zealand Law Society

Publication of LawTalk and LawPoints The next issue of LawTalk will be the February 2018 issue, published on 31 January 2018. The final 2017 issues of the weekly e-newsletters LawPoints and NZLS Weekly will be sent on the evening of 14 December. The first issues in 2018 will be sent on 25 January.

N Z L S AT A G L A N C E

New Zealand Law Society reports The New Zealand Law Society is required to present an annual report to the Minister of Justice on the exercise of its regulatory activities. The report for the year to 30 June 2017 has been prepared and sent to the Minister. It will be made available on the Law Society’s website as soon as it has been tabled in the House of Representatives, with the link also carried in the next available issue of the weekly newsletters LawPoints and NZLS Weekly.

The New Zealand Law Society has also prepared a report to members on its membership and representative activities. The report covers 2017 and is available on the Law Society website this month. All lawyers who have elected to be members of the New Zealand Law Society will be sent an email with a link to the report.

Immigration NZ Complaints policy feedback NZLS has told Immigration New Zealand that it supports the objectives of its new Complaints and Feedback Policy and Process. This was introduced in June 2017 and NZLS provided comments for a post-implementation review. It noted that a six-month cut-off for complaints seems unnecessarily strict, and suggested some changes could be made to ensure the Complaints Feedback Team in its triage function takes responsibility for promptly explaining to complainants that their complaint is out of scope but that they might have appeal or reconsideration options.

AML/CFT annual report form redraft needed The annual report form in the first batch of proposed AML/CFT regulations needs to be redrafted, NZLS has told the Ministry of Justice. It says the form – which will need to be completed by the majority of New Zealand’s lawyers – is poorly constructed with unclear terminology, repetitious and takes a “one size fits all” approach. NZLS says the proposed annual report also includes questions and information not relevant to legal practice and which lawyers are likely to find very difficult to understand and respond to. It has offered to work with ministry officials to draft an annual report which is designed for lawyers.

Relationship property report highlights industry and social issues The New Zealand Relationship Property Survey 2017 provides many interesting insights into current legal and practice issues of concern to family lawyers, NZLS Family Law Section chair Kirsty Swadling said in a joint statement on release of the survey. The survey was produced by Grant Thornton New Zealand and the Family Law Section (see page 23 for some of the key findings). Ms Swadling noted that the survey coincided with the launch of the Law Commission review of relationship property law. She said around 60% of responding practitioners sought greater certainty around the interface between relationship property law and trust law. “This finding is timely given the review of relationship property law together with current trust law reforms under consideration.”

Chief Justice asks Law Society for reminder on junior counsel Chief Justice Sian Elias wrote to the NZLS President to ask for practitioners to be reminded of their responsibilities to ensure that junior counsel hold current practising certificates or else to seek appropriate dispensation. She said the Court of Appeal became aware recently that junior counsel appearing in a case did not hold a practising certificate. Dame Sian said unless dispensation has been given by the court, it is not appropriate for senior counsel to appear with someone who does not hold a practising certificate. NZLS drew this to the attention of practitioners through information posted in the weekly LawPoints and NZLS Weekly e-newsletters and an item on the NZLS website.

Law Society Canterbury Library The New Zealand Law Society Library, Canterbury has moved from the Law Courts Building in Durham Street, Christchurch, to the new Justice and Emergency Services Precinct.

The library opened for business at its new location on 1 December.

13

COURTS

Court and Tribunal hours over the 2017-18 Christmas and New Year period Urgent Family Court applications Family Courts will provide a national service for urgent applications over the Christmas and New Year holiday period.

Urgent applications will be dealt with via the National eDuty platform. Court staff and duty judges have been allocated to deal with applications on the following days: MON

TUE

WED

THU

FRI

CLOSED

CLOSED

OPEN

OPEN

OPEN

25 Dec 26 Dec 27 Dec 28 Dec 29 Dec CLOSED

1 Jan

CLOSED

2 Jan

OPEN

3 Jan

OPEN

4 Jan

OPEN

5 Jan

All urgent Family Court applications are required to be submitted to the registry by 2pm on the days above in order for them to be processed. Any applications received after that time will be considered the following day.

Senior Courts All courts and tribunals have emergency contacts available over the holiday period.

Supreme Court Closed: 3pm, Friday 22 December Open: 9am, Monday 8 January Court of Appeal Closed: 3pm, Friday 22 December Open: 9am, Wednesday 3 January High Court (all locations) Closed: 5pm, Friday 22 December Open: 9am, Thursday 4 January

District Court All District Court locations will close at 5pm, Friday 22 December, unless gazetted hours allow the registry to close earlier in the day. District Court locations that are gazetted to close earlier are: 3pm at Taihape and Taumarunui, and 4pm at Ashburton, Dannevirke, Gore, Morrinsville, and Westport.

District Court locations will reopen in January 2018 on various dates, as listed below: 14

9am, Wednesday 3 January: Auckland, Christchurch, Dunedin, Gisborne, Hamilton, Hastings, Hutt Valley, Invercargill, Kaikohe, Levin, Manukau, Masterton, Napier, Nelson, New Plymouth, North Shore, Palmerston North, Porirua, Queenstown, Rotorua, Tauranga, Waitakere, Wellington, Whakatane, Whanganui, Whangarei 9am, Thursday 4 January: Blenheim, Greymouth, Timaru 9am, Monday 8 January: Dannevirke, Hawera, Huntly, Kaitaia, Morrinsville, Papakura, Pukekohe, Taumarunui, Taupo, Thames 9am, Monday 15 January: Alexandra, Ashburton, Gore, Tokoroa, Taihape, Wairoa, Westport The following courts are Hearing Courts.

They will not be open over the Christmas and New Year’s period, and will resume hearings as rostered in the New Year: Chatham Islands, Dargaville, Kaikoura, Marton, Oamaru, Opotiki, Ruatoria, Te Awamutu, Te Kuiti, Waihi, Waipukurau.

Arrest Courts The District Court Rules allow for arrest courts to be held over the Christmas and New Year holiday period as required.

Arrangements will be made locally by individual courts to process arrests over the holiday period.

Any persons arrested over the holiday period will be brought to the court for the initial appearance. This includes those arrested on new charges, on warrant, or for breach of bail. If bail is sought and it is not within jurisdiction of the judicial officer presiding at the first appearance to deal with, then any remand in custody (unless there is consent otherwise) must be on the next non weekend/statutory holiday day, when the bail application can be dealt with via AVL from the prison (or police station) to the nearest or most convenient court where a judge is rostered to sit.

Urgent Harmful Digital Communications Act applications Judges will be available to deal with any urgent applications filed under the Harmful Digital Communications Act 2015 (HDCA) on 27, 28, and 29 December.

Electronically Monitored Bail Applications The following provides for the timeframes for filing and processing of Electronically Monitored (EM) Bail applications prior to and after the Christmas break.

The Department of Corrections EM Bail Team have confirmed the dates for the filing and processing of EM Bail applications as follows: The last date for filing EM Bail applications to be heard this year will be Wednesday 6 December 2017 for the adult jurisdiction, and Wednesday 13 December 2017 for the youth jurisdiction. This makes Wednesday 20 December 2017 the final day for all EM Bail hearings to be heard. The only exception to this will be application hearings which have been adjourned from a previous hearing date. Adjourned hearings can be heard up to Thursday 21 December 2017.

The first date for hearings of any existing EM Bail applications (filed prior to 1 December 2017) adjourned from 2017 into the New Year will be from Wednesday 3 January 2018.

The first date for hearing new applications filed in 2018 can be scheduled to be heard from Wednesday 10 January 2018 for the youth jurisdiction, and Wednesday 17 January 2018 for the adult jurisdiction.

These applications need to have been filed in court and received by the EM Bail Team

by Wednesday 3 January 2017.

If there are any queries regarding the above timeframes, please don’t hesitate to contact the Electronically Monitored Bail Team, on 0800EMBAIL or embail@corrections.govt.nz

POSTGRADUATE AND PROFESSIONAL PROGRAMMES

APPLY NOW FOR 2018 STUDY Learn more and apply at victoria.ac.nz/postgraduate-law To discuss your options, email law-postgraduate@vuw.ac.nz

C O MM E R C I A L L AW · U P D AT E

UPDATE

C O MM E R C I A L L AW

Dealing with the Commerce Commission Voluntary or involuntary?

BY JOHN LAND An important consideration for lawyers in advising clients subject to Commerce Commission investigations is how to deal with requests made by the Commission for the client to provide information on a voluntary basis or to attend a voluntary interview with the Commission.

Depending on the particular case there can be significant advantages to a client in either complying with the voluntary request or, alternatively, in asking that the Commission instead turns its request into a formal and compulsory notice.

This article discusses the pros and cons of proceeding on either basis.

There are a number of considerations. These include a client’s confidentiality and privacy obligations to other parties, whether information sought by the Commission might also be of interest to an overseas regulator, the extent of a client’s concerns about the use of information in potential penalty proceedings, the desire for flexibility in any interview before the Commission and the desire of some clients to involve not just Commission staff but a Commission member in any interview.

To the extent that a compulsory notice is given to a client, lawyers should be aware of two court decisions: Perpetual Trust Ltd v Financial Markets Authority (No 3) [2012] NZHC 2307 and Loughlin v Director of the Serious Fraud Office [2017] NZHC 1847.

16

The first decision may impose some constraints on the Commission’s power to make demands for information/ documents in a section 98 notice. The second decision constrains the Commission’s right to limit who appears as counsel in relation to a compulsory interview of a client.

Voluntary or compulsory?

It has become increasingly common for the Commerce Commission in investigations to provide very detailed notices to provide documents and information, but on the basis that the recipient is asked to respond on a voluntary basis. This is done instead of a formal (compulsory) notice under s 98 of the Commerce Act 1986 (or s 47G of the Fair Trading Act 1986) to provide such documents/information.

Equally, it is also common for the Commission to ask that a client, or employee of a corporate client, attend the Commission’s offices for a detailed interview on a voluntary basis rather than pursuant to a formal (compulsory) s 98(c) (or s 47G(1)(c)) notice to attend an interview.

The Commission’s perception is that there are less restrictions as to its ability to use information that has been obtained by it on an informal basis rather than pursuant to a compulsory notice (Commerce Commission, Competition and Consumer Investigation Guidelines, December 2015, para 107).

Many companies and individuals choose to cooperate with the Commission’s voluntary requests. They realise, of course, that a refusal or failure to comply with a voluntary request may simply lead the Commission to exercise its compulsory powers.

What then are the implications of this informal approach by the Commission? If a choice is available, is it better or worse for clients to provide information/ documents or attend interviews on an informal and voluntary basis, or to do so pursuant to a compulsory notice?

The answer is that it depends. There are potential advantages and disadvantages to both informal and formal approaches from a client’s point of view.

Advantages of formal approach In some circumstances, a client may prefer to insist on a compulsory notice so as to avoid breaching confidentiality obligations owed to third parties in relation to information covered by the notice. Where information is provided pursuant to a s 98 notice the client is required by law to provide the information.

Similarly, a client may prefer to insist on a formal s 98 notice so as to avoid potential privacy issues arising from disclosure of information concerning identifiable individuals.

Another potential advantage of insisting on a formal s 98 notice arises particularly in the situation of an interview before the Commission where a client wants to ensure that answers given by the client will attract the protection of s 106(5) of the Act. Section 106(5) suggests that answers given to a “question put by or before the Commission” cannot be used in a prosecution or penalty action against the party giving the answers.

The Commission’s interpretation is that the section does not apply to an informal interview. Presumably, the Commission’s view is that an informal notice or interview does not involve a “question put by or before the Commission”. That interpretation may be subject to challenge – why is a question by a duly authorised employee of the Commission not a question by the Commission?

In any event, regardless of whether the Commission’s view is correct, the protection of s 106(5) can only be made certain by insisting that an interview be conducted pursuant to a formal s 98 notice.

A further perceived advantage of insisting that an interview take place on a compulsory basis can arise from the fact that a formal interview will take place with a Commission member present (as well as Commission staff ). In a formal interview, the Commission member will not normally be the principal interviewer but will usually have some questions of their own and will have a role in ensuring the procedural fairness of the interview. There may be situations where a client perceives that there is an advantage to having a Commission member actually present at the interview.

The client may feel that the presence of a Commission member at the interview ensures that Commission members will thereby obtain a direct (and more complete) understanding of the client’s evidence. By contrast an informal interview will only have Commission staff present.

By necessity this means that the client’s evidence would only be related to Commission members indirectly through Commission staff.

Advantages of informal approach One downside with the compulsory provision of information under s 98 is that it becomes subject to potential release to recognised overseas regulators as a consequence of the Commerce (International Co-operation, and Fees, Amendment) Act 2012 (See further Land, “New Perils in providing information to the Commerce Commission”, LawTalk 839, 11 April 2014).

The co-operation agreements currently in place with recognised overseas regulators can be found on the Commission’s website.

They include agreements by the

Commission with competition regulators in Australia (entered into in 2013) and Canada (entered into in 2016).

Accordingly, if a client is concerned that information provided to the Commission may potentially prejudice the client’s position if disclosed in other jurisdictions (particularly Australia and Canada) that might be a reason to prefer providing information on a voluntary basis rather than pursuant to s 98.

In relation to interviews by the Commission, another potential advantage of proceeding on an informal basis is that a legal adviser attending the interview with the client has more ability to intervene, and even to call a halt to the interview at any time.

By contrast, under a compulsory interview the person being questioned cannot refuse to answer questions. In fact it is an offence to do so, and the Act further provides that the person being questioned has no privilege against self-incrimination.

Another potential advantage of an interview proceeding on a voluntary rather than compulsory basis is that some interviewees may be less nervous in an informal setting.

What if you don’t have a choice?

Sometimes, of course, a client doesn’t have a choice.

The Commission simply serves a s 98 notice and the matter proceeds on a compulsory basis.

It is worth being aware of a couple of court decisions which may put some limits on the Commission’s exercise of its compulsory powers. The first decision may limit the Commission’s ability to make unreasonable demands for information/documents in a s 98 notice. The second decision limits the ability of the Commission to seek to restrict who appears as legal counsel at a compulsory interview.

Putting limits on information requests In practice, the Commerce Commission is usually willing to engage with recipients of s 98 notices (or informal document requests) on questions of clarification of information requests, negotiation of the scope of requests where they may be unduly burdensome, and the negotiation of time limits where the time required to comply is not realistic.

However, should that not occur, the case of Perpetual Trust Ltd v Financial Markets Authority (No 3) [2012] NZHC 2307 suggests that judicial review could potentially be available.

In the Perpetual Trust case, Heath J held that

compulsory notices issued by the Financial Markets Authority were unlawful because they failed to specify a time within which the information of documents should be produced or supplied. Instead the notices required the immediate supply of the information and documents. The notices in question were given under s 25 of the Financial Markets Authority Act 2011 which is very similar to s 98.

Heath J commented that the nature and extent of the information and documents required was such that no reasonable recipient could have supplied it “immediately”. He also noted that implicitly s 25 “anticipates that the time for compliance is fixed by reference to the nature and quantity of information or documents required”.

The notice should also provide the recipient with enough information to make clear what information or documents must be produced or supplied.

The judgment of Heath J suggests that there is scope for challenge to a s 98 notice where the notice is not 17

C O MM E R C I A L L AW · U P D AT E

clear or where it imposes an unreasonable time for compliance having regard to the extent of the information and documents specified in the notice.

Restricting the choice of legal counsel at the interview In relation to compulsory interviews of clients, the Commission accepts that a client will be entitled to have counsel present at the interview.

It is worth noting, however, the recent decision of Venning J in Loughlin v Director of the Serious Fraud Office [2017] NZHC 1847.

In this case, Venning J held in relation to a compulsory interview under s 9 of the Serious Fraud Office Act 1990 that the director did have an implied power to exclude counsel of choice where the director concluded “on reasonable grounds and in good faith that to allow the particular representation will or is likely to prejudice the investigation”.

That would include a situation where counsel of choice was unavailable and the investigation would be unreasonably delayed, or the investigation could be compromised because of the lawyer’s personal circumstances (such as where the lawyer might be a possible suspect or witness themselves).

However, Venning J also noted a strong presumption in favour of freedom of choice of legal representation. On the facts before him, the judge held that the decision by the director to exclude a particular barrister from attending an interview was not reasonable. The director was particularly concerned that the barrister had attended an interview of another person. However, Venning J considered that the evidence did not support a conclusion that to allow the barrister to represent Mr Loughlin at the interview was likely to prejudice the investigation or the interview process. Venning J accordingly granted judicial review of the director’s decision to exclude the barrister from attending the interview.

The decision in the Loughlin case would also seem relevant to compulsory interviews by the Commission under s 98.

Conclusion If the Commission asks a client to provide information on a voluntary basis or to attend an interview on a voluntary basis it is not a straightforward decision whether to comply or to instead suggest that the body exercise its compulsory powers. There can be advantages to either course of action depending on the factors discussed above.

If the Commission does exercise its compulsory powers, the Perpetual Trust and Loughlin decisions may put some constraints on the Commission’s exercise of those powers.

John Land  john.land@bankside.co.nz is a senior competition law specialist and commercial litigator at Bankside Chambers in Auckland. He was formerly a partner of Kensington Swan for 20 years.

18

UPDATE

M U S I C L AW

‘Eminem’ case throws up some important issues

BY RICHARD FLETCHER As a younger colleague said, it is sometimes surprising how much some people know about music. Also surprising can be how judges can absorb tremendous amounts of technical evidence, terms of art, and even street language, and turn the whole lot into a readable, absorbing judgment that covers a wide range of fields, even if the judgment runs to 132 pages. That is the version without the confidential appendices.

Such was the case with Justice Cull’s decision in Eight Mile Style LLC v New Zealand National Party [2017] NZHC 2603 – known as the Eminem case. The key issue was whether National Party 2014 election campaign music, using music titled Eminem Esque, infringed Eight Mile Style copyright in an Eminem hit, Lose Yourself. The court said copyright was infringed and awarded Eight Mile Style $600,000 damages plus interest. However, it said National Party actions followed professional, commercial and media advice and were not reckless. The question of any third party liability remains open.

Rather than considering all the detail of Justice Cull’s analysis, this article looks from a broader, not always legal perspective.

This writer has no idea whether Her Honour plays or has played a musical instrument or, before the case, could read music. Even if she had these skills, still impressive is how the judgment explores musicology, the nature of music, particularly popular music, and the creative process. It also shows Justice Cull knows something of the difference between a “rift” and a riff, what a back beat is, and how one guitar lick can differ from another.

Comedian John Oliver has had a great deal of fun with the case. His account of aspects of the May trial has a good few lessons for ageing sometime wannabe rockers who appear in court and perhaps try to relive

U P D AT E · M U S I C L AW

some of their (misspent?) youth. This is not to say that any of those in court in this case carried out any of the things this writer did in his younger days – before I went into practice.

Also, it is pretty easy for Oliver – not exactly a youngster himself – to fire a few shots at middle-aged lawyers caught in the rap – or were they really hip-hop – headlights.

Important issues Unlike Oliver, this writer believes the issues in the case are important, particularly from music and intellectual property law perspectives. Also, though students may come across numerous IP cases and music cases, seldom do New Zealand students come across New Zealand music cases, much less music law IP cases, even if there are a fair few IP cases going through the courts.

As the same younger colleague said, the judgment is high-level law at its best, applying broad principles to particular circumstances, using expert evidence along the way. Also, though not exactly bedside reading, it is readable in a manner that, for example, combines musicology and law in an accessible way that may be useful to both disciplines.

For those not familiar with music law, the judgment gives insights into music business and law and how the two interact. People not in the music, broadcasting and entertainment businesses may be surprised at music libraries and tracks designed to sound “like” but be “different to” well-known songs or tunes. That was part of the dilemma surrounding Lose Yourself versus Eminem Esque. Eminem Esque, particularly the title, might, to some seem an extreme example, but there is a wealth of “sound alike” material around, some authorised, some not. The judgment refers to a “Beatle Esque” genre and the range of other “sound alike” material, often used in advertising and for

other purposes. The idea is to create something “similar” that does not breach someone’s copyright. In turn, this may avoid some of the complexities – and costs – of reproducing a well-known artist’s original song or part of it in an ad, film or TV show.

The music world is peppered with all sorts of “copies”. Who has seen the Pink Floyd Experience? Not part of a music library but a legitimate “copy”. Also there are legions of “covers” or sound and lookalike bands, legitimate and otherwise.

Unusual rethinks Sometimes “copiers” do some unusual rethinks. One of this writer’s favourites is the Bossa n’ Stones album, that puts classic Rolling Stones to modern bossa nova beats with female vocalists replacing Mick Jagger. The same crowd produced Bossa n’ with a whole series of other artists. One title I have hesitated about going near is Bossa n’ Ramones: the punk rockers’ I Wanna Be Sedated to a bossa beat just does not seem right somehow. The surprise is that Rolling Stones tunes do translate well.

On the music publishing side there is real sheet music, “fake books” and “real books” that, apparently, legitimise what originally were fake

The idea is to create something “similar” that does not breach someone’s copyright. In turn, this may avoid some of the complexities – and costs – of reproducing a well-known artist’s original song or part of it in an ad, film or TV show.

books. This is before you get into more familiar unlawful CD copies, downloads, etc, etc.

Then there is the issue of what, in musical terms, is an original work. Both musicology experts in the Eminem case described how “new” musical works often draw on a wealth of older material. This writer has spent quite a bit of time, particularly with young musicians, trying to define what genre their work might fit into or who their musical influences were. Sometimes the response was they did not have any and they were playing New Zealand music – whatever that is (!). It is comforting to have experts lay the issues out in a New Zealand judgment, even if their views on some things clearly differed.

“Borrowing” part of the creative picture Perhaps also this writer’s age may be a factor. Growing up in the time of progressive rock where Emerson, Lake and Palmer, Yes and numerous others raided classical music to an almost ridiculous extreme, one becomes well aware that “borrowing” other people’s work is part of the musical creative picture. More “mainstream” may be jazz players such as Bill Evans and MJQ debts to classical music and Shostakovich’s crossover in the other direction with his jazz suite. In recent times, with albums such as Impulsive and the Verve Remixed series, older jazz has been “remade” with electronica or acid jazz overlays.

And, as the judgment notes, many 60’s rockers recognised their debt to black American blues players. One is tempted to quote the analysis from National Lampoon’s Goodbye Pop but suspects that is better left on the album.

Getting back to the judgment, how the experts drilled down and the techniques they used to compare Lose Yourself and Eminem Esque, for this writer anyway, made fascinating reading. So did how Justice Cull considered this and the process and time the three writers who made up Eight Mile Style spent creating Lose Yourself.

That included Mr Bass’s in-court demonstration of the guitar riff and explanation of why it was different. And if you thought Lose Yourself sounds like Led Zeppelin’s Kashmir or that La Bamba sounds like Twist and Shout, the judgment gives you further insights.

Judges sometimes get accused of being out of touch with current thinking. David Pannick’s Judges had a good deal to say about this (OUP, Oxford, 1988). The Eminem judgment is one example of how things may have improved since 1988.

Part of Richard Fletcher’s practice involves music law.

He also used to be a radio announcer, has a large vinyl and CD collection which he plays on vintage stereo gear, and he occasionally plays the guitar. On several occasions he juniored to the then Helen Cull QC.  richard.fletcher@woodsfletcher.co.nz 19

UP H UD MAT A NE R· I FGRHATNSC·HUI SPIDNAT G E

UPDATE

HUMAN RIGHTS

Lifting our human rights game

BY LYNDA HAGEN New Zealand’s parliamentary scrutiny of its international human rights obligations will be evaluated in a new Law Foundation-backed study.

This follows criticism that New Zealand is lagging behind countries such as the United Kingdom, Canada and Australia in formally monitoring compliance with human rights treaties.

New Zealand does not have a specialist parliamentary body for considering human rights issues, and proposals for a stand-alone select committee to do the job have been repeatedly rejected in recent years by the Standing Orders Committee.

The co-authors of a 2015 Foundation study on New Zealand’s human rights promotion and monitoring, Professor Judy McGregor of Auckland University of Technology and Professor Margaret Wilson of the University of Waikato, argue that the lack of a dedicated human rights monitoring process has put New Zealand out of step with comparable jurisdictions.

“We have a general compliance obligation under international treaties, but in terms of monitoring specific legislation it’s really totally dependent on NGOs coming in to 20

make submissions,” Ms Wilson says.

“The Human Rights Commission has a role and does what it can; it does a good job. But New Zealand needs a more vigorous, dedicated and impartial process. Most people accept that we have been pretty light on scrutiny.”

Examples of rights removal without proper process included a 2013 amendment to the Public Health and Disability Act, which took away the right of individuals to complain to the Human Rights Commission, and the removal of voting rights for some prisoners. Another was the “Hobbit” legislation that changed the status of employees in the film industry.

The new research by Professors McGregor and Wilson will study the effectiveness of select committees in scrutinising human rights over the next two years, looking specifically at rights protected under the Bill of Rights Act and the International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights.

The authors will consider selected historic examples such as the Health and Disability Act and prisoner voting rights removal mentioned above, as well as five key pieces of new legislation. They will also review models in other countries with dedicated monitoring bodies.

“Overall we want to make an assessment of current practice and recommend what, if any, reforms would enhance the consideration of human rights issues by the select committees,” Ms Wilson says.

“New Zealand’s history and heritage of pioneering and protecting human rights could be enhanced by investigation of how the legislature can better scrutinise bills with rights considerations. The research allows us to assess how much select committees inform parliamentary debate and influence legislative outcomes.”

Shadow Reports The Law Foundation recently awarded two new grants under its 2017 Shadow Reports awards programme, which allows NGOs to report in parallel with official reports on New Zealand’s compliance with human rights obligations under international treaties.

One award, to the Human Rights Foundation of Aotearoa, will provide parallel reports to the UN Committee on Economic Social and Cultural Rights and also to co-ordinate the Joint Stakeholders’ report to the UN Human Rights Council universal periodic review (UPR). In addition, they will lodge a mid-term report commenting on the extent to which the New Zealand Government has implemented recommendations made as part of the UPR in 2013.

The second award was made to Ngā Hau e Whā and Associates, a national disability rights group. They will report in 2018 on New Zealand’s obligations under the UN Convention on the Rights of Persons with Disabilities with a focus on the rights of people with experience of psychosocial disability.

Lynda Hagen  lynda@lawfoundation.org.nz is Executive Director of the New Zealand Law Foundation.

Further information about the Foundation’s grants and awards can be found at  www.lawfoundation.org.nz

U P D AT E · F R A N C H I S I N G

UPDATE

FRANCHISING

Enforcing restraint of trade clauses in franchise agreements

BY DEIRDRE WATSON Franchising is only attractive to franchisors as a method of business expansion if they can retain and exercise control over the use of their brand, their system and the way in which their products and services are to be delivered. Ensuring franchisees are bound by a restraint of trade clause, post termination, is an important feature of the control franchisors perceive that they need to retain over ex-franchisees, as they seek to protect their brand, goodwill and system.

As is well known, contractual provisions imposing a restraint of trade are, prima facie, void and unenforceable. However, where the party seeking to enforce the provision establishes that the restriction is reasonable, it may be enforced.

The party attempting to enforce the restraint must show that there is a protectable (otherwise known as a proprietary or legitimate) interest justifying the restraint, and that the restraint goes no wider than is reasonably necessary to protect that interest. See Brown v Brown [1980] 1 NZLR 484 (CA); Richmastery Ltd v Richmastery (Central) Ltd HC Tauranga CIV-2005-470-951, 24 May 2006.

Four cases that have come before the courts in recent years have shown a robust judicial approach to upholding restraint of trade clauses in franchising. Each case concerned a well-established franchise system and a long-standing franchisee: Video Ezy International Pty Ltd v Red Bond Ltd [2015] NZHC 1636, Skids Programme Management Ltd v McNeill [2012] NZCA 314; [2013] 1 NZLR 1, Health Club Brands Ltd v Colven Botany Ltd [2013] NZHC 428 and Mike Pero (New Zealand) Ltd v Heath [2015] NZHC 2040.

These cases will have left franchisors feeling confident about the enforceability of their restraints, but in this article I suggest that uncertainty still lingers about the enforceability of restraint of trade clauses in the franchising context, particularly in systems where the franchisor

is not growing and therefore has no intention of replacing an exiting franchisee or in systems where the franchise is in a dying phase and by natural commercial attrition, the franchise is slowly receding.

What is a legitimate or protectable interest in franchising?

Probably the best exposition of what is meant by a “legitimate interest” in franchising is set out in the Court of Appeal judgment in Skids Programme Management Ltd v McNeill [2012] NZCA 314.

The Skids (Safe Kids in Daily Supervision) franchise system is a business methodology of after-school services in schools. Franchisees run a standardised after-school care programme from premises leased within a school. It is a successful system, well established, and with

a nationwide presence.

In answering the question, what is the necessary legitimate interest, the Court of Appeal first looked closely at the franchise to see what there was to protect. It found that there were a number of features which the Skids franchise system offered, including its name, and all the goodwill associated with that name.

The court found that there were low barriers to entry for franchisees but noted the evidence of the franchisor that there were various benefits offered to franchisees as follows: “[45] These included: a full-time dedicated franchise support person to assist in training and development; national marketing for the business including the maintenance of a website; regular conferences and meetings; an online enrolment facility; monthly 21

F R A N C H I S I N G · U P D AT E

training opportunities for franchisees and their staff; discounted rates for insurance; and an accounting package for new franchisees. Skids had all the OSCAR accreditation information and had worked out techniques to obtain accreditation.

The fact that the former franchisee had paid a sum for the franchise benefits is not an answer, as the payment was for the use of the franchise benefits for the duration of the franchise, but not thereafter. “[46] Skids franchisees were provided with material including an operation manual, a policy and procedures manual, onsite manuals, a pricing structure, employment documentation, enrolment documentation, and programme modules amongst other things. Materials that were provided were subject to ongoing revision. Specialised material was made available to enable franchisees to obtain CYFS accreditation. While the base material that constituted the inputs to franchise documents was widely available, the standard documents could not have been created without work and thought.”

The cases where the courts have been prepared to uphold restraints, like the Skids case, each involved successful well-established systems with strong brands, systems and a strong network of franchisees.

But not all franchises are like that and so the question arises, what about the weaker franchise systems? By weaker systems I mean those where: • The “business model” and “support systems” have not been updated and (objectively speaking) are of no value or assistance.

• The system is dying because the consumer fad has passed.

• Growth is receding and exiting franchisees are not being replaced.

• The system simply never attracted a good number of franchisees in the first place.

• The system is one where the franchisee had an existing business of the type being operated by the franchise prior to becoming a franchisee.

This question is all the more pertinent when one remembers there are over 600 different franchise systems in New Zealand, each with their own definition of system, goodwill and methodology and each with their own pathway to growth. Not all of them are destined for success. Some will collapse through simply being a fad concept. Others will never reach maturity in that they are unable to attract sufficient franchisees. Others will fail because they are simply not a good investment for their franchisees in that franchisees do not make a reasonable return.

It is these borderline and weaker franchises which are more likely to lead to the question being asked of legal advisers about enforceability of restraints. The 22

franchisee will gradually come to realise that with a system that is shrinking or simply not providing it with an adequate return, it is better off on its own. If it is not bound by a restraint, then the solution can often seem obvious when a capital investment that won’t be returned has been made: de-badge and have a go at making it on your own.

There is some authority overseas to support the proposition that a protectable interest cannot be shown in such weaker system cases.

BB Australia Pty Ltd v Karioi Pty Ltd [2010] NSWCA 347 is one example.

There, Blockbuster, the franchisor, entered into two franchise agreements with the defendant to operate two video outlets in Queensland.

Prior to becoming a franchisee, the defendant was already operating two video stores. At the expiry of the term of the franchise agreement, the defendant simply rebranded and continued to operate its video stores as before. The court found: • The plaintiff had no legitimate interest in the precise location of the stores, given the leases were not in its name, • The defendant had built up its own goodwill in the stores prior to becoming a franchisee; • The plaintiff ’s intellectual property was adequately protected by other protections in the franchise agreement.

There was a similar negative outcome for the franchisor in a Canadian case, MEDIchair LP v DME Medequip Inc 2016 ONCA 168.

In this case the franchisor operated a network of operations that sold and leased home medical equipment and the franchisee had had a franchise located in Peterborough, Ontario, a relatively small town, for about 20 years. The Ontario Court of Appeal refused to enforce a restraint clause because it was demonstrated that the franchisor did not intend to open a franchised store within the restricted territory. The court

concluded that the restraint clause must only protect the “legitimate interest of the franchisor” and could not extend beyond that. The court found that because the franchisor did not intend to open a competing store in that location, it had failed to establish a protectable interest in that territory. The court noted (at [47]) that “by deciding not to operate in Peterborough, [the franchisor] effectively acknowledged that it has no legitimate or proprietary interest to protect within the defined territorial scope of the covenant.”

Conclusion Given the large and ever-growing numbers of franchised businesses in New Zealand (and therefore the growing number of franchises that fail) and the likely continued emergence of restraint of trade disputes, it is more important than ever that the existence of “legitimate interest” should never be assumed in franchise cases, but should however be closely examined on a case-by-case basis.

The diverse nature, size, pathway to growth and extent of development of the many and varied franchise systems in New Zealand necessarily means that a case-bycase analysis of the “legitimate interest” underpinning restraints should always remain the correct starting point when considering the reasonableness of restraints.

It should by no means ever be taken as a given that just because a business is franchised, a franchisor has an easy path to protect its business by a restraint.

Deirdre Watson  deirdre.a.​ watson@xtra.co.nz is a barrister who specialises in franchising disputes. She regularly presents and lectures on franchise issues, appears and acts regularly as counsel in franchising disputes and is a board member of the Franchise Association of New Zealand.

U P D AT E · R E L AT I O N S H I P P R O P E R T Y

UPDATE

New Zealand Relationship Property Survey 2017 W H AT P E R C E N TA G E O F Y O U R OWN CURRENT WORK CONSISTS O F F A M I LY L AW W O R K ?

Accounting firm Grant Thornton New Zealand and the NZLS Family Law Section have released the results of their survey of family lawyers on the trends and issues impacting on their practice of relationship property law and the people they advise.

The online survey, carried out from 22 May to 22 June, is intended to be the first in a two-yearly series which will track developments in relationship property practice. It was completed by 369 lawyers, 66% of whom were female, which was the same proportion as FLS membership.

A full summary of the results is available on the Family Law Section’s website at www.familylaw.org.nz. The following summary highlights some of the key findings of the survey.

IN THE LAST TWO YEARS, HAS Y O U R V O L U M E O F R E L AT I O N S H I P PROPERTY WORK…

W H AT I S T H E A G E R A N G E Y O U H AV E M O S T F R E Q U E N T LY A C T E D F O R I N R E L AT I O N S H I P P R O P E R T Y M AT T E R S OVER THE LAST TWO YEARS?

Up to 25%: 21% 26 to 50%: 11%

Increased: 49%

51 to 75%: 16% 76 to 99%: 27%

Stayed the same: 5%

Less than 30: 2% 30 to 39: 22%

100%: 25%

Decreased: 46%

40 to 49: 60% More than 50: 14%

14%

21%

25%

11% 27%

2% 22%

46%

49%

16%

60%

5%

IN THE NEXT TWO YEARS, DO Y O U A N T I C I PAT E T H E V O L U M E O F Y O U R E X I S T I N G R E L AT I O N S H I P PROPERTY WORK WILL…

W H AT I S T H E M O S T F R E Q U E N T D U R AT I O N O F M A R R I A G E / R E L AT I O N S H I P Y O U H AV E E X P E R I E N C E D I N R E L AT I O N S H I P P R O P E R T Y M AT T E R S OVER THE LAST TWO YEARS?

Up to 25%, 32% 26 to 50%, 21%

Increase: 40%

0 to 9 years: 33% 10 to 19 years: 60%

51 to 75%, 23% 76 to 99%, 18%

Stay the same: 4%

20 to 29 years: 5%

100%, 6%

Decrease: 56%

More than 30 years: 2%

W H AT P E R C E N TA G E O F Y O U R F A M I LY L AW W O R K I S R E L AT I O N S H I P P R O P E R T Y W O R K ?

5% 2%

6% 18%

32%

33%

40% 56% 60%

23% 21%

4%

23

R E L AT I O N S H I P P R O P E R T Y · U P D AT E

PLEASE SELECT THE TOP T H R E E P R O B L E M AT I C I S S U E S T H AT Y O U M O S T C O MM O N LY E N C O U N T E R I N Y O U R R E L AT I O N S H I P PROPERTY CASES

57%

61%

66%

W H AT I S T H E M O S T C O MM O N N E T R E L AT I O N S H I P P R O P E R T Y P O O L B A N D Y O U H AV E PROVIDED ADVICE ON?

18%

17% Other

Equality of arms

Unrepresented litigants

Economic disparity issues

Systemic delay in Family Court

Uncertainty around interface between RP and trust law

Non-disclosure of information

Other

Preservation of the relationship

Children’s interests

Cost to client

Early analysis of entitlement

Timely resolution

Managing client expectations

Quality of advice

Other

Business problems

Stress

Mid-life crisis

Unreasonable behaviour

Alcohol/substance abuse

Domestic abuse

Extra marital affair

Growing apart/out of love

1%

7%

Sections 2D and 13

25% 12%

23%

33%

32% 8%

6%

11%

22% Family strains

18%

24% Financial/money worries

28%

30%

33%

47%

52%

58%

66%

67%

78%

PLEASE SELECT THE THREE MOST C O MM O N R E A S O N S Y O U H AV E S E E N F O R S E PA R AT I O N I N T H E L A S T T W O Y E A R S

W H AT A R E T H E T O P T H R E E A R E A S T H AT Y O U C O N S I D E R I M P O R TA N T I N M A N A G I N G A R E L AT I O N S H I P PROPERTY CASE?

P L E A S E S E L E C T W H I C H O F T H E F O L L O W I N G N E T R E L AT I O N S H I P P R O P E R T Y P O O L B A N D S ( I N C L U D I N G R E L AT E D T R U S T S ) Y O U H AV E P R O V I D E D A D V I C E O N I N T H E PA S T T W O Y E A R S

$500k: 30% $500k to $1m: 41% $1m to $2.5m: 21% $2.5m to $5m: 5%

$500k

76%

$5m to $10m: 2% More than $10m: 1% $500k to $1m

5%

$1m to $2.5m

2% 1% 30%

21%

24

67%

$2.5m to $5m $5m to $10m

41%

79%

More than $10m

36% 20% 14%

U P D AT E · R E L AT I O N S H I P P R O P E R T Y

W H AT AV E R A G E L E V E L O F F E E S D O Y O U T Y P I C A L LY R E N D E R F O R L E G A L A D V I C E ON A SECTION 21 CONTRACTING OUT AGREEMENT (EXCLUSIVE OF GST AND DISBURSEMENTS)?

$0 to $500: 7% $501 to $1,000: 29% $1,001 to $2,000: 41% $2,001 to $5,000: 17%

IN THE LAST TWO YEARS H AV E Y O U I N S T R U C T E D A F O R E N S I C A CC O U N TA N T ?

H AV E Y O U O B TA I N E D C O S T S AT THE CONCLUSION OF A HEARING I N T H E F A M I LY C O U R T ?

Yes: 42% No: 58%

Often: 11% Rarely: 55% Never: 34%

$5,001 to $10,000: 4% No s 21 work: 2%

4% 2% 7%

11%

17%

42%

29%

41%

58% 55% 41%

P L E A S E S E L E C T T H R E E O F T H E F O L L O W I N G R E F O R M S T H AT Y O U C O N S I D E R W O U L D B E M O S T B E N E F I C I A L I N A C H I E V I N G E F F E C T I V E R E S O L U T I O N O F R E L AT I O N S H I P P R O P E R T Y M AT T E R S ? ( C O M PA R E D T O C U R R E N T P R A C T I C E )

Speedier resolution in Family Court

73%

Specialist RP judges/RP tracks in Family Court

67%

Stronger penalties and enforcement for non-disclosure

64%

Formal procedural code for compulsory mediation

30%

Formal procedural code for private mediation

29%

Formal procedural code for use of expert witnesses

11%

Formal procedural code for collaborative law

7%

Formal procedural code for private arbitration

7%

Other

27%

WHICH ONE DO YOU MOST C O MM O N LY U S E ?

W H I C H O F T H E F O L L O W I N G H AV E Y O U U S E D T O B I L L R E L AT I O N S H I P P R O P E R T Y C L I E N T S

Time and cost without cap: 66% Time and cost and premium: 16% Time and cost without cap

78%

Legal aid: 7% Time and cost with cap: 7% Fixed fee: 3% Pro bono: 1% Other: 1%

Time and cost and premium

40%

Legal aid

35%

Time and cost with cap

23%

Fixed fee

20%

7%

3% 1% 1%

7% 16% 66%

Pro bono Other

16% 3%

25

F A M I LY L AW · U P D AT E

UPDATE

F A M I LY L AW

The truth, the whole truth and nothing but the truth…

BY ANNABEL SANDERS

It goes without saying that perjury is greatly detrimental to the effective administration of justice.

Section 108 of the Crimes Act 1961 provides that perjury is an assertion made in judicial proceedings that is known to be false, and made with the intention to mislead. It is considered a serious crime and can result in a penalty of up to seven years’ imprisonment.

It is common in family law matters for the parties involved to give very different versions of the same events – meaning one or both parties are giving a less than accurate version of the truth. Sometimes this is deliberate, sometimes simply a difference in perspective.

It is very rare, however, that a person is actually convicted of perjury as a result of Family Court proceedings. It did occur recently in the Hawke’s Bay case of Nisbet v R [2017] NZCA 476. A father was involved in protection order proceedings initiated by his ex-partner and mother of his child. He swore in an affidavit that he had “never driven with [his young daughter] at any time unrestrained by a child car seat on the road”.

Under cross-examination he at first attempted to deny he had ever driven his child illegally, but later changed his evidence to admit he did sometimes transport her unrestrained on his lap or with her standing. In the Napier District Court, he attempted to place the blame on his lawyer, arguing that he did not get to read the affidavit before signing it and that the false words were his lawyer’s and not his own.

In September, the father was sentenced to 18 months’ imprisonment with no possibility of applying for home detention. One month later, the Court of Appeal substituted this “manifestly excessive” sentence for one of 12 months and granted leave to apply for home detention.

The court noted that the father’s motivation was not for some economic advantage or avoidance of a criminal sanction, but his desire to secure access to his young daughter; no significant harm was done to any innocent party; and while the perjury was premeditated, the evidence was eventually corrected halfway through the hearing. The judges therefore considered the offending to be at the bottom end of the spectrum of offending of this kind, and observed that community-based sentences have been deemed appropriate in similar cases.

26

The only significant case preceding Nisbet v R was the Court of Appeal decision in Skelton v R [2011] NZCA 35. The perjury committed in that case was of a distinctly more serious nature, when a mother involved in a custody battle with her ex-partner gave falsified paternity tests as evidence in paternity proceedings. The test results excluded the possibility of her ex-partner being the biological father to their son. The mother did not plead guilty until the day before the trial, which was nearly two years after being charged. The court dismissed an appeal against a sentence of two years and eight months’ imprisonment with no possibility of home detention which had been imposed in the Family Court (R v Skelton DC Hamilton,

It is common in family law matters for the parties involved to give very different versions of the same events – meaning one or both parties are giving a less than accurate version of the truth. Sometimes this is deliberate, sometimes simply a difference in perspective.

CRI-2008-019-7272, 1 October 2010).

There Judge Tompkins had observed that “perjury can range, in its circumstances, between frightened people who perjure themselves for misguided but perhaps understandable reasons, through to serious cases, such as this, involving calculated and orchestrated offending.”

Dismissing an application for leave to appeal the Court of Appeal decision ([2011] NZSC 70), the Supreme Court considered the perjury to be very serious considering the potential consequences for the true father.

Until Nisbet v R, the Family Court appeared willing to overlook instances of perjury falling under the former category. This may be because, as well as being “misguided but perhaps understandable”, it is difficult to argue that it is in a child’s interests to have a parent face criminal charges. Maybe it was the father’s apparent lack of remorse, and non-compliance that made him susceptible to the unusual charge.

For whatever the reason, the case may hint at the beginning of a trend to take perjury in the Family Court more seriously. The Court of Appeal explicitly stated that Mr Nisbet’s sentence serves a denunciation of his conduct, and a deterrent for him and others from committing the same offence. It serves as a reminder to us to make it clear to our clients the potential consequences of other than complete honesty in their sworn evidence.

Annabel Sanders is a law clerk at the specialist family law firm McWilliam Rennie lawyers.

Whether you want to gain new skills for your current position or prepare for a new career direction, our qualifications will help you gain valuable knowledge and practical skills to future proof your career.

• Flexible learning options • Turn your ideas into world changing research • Upskill in cyber law with New Zealands largest selection of papers • Complete your Master of Laws within one year • Learn from world leading researchers and academics Apply now to start postgraduate study in 2018 at the University of Waikato Email study.law@waikato.ac.nz or visit waikato.ac.nz/law/postgraduate

P R I VA C Y · U P D AT E

UPDATE

P R I VA C Y

GDPR compliance in four steps

BY BIANCA MUELLER Privacy and data protection may not matter to many outside of Europe.

But this will change on 25 May 2018 when new EU privacy laws will coerce global businesses with links to the continent to comply with the General Data Protection Rules (GDPR).

These new rules will impact on any international organisation handling personal data of anyone residing in the European Union.

The extraterritorial scope of the GDPR means that some New Zealand organisations and businesses need to review their internal data processing procedures, or risk hefty fines for non-compliance.

European data protection authorities will have the power to impose fines of up to €20 million or 4% of annual worldwide turnover (whichever is higher) for any breach of the GDPR. The GDPR can also result in civil liability. Any person who has suffered damage as a result of a breach of the GDPR has the right to receive compensation from the data controller or the data processor.

Step 1: Who needs to comply?

The GDPR is fitted with a broad territorial scope – meaning it is affecting businesses outside the EU.

EU-based entities Any processing of personal data in the context of a branch or subsidiary in the EU must comply with the GDPR. That is the case even if the actual processing itself takes place outside the European Union.

Providers of outsourced services such as IT or admin services or cloud storage will be caught by this provision.

Example Kiwi Ltd is offering an international money transfer service to customers worldwide. All customer data is processed and stored on a cloud storage facility hosted in the United States. Kiwi Ltd offers the service to its European customers through a German subsidiary.

Non-EU based entities processing data of individuals within the EU All businesses with customers in the European Union or businesses that merely monitor the behaviours of individuals who live in the EU must abide by the new EU data protection standards.

28

These businesses must ensure that they comply with the GDPR; irrespective of their physical location. The game changer here is that even businesses without a physical presence in the EU may have to comply with the new rules if they: • sell goods or services to a person who lives in the EU; or • monitor the behaviour of a person who lives in the EU. The critical factor is the location of the individual (data subject) not the location of the data processor or data controller.

Example for monitoring behaviour of EU residents NZ Ltd (without an EU subsidiary or branch) is selling apparel online to Australian and New Zealand

customers. It is considering expanding its operations to the European market. To that end, NZ Ltd uses web analytic tools to determine how many people from each European country visit the NZ Ltd website and what they are interested in.

NZ Ltd would need to comply with the GDPR because any form of web profiling or tracking, whether through cookies or otherwise, will fall into the ambit of the GDPR. The direct consequence of this is that businesses can no longer go “forum shopping” for the lowest data protection standards in the EU. Uncertainty exists as to how these privacy standards will be enforced in practice against an entity outside the EU, especially if they have no assets in the EU. However, there is a reputational element at play as well. Businesses that want to succeed in the European market must therefore ensure that they comply with the GDPR. The bigger sting may result from

Why are privacy standards high in Europe?

In Europe, the protection of persons in relation to the processing of personal data is a fundamental right.

Article 8(1) of the Charter of Fundamental Rights of the European Union (the ‘Charter’) and Article 16(1) of the Treaty on the Functioning of the European Union (TFEU) provide that everyone has the right to the protection of personal data concerning him or her.

The European understanding of privacy is deeply rooted in human dignity and autonomy. It implies that each person can control and draw the line between their public and private sphere.

The basic idea is that people should be able to control personal data about them also called “informational self-determination”. This means that individuals have a right to determine when, how, and for what purpose personal information about them is being held and used.

potential civil liability which would be (unlike fines) enforceable in New Zealand as a money judgment.

Step 2: What personal data is being collected and processed?

Personal data is broadly defined in the GDPR. Personal data is any information relating to a person who can be identified either directly or indirectly. Personal data may relate to a person’s private, professional, or public life. It can be anything from a name, a photo, an email address, employment details, interactions on social media, medical records, or an IP address. Even a dynamic IP address can be personal data (C‑582/14 2016 Breyer v Federal Republic of Germany).

Personal data includes for instance: • Personal details such as the person’s name, address, email; • Financial details such as how much the person earns, credit ratings; • Medical details about a person’s mental or physical health; • Details about a person’s ethnicity, political opinions, religious beliefs, or sexual life; • Images or voice recordings of a person; • Employment details; • IP address of a person that visits a website; • Criminal records or alleged offence; • Biometric data; or • Location data.

A person may be indirectly identifiable if identification is made possible through combining different pieces of information that by themselves alone would not reveal the identity of the person.

The GDPR does not apply to personal data that has been anonymised so that an individual can no longer be identified from the information itself. However, pseudonymised data that is retracable may be considered as personal data on individuals which are indirectly identifiable.

Step 3: How is personal data collected?

Businesses need to have a close look at how they collect personal data. Data may be collected from

many sources: A person may have provided it voluntarily for “free” services such as search engine services or social networks. Personal data may also be captured automatically through cookies, web analytics, and sensors.

The GDPR approaches consent more restrictively. Consent must be “freely given, specific, informed and unambiguous”. Silence, pre-ticked boxes or inactivity is not a form of valid consent.

Consent must be specific to distinct purposes for handling personal data. Consent should cover all intended processing activities.

Particular conditions are imposed in the case of children online and for sensitive personal information.

Step 4: Why is personal data processed?

Businesses need to be clear about the legal ground or grounds for which they process personal data.

The GDPR prohibits the processing of personal data unless there are legal grounds to do so. In other words just because a business can process personal data does not mean it is also legally entitled to do so.

• Legal grounds for processing of personal data include: • To perform a contract; • The individual concerned has given consent; • The data controller has a legitimate interest; • Statutory obligation to collect and retain information (eg, employers); • To perform the lawful function of a public authority; or • For the protection of vital interests of that person.

Personal data must be handled for specified and explicit purposes.

During the life cycle of data, the personal data cannot be further processed in ways that are incompatible with the initial purposes for which the data was collected.

For instance, personal data that has been collected to perform a sale of goods contract cannot later be used for marketing, unless the person has specifically agreed to receiving promotional offers.

The GDPR does not provide for an

intra-group privilege. Instead each group subsidiary will be accountable for its own data protection standards.

This also means that intra group data transfers must be justified by law.

Example Kiwi Holding Ltd is employing Swedish staff through its Swedish subsidiary. However, the actual payments of salaries to the Swedish staff comes from Kiwi Holding.

There is – by default – no right for the Swedish subsidiary to transfer employee data to Kiwi Holding Ltd. Express consent is required from each Swedish employee for the intra-group data transfer to be legal.

Conclusion The GDPR has introduced extended liability and increased penalties. With this in mind, companies should be particularly careful when handling personal data of Europeans.

Businesses need to review their internal data policies and procedures that address privacy and data protection, including their IT policy, HR policy, outsourcing procedures, and any policy affecting data subjects in the European Union.

GDPR compliance is not a one-off task. It is an ongoing process. Relevant policies should therefore continuously be monitored, reviewed, and most importantly communicated to staff.

Bianca Mueller  bianca@lawdownunder.com practises as a New Zealand barrister and a German lawyer. She is the founder of the technology law firm LawDownUnder which focuses on European transnational and commercial relationships with New Zealand and Australia.

29

T R U S T S · U P D AT E

UPDATE

TRUSTS

From Russia with Love (and Trust) Russian oligarch fails to conceal assets in New Zealand trust structure

BY SALLY MORRIS AND GEORGIA ANGUS In the recent decision JSC M ezhdunarodniy Promyshlenniy Bank v Pugachev [2017] EWHC 2426 (Ch), Birss J of the High Court of England and Wales held that the settlor of five New Zealand foreign trusts retained beneficial ownership of the trust assets, leaving those assets open to a claim by creditors.

Who is Sergei Pugachev?

Sergei Pugachev was a Russian oligarch. He founded Mezhprom Bank in 1992 and developed it into one of Russia’s largest private banks. Mr Pugachev was involved in Russian politics and was elected as a Senator of the Russian Federation in 2001. Birss J noted that Mr Pugachev “initially found favour with the ruling regime and assisted President Putin’s rise to power”.

Mr Pugachev was extremely wealthy. In 2008, he was worth around US$15 billion. His assets included the largest shipyard in Russia, the second largest coking coal mine in the world, the French retail chain Hediard, the French national newspaper France Soir, a chateau in the South of France, three yachts – one of which was worth US$35 million – two private jets and a helicopter.

Following the 2008 global financial crisis, Mezhprom Bank was struggling. The Russian Central Bank supported Mezhprom Bank but this ultimately failed. The bank’s licence was revoked and the Russian Court declared the bank insolvent. When the bank entered into liquidation, the deficiency in its assets was approximately US$2.2 billion. Around that time, Mr Pugachev was also losing standing with the Russian ruling elite. In early 2011, he fled Russia just after criminal investigations were opened relating to Mezhprom Bank’s collapse.

A New Zealand trust was settled in December 2011 to hold Mr Pugachev’s property in London. By 2012, the pressure on Mr Pugachev from Russia was increasing and there were Russian press reports that London proceedings were being contemplated to trace Mr Pugachev’s assets held outside Russia. After receiving advice on the risk of an ex parte asset freezing order and an order 30

requiring asset disclosure, four further New Zealand trusts were settled between July and November 2013. The value of the assets settled on the five trusts by Mr Pugachev was over US$95 million.

There have been numerous proceedings around the world relating to Mezhprom Bank’s collapse, including a without notice worldwide asset freezing injunction against Mr Pugachev in July 2014. This particular proceeding was brought by Mezhprom Bank and its liquidator in the High Court of England and Wales. The basis of their claim was that the beneficial interest in the assets held by the five New Zealand trusts belonged to Mr Pugachev. The claimants sought an order vesting the trust assets in them.

The New Zealand trusts The New Zealand trusts were all discretionary. Mr Pugachev, his partner, Alexandra Tolstoy, and his children were among the discretionary beneficiaries. The trustee of each trust was a New Zealand company.

Mr Pugachev was the protector of each trust. The trust deeds gave the protector a wide range of powers and control. In particular, the protector: • Had a right to information from the trustees, • Had the power to appoint new discretionary beneficiaries, • Had the power to appoint trustees and remove trustees “without cause”, and

• Could veto all major decisions of the trustees, including investment, distribution of income or capital and variation of the trust deed.

The court considered two claims in relation to the trusts. The first was whether the trust deeds created a trust divesting Mr Pugachev of control of the assets or whether the beneficial title to the assets remained with Mr Pugachev. This was referred to as the “true effect of the trusts claim”. Alternatively, the court considered whether the trusts were shams.

True effect of the trusts claim Birss J relied on the New Zealand Supreme Court’s decision in Clayton v Clayton [2016] NZSC 29 in relation to the true effect of the trusts claim. Birss J gave two reasons for dealing with the Clayton decision at some length in his judgment. First, because it is a decision from the Supreme Court of New Zealand. His Honour stated that such decisions are authoritative but particularly in this case as it involves New Zealand trusts. Second, Birss J considered that the decision in Clayton illuminates some important principles relating to the analysis of trusts.

He noted that the fact the Supreme Court applied those findings to the New Zealand relationship property regime does not diminish the relevance of that analysis.

His Honour was of the view that

U P D AT E · T R U S T S

Honour found that Mr Pugachev has two important characteristics: that he is not a person who would lightly relinquish control of anything and he is a person willing to lie and put forward false statements if it would suit his purpose.

Birss J found that Mr Pugachev’s intention in settling the trusts was to retain control of the assets but use the trusts to mislead third parties by hiding his control. His Honour considered that the whole scheme in this case was set up to facilitate a pretence about ownership, or rather its absence, should the need arise.

In conclusion, Birss J held that if his interpretation of the true effect of the trust deeds was wrong and Mr Pugachev was not the beneficial owner of the assets, the trust deeds were shams.

Warning to solicitors

the Clayton decision shows “when considering what powers a person actually has as a result of the trust deed, the court is entitled to construe the powers and duties as a whole and work out what is going on, as a matter of substance”.

B i rs s J o b s e r ve d t h a t Mr Pugachev’s position differed to Mr Clayton’s as Mr Pugachev could not directly remove a discretionary beneficiary. However, as protector, Mr Pugachev could veto distributions, remove a trustee who refused to distribute trust assets to him and appoint a trustee who would.

Based on the true construction of the trust deeds in this case, his Honour held that Mr Pugachev’s powers as protector were personal, rather than fiduciary. That is, Mr Pugachev was free to exercise these powers for his own benefit, without considering the interests of the discretionary beneficiaries.

Birss J’s fundamental reason for reaching this conclusion was the extensive nature of the protector’s powers combined with the fact that Mr Pugachev, as the first protector, was also the settlor of the assets and one of the discretionary beneficiaries. His Honour noted that if less extensive powers were conferred on a beneficiary/protector, then that might lead to a different result but that was not this case.

Accordingly, Birss J found that the terms of the trusts “[did] not divest Mr Pugachev of the beneficial

ownership of the assets he transferred into the trusts”. On that basis, his Honour held the trusts were not shams. However, his Honour went on to consider the sham claim in case the proper construction of the trust deeds was that the protector’s powers were fiduciary.

Sham claim The claimants argued the trusts were shams as it was the intention of the parties that the assets should continue to belong to Mr Pugachev.

As a starting point, Birss J noted that there is no such thing as a “sham trust”. Rather, what may be a sham are the documents or acts that purport to set up the trust. In considering whether a document is a sham, the focus is on the intentions of the relevant parties. This is a subjective test. As held by Arden LJ in Hitch v Stone [2001] STC 214: “The parties must have intended to create different rights and obligations from those appearing from (say) the relevant document, and in addition they must have intended to give a false impression of those rights and obligations to third parties.”

His Honour held that a critical question is what Mr Pugachev’s intentions were when he settled the trusts and transferred his assets into them. As Mr Pugachev did not give evidence, Birss J was required to draw inferences on this point.

In considering the evidence, his

His Honour was also critical in his decision of the solicitor who acted in relation to the New Zealand trusts. The solicitor was a shareholder and director of the trustee companies. He drafted the trust deeds and set up the trusts and trust companies. He looked after all the paperwork concerning the administration of the trusts.

Although the solicitor’s evidence was that he did not know what Mr Pugachev’s intentions actually were, Birss J did not accept that the solicitor did, in fact, infer that Mr Pugachev wanted to relinquish control. If he wanted to find out what Mr Pugachev’s actual intentions were, he could have asked, but he did not. His Honour held that the best that could be said about the solicitor’s actions were that he prepared and signed the trust deeds entirely recklessly as to the settlor’s true intentions. This statement serves as a warning to solicitors to ensure they understand why a client wants to settle a trust and not to turn a blind eye to the reality of a client’s instructions.

Conclusion In this case, the court ultimately found that the assets were held on bare trust for Mr Pugachev. None of the protector’s wide powers in the deeds were fiduciary.

They were purely personal powers that Mr Pugachev could exercise selfishly. The true effect of the deeds was to leave Mr Pugachev in control of the assets.

This is another reminder to settlors of the risks of seeking to retain control over trust assets. The process of establishing a valid trust is more than just a box ticking exercise. The courts will look to the substance of a purported trust in order to be satisfied that the necessary incidents of a trust are met. Unfortunately for Mr Pugachev, the “trust” structure did not amount to a valid trust and therefore was not effective to remove his assets from the reach of his personal creditors. In other words, just because it looks, walks and quacks like a trust doesn’t mean it is one.

Sally Morris  sally.morris@morrislegal.co.nz is partner and Georgia Angus  georgia.angus@ morrislegal.co.nz senior solicitor of boutique Auckland litigation firm Morris Legal.

31

AML/CFT

AML/CFT

Practical tips on conducting customer due diligence

BY LLOYD KAVANAGH AND TINA XU When lawyers become reporting entities under the Anti-Money Laundering and Countering Financing of Terrorism (AML/CFT) regime from 1 July 2018, a key ongoing obligation will be to conduct “customer due diligence” (CDD) on relevant clients.

The AML/CFT Act itself sets out when and how to conduct CDD, but those rules are not always easy to apply in the context of lawyers. This article explores three issues lawyers may have when conducting CDD.

required by the AML/CFT Act. For existing clients, CDD is only required following a material change in the nature or purpose of the business relationship (relying on section 14(1)(c) of the AML/CFT Act).

There will be some debate as to what is a change in the nature or purpose of the business relationship. A good conservative threshold is the next time the existing client instructs a lawyer in relation to a “captured activity” or at the bare minimum, when opening a new file to carry out a “captured activity”.

When do you conduct CDD?

Who do you conduct CDD on?

Lawyers face two questions: 1 Should CDD be conducted on all new clients on inception, or only when a new client requests a “captured activity”?

2 When CDD should be conducted on existing clients?

The first question arises because the AML/CFT regime only applies to a client if a lawyer provides one of the activities listed in the definition of “designated non-financial business or profession” (for example, when the lawyer handles client funds, undertakes conveyancing of land or a business, or provides trust or company formation services). There may be clients on whom lawyers will never need to conduct CDD. For many, the easiest path may be to conduct CDD on all clients at the beginning of the business relationship, regardless of whether or not the client’s first instruction includes a “captured activity”. This avoids having to address the position part way through the relationship.

However, for lawyers that do not regularly perform captured activities, conducting CDD on all clients may be unnecessarily burdensome.

Even for lawyers who are performing “captured activities”, it may be that CDD is not easily conducted at the start of an instruction. For example, if the client is one of a number of tenderers in a property transaction requiring an urgent agreement for sale and purchase review before the tender deadline, conducting CDD at the start of the instruction may mean that the client cannot receive the service in time.

There is no single correct approach, as it depends on the lawyer’s practice. But lawyers should always ensure their compliance programme triggers completion of CDD for all clients who undertake a “captured activity”, as

Lawyers must conduct CDD on their clients and, where the client is not an individual, on any “beneficial owners” of the client and any person acting on behalf of the client.

Identifying “beneficial owners” can be difficult, particularly when clients have complex ownership structures. The AML/CFT supervisors published the Beneficial Ownership Guideline, which explains in detail the “beneficial owners” test. It states that a beneficial owner is an individual that satisfies any one of: • Owns more than 25% of the customer; • Has effective control of the customer; or • Is the person on whose behalf a transaction is conducted.

The key is to look for the underlying natural persons.

It can include directors and shareholders of companies, trustees, settlors and beneficiaries of trusts and committee members of a club or society. This requires an understanding of both the ownership and control structure of the client.

32

Example Jane runs ABC Ltd, a plumbing business, and has approached you to assist with the acquisition of a competitor’s business. Jane is the sole director of ABC Ltd and the other shareholder is Jane’s father, Stu. Who should you conduct CDD on?

The “customer” in this scenario is ABC Ltd. The “beneficial owners” include Jane and Stu as shareholders. Jane is also the person acting on behalf of the company as she is the sole director. If ABC Ltd had a senior manager who instructs you from time to time, they would also be “persons acting on behalf of the customer”. But if the shareholders were Jane and Stu as trustees of the ABC Family Trust, CDD becomes more complex – relevant

AML/CFT

persons could include the settlor and trustees of the ABC Family Trust or others with control rights.

What standard of CDD? Lawyers must also decide whether standard, enhanced or simplified CDD is appropriate on each client.

The AML/CFT Act provides for when certain clients or situations require a particular standard of CDD. But lawyers are required to take a “risk based approach” each time simplified or standard CDD is conducted to decide whether the risks involved for a particular client calls for enhanced CDD. To assist with this decision, lawyers should apply judgement based on their experience and understanding of the client. Various organisations, including the New Zealand Police Financial Intelligence Unit, the Financial Action Task Force (FATF) and the Asia Pacific Group on Money Laundering, publish typologies exploring the behaviour and practices of money launderers and those financing terrorism, which may assist with assessing risk.

Lawyers should also consider other risk factors, such as the client’s reputation, the regularity or duration of

the relationship with the client and the type of transactions undertaken.

Finally, enhanced CDD is always required on clients who are trusts and other vehicles for holding personal assets, and effectively required on politically exposed persons.

Example ABC Ltd is incorporated in Vanuatu – Jane explains – for tax reasons.

Jane asks to pay part of the purchase price in cash to save her a trip to the bank. When you request identity details, Jane is reluctant to produce them as it’s a “hassle”.

There are a number of factors that suggest enhanced CDD may be

required – the fact that the client is established in a jurisdiction considered “high risk” by FATF, the cash-intensive nature of the business and the fact that Jane was hesitant to provide identity details. Enhanced CDD should be conducted.

Lloyd Kavanagh  lloyd.kavanagh@ minterellison.co.nz and Tina Xu  tina.xu@minterellison.co.nz are co-authors of the AML/CFT section of Morison’s Company and Securities Law. Lloyd is Chair of MinterEllisonRuddWatts and leads the firm’s financial services team. Tina is a solicitor in the firm’s banking and financial services team.

Trusted practice management software for NZ lawyers Easy to learn, easy to use. Save time and increase profits. That’s what users say!

New: Document management & Internet banking. Free installation and training. Visit our website for testimonials from firms just like yours. www.jpartner.co.nz enquiries@jpartner.co.nz 09 445 4476 JPartner Systems Ltd

33

PRACTICE

Sexual harassment in the NZ legal workplace

BY A NEW ZEALAND LAWYER The author of the following article is anonymous. While LawTalk has a policy of identifying the author of each article, we fully respect her reasons for anonymity: “Although I think these are important experiences to speak out about, I am not prepared to endure the attention that putting my name to it would bring. Nor do I wish to humiliate the men involved or invite speculation about who they might be.”

There has been a lot of talk in recent weeks about the harassment that many women have to endure in the course of pursuing their careers – in acting, politics, IT, and the professions. We know, of course, that women also endure sexual harassment in the legal profession here in New Zealand. In this article, I want to outline two comparatively minor but nonetheless very difficult incidents which I experienced as a young lawyer. I am doing this in the belief that the more that people talk about these things – even if as here, anonymously – the better people will understand how sexual harassment happens and what we can do to prevent it.

Both incidents of sexual harassment which I experienced followed an eerily similar pattern. In the first case a very senior lawyer (Man 1) asked if I could come in on the weekend to work with him on a file. In the second case a similarly senior man (Man 2) invited me to meet with him to discuss the prospect of working with him on something important. In the first case, I was 22 and in the second I was 24.

The men in question were in their sixties. In both 34

PRACTICE

instances, at the very last minute. I received messages letting me know that the meetings would be taking place at their houses. These were not requests; I was simply being informed about what was happening. I turned up to the meeting with Man 1 to discover that his wife was away for the weekend – and that he had booked us a table for lunch at his favourite cafe. In fact, the whole event was essentially a date. It was five hours before I managed to extricate myself during which time we did just 45 minutes of work.

Man 2 had no wife to dispense with but, since the meeting was at 5pm, he had poured me a glass of wine and started making dinner for us both by the time I had arrived. I left in the dark at 10pm, having had it made very clear to me (a) that Man 2 was immensely wealthy, and (b) that I would be very welcome to become his mistress.

In one sense this In one sense this is no big deal; is no big deal; just a couple of optimistic old boys just a couple of trying when they shouldn’t. I didn’t optimistic old boys feel unsafe during either of these trying when they ‘dates’ and had previously liked shouldn’t... But I had and got on well with both men. never given an iota But I had never given an iota of an of an indication that indication that I was romantically I was romantically interested in either of them and interested in either given that each was old enough of them. to be my grandfather you’d have thought that they’d have needed

some pretty clear encouragement to assume that I was.

I emerged from both encounters feeling entrapped. I had been lured under false pretences into these men’s homes and into fake romantic encounters I had never agreed to. I resented the imposition on my time and my emotional equilibrium.

Things didn’t stop there And unfortunately, things didn’t stop there. From their perspective these encounters were a great success. I’d stayed for lunch/dinner. I’d engaged in interesting conversation and generally done what was expected of me.

I’d got away but only as early as it was polite to do so.

Unlike me, they didn’t stop to ask themselves what the hell a young woman was supposed to do when a man who held her career in the palm of his hand put her in a position like that.

So, of course, they asked me out again. Man 2 wanted to discuss work over lunch at a restaurant. I went but immediately regretted it so the next time I tried the brush off. I said I was busy and didn’t suggest an alternative time. “When are you free then?” I delayed answering for ten days and then upped the ante: “I am not really free at all at the moment. I am very busy at work for the next couple of months”. “When will you be free again then?” Clearly he was not going to take a hint. Man 1 was similarly persistent only his declarations were more emotional. It turned out he was in love with me, kept thinking about me, had fallen for me in a way he couldn’t explain and which made him feel like a fool. He would come into my office all the time, tried to move me 35

PRACTICE

away from my peers and into his part of the building; told me that he had wanted to kiss me.

I didn’t know what to do At this point, in both cases, things got a bit out of control.

I just didn’t know what to do.

With Man 2, I had tried the standard polite ‘no’ techniques. And there was an important decision being made about my career that I had every reason to think that he was involved in. Was there a risk that he would take things out on me if l rejected him? He was beginning to look rather fond of getting what he wanted. Should I just keep going out to lunch with him until the decision was made? Should I leave town for a bit? Should I invent a boyfriend? Or should I do as my friends advised and just tell him directly to go away?

The situation with Man 1 was even more difficult.

He was there every day when I went to work. He too had immense power over my future career. People were gossiping about me in the office. (An older woman I went to for support simply went around telling some of the secretaries about it.) And I believed Man 1 when he said that he had fallen for me. What would a heartbroken older suitor do if his young love interest overtly rejected him? I had no idea. What’s more, I was young and nice and didn’t want to crush him.

In the end, in both cases, I took my friends’ advice and pressed the nuclear button. Both men received letters telling them politely but firmly that I did not wish to go out with them. Man 1 was contrite and apologetic but resumed the same behaviour a few months later. It ended when I changed jobs. Man 2 got peeved. In fact, despite having previously been a mentor and supporter of my work, he refused to talk to me for two years. He sent a message via a colleague that I had overreacted, that I had misread the situation, that there are ways of communicating these things politely (like saying you’re busy for the next two months perhaps... ?). He finally thawed when I – weakly, I know – sent a message via the same friend saying that I accepted that I had been a bit heavy handed. But in neither case was the mentoring, supportive work relationship restored. How could it be?

My health and work suffered I realise that all this is nothing compared to the sexual harassment and abuse that many women endure in their professional and personal lives. But part of the point I want to make here is that even these minor incidents can have a serious effect on women’s work and personal lives. In both cases, my health and work suffered as a result of the stress – particularly in the case of Man 1 who was always in the office. In both cases, I lost an important mentor because they overstepped 36

I don’t talk about this stuff openly; most women who experience these things have learnt it is not in their interests to do so.

But when we do try to tell you that we might have had a rougher road to tread than our male colleagues, when we talk about sexism, and ask for support from our colleagues and institutions, then please be willing to listen.

the line. Both cases made me wary of trusting men who professed to admire my work in the future.

And this made me feel vain and inadequate in equal measure; vain because I felt I was flattering myself into thinking that men at work kept fancying me and inadequate because I didn’t get the usual sense of affirmation if a man did express an interest in my work. And both cases made me doubt my ability to handle myself in the world. It took me years to realise that what went on here was sexual harassment. I even went to a counsellor to learn what I was doing to attract this kind of attention. It didn’t work. It only stopped when I got a boyfriend who was well-known amongst the legal community. It seems it isn’t form to hit on another male lawyer’s girlfriend. And of course there is nothing like age and seniority to discourage unwanted romantic attention...

What might people take from this?

So what is it that I am hoping people might take from this? First of all, if you are reading this and think that you might have treated a male or female colleague like this – ie, used

them to fulfil some emotional or sexual desire of yours (whether overtly or not) – then don’t do it again. Recognise the power that comes with even a little bit of seniority and make sure that you don’t abuse it – wittingly or unwittingly.

Do not use work pretences to get people into your lair or to get into theirs. This is not harmless behaviour even if all you do while they’re there is dream or delude yourself. If the young lawyer in the office really does want you for their sugar daddy you will have to wait until he or she propositions you – directly.

My second hope is that men reading this will get a bit more of a sense of the kind of difficulties female lawyers sometimes encounter in the workplace. I don’t talk about this stuff openly; most women who experience these things have learnt it is not in their interests to do so. But when we do try to tell you that we might have had a rougher road to tread than our male colleagues, when we talk about sexism, and ask for support from our colleagues and institutions, then please be willing to listen. The landmines hidden on our career paths aren’t always easy for others to see.

PRACTICE

PRACTICE

The fine art of billing: What you really need to know

BY EMILY MORROW The Truisms Because law is as much a business as a profession and the billable hour is a critical part of that, handling the time recording/ billing aspect of one’s practice is a core capability for lawyers. As one of my former partners once said; “I’m going off to man my billing station this afternoon. If I don’t do that really well, I’m wasting my own and everyone else’s time”.

One of the most frequent complaints clients make about their lawyers is that a billing matter was poorly handled. Either the amount was inappropriate, concerns were inadequately addressed, the bill was untimely and so forth. As I used to say to my team members when I was in practice, “You can’t please all of the clients all of the time, but if you’re not careful, you can upset all of them”.

Because billing involves the exercise of professional judgement, it is more of an art than a science and getting it right can be challenging. Interestingly, relatively few firms proactively train lawyers about when and how to bill, address client concerns, describe work done in sufficient (but not too much) detail, write down a bill and so on. Here are some thoughts about how to improve your “billing hygiene”.

The following are core concepts in terms of optimal billing behaviour. I have always found these approaches to be helpful.

• Communicate with your client early and often, particularly if there are any questions or concerns about a bill.

• If you start feeling uncomfortable about something in the billing process, lean in towards it. Do not go into denial.

• Remember: no matter how wrong the client is, the client is always right.

• Be sure never to win a battle in terms of a bill, only to risk losing the war in terms of that same bill. In other words, always keep things in perspective.

• It is more important that the client feels positive about the whole experience of working with you and your firm, including the billing process, than that your bill be paid in full.

• There is nothing more valuable in your professional life than your reputation. Do not let a client who is disgruntled about a bill besmirch that. One unhappy client in your community can do a lot more damage to your practice than almost anything else.

• Record your time in real time right after you have done the work. You

can always cut your time back later on. Do not rely on your memory to record time later on. At the end of each day add up the amount of time that you have recorded and if it is less than the amount of time you worked, figure out where the slippage occurred and fill it in.

• Be detailed in describing what you have done. Clients feel better about paying bills that show detail. On the other hand, don’t be overly “picky”, because that can irritate a client.

• Routine work done by less senior team members is generally best done on an hourly basis. Always utilise support staff appropriately so fees are reasonable.

• Bill frequently and do not let the account balance get too large. Clients are more comfortable paying smaller bills, rather than large, infrequent ones.

Some common billing issues and how to address them How to set fees This issue arises in connection with billing for work done on an hourly basis, fixed fee work and work “not to exceed a certain amount”. Here’s what I suggest: • When you give an estimate (versus a flat fee), always 37

PRACTICE

estimate high; things always take longer than you think.

• It’s better to give a “not to exceed a certain amount” estimate than a flat fee in my experience. You’re less likely to lose money that way.

• Only give a binding quote on matters that you know will take a certain amount of time based on your prior experience. Do the unique and complex matters on an hourly basis if at all possible.

• Resist the urge to “low ball” an estimated fee to get a job. If you do, it will just become a race to the bottom.

Take the time to explain the value you will add by doing the work and then stick with your hourly rate, assuming it is in line with market rates in terms of estimating what a particular task will cost.

What to do when you realise you have underestimated the cost of work and are likely to have a cost overrun • Think before you communicate the problem to your client so you calm yourself down and don’t say something you might later regret.

• Consider whether to communicate the billing concern to your client via telephone, email, in person or hardcopy letter. Unless it is a simple matter, I generally recommend discussing billing matters either in person or by telephone so it can be a dialogue. Don’t rush or avoid the discussion.

• Let the client know, very explicitly, that your primary concern is that he/she be entirely satisfied in working with you and your firm, including billing matters. Tell the client you will do whatever it takes to make sure he/she is happy with the result. Be sure you believe this is true yourself. You may lose a bit of money on this particular matter, but you will have gained a great deal of goodwill.

Addressing client concerns and complaints Do so early, often, directly and transparently.

Tell the client it is important to you that the amount paid for the work you did is commensurate, in the client’s opinion, with the amount billed for the work. Encourage the client to pay only that portion of the bill that he/ she deems to be per the above. In the vast majority of cases, clients will go ahead and pay close to 100% of the bill after you say this and they will thereafter happily extol your virtues amongst their friends and colleagues.

Gearing to optimise profitability for the firm, reduce client fees and increase client satisfaction Think about who is available to work with you on a matter and who has the capability to do the work 38

right the first time, but at the lowest cost for the client.

Delegate accordingly.

Consistently make it a top priority to invest time in training your team members to do the work you delegate to them. In some cases, you may have to write off your training time, but in the long run this will be profitable.

How team members (who do not control billing decisions) should communicate with clients about billing questions, complaints and the like Consider how you would like a support staff member to respond to a billing question a client might have. For example, what kinds of questions are appropriate for a team member to answer and what should be referred to you? Have conversations with your team members about this before it happens so everyone is prepared.

Timing and sending out bills Bill often but do not bill until you have completed at least some of the work you are doing for the client and the client has some work product in hand.

If you have written down your own or someone else’s time, consider indicating you have done so in a cover letter that accompanies the bill and explain your reasons for doing so. Clients appreciate this and it builds goodwill.

Following up on unpaid bills Do so within 30 days after the bill has been sent to the client. Communicate first via an email or letter, and if that does not get results, make a phone call. If that still does not work, then raise the issue with the client in person the next time you meet with him or her. Don’t let the matter languish. Either get the bill paid or write it off within no more than 90 days.

Most lawyers work hard and do good work for their clients.

However, some are more successful Because billing than others in getting their bills paid involves the in a timely manner by reasonably exercise of happy clients. Generally, it takes less professional time to handle a billing matter well judgement, it is than to mishandle one. Mastering more of an art the fine art of billing can make all than a science the difference. and getting it

right can be challenging.

Interestingly, relatively few firms proactively train lawyers about when and how to bill... and so on.

Emily Morrow  www.emily​ morrow.com was a lawyer and senior partner with a large firm in Vermont. Emily now resides in Auckland and provides tailored consulting services for lawyers, barristers, in-house counsel, law firms and barristers’ chambers.

TRANSFORM YOUR CAREER WITH AN LLM FROM NEW ZEALAND’S LEADING LAW SCHOOL Flexible study options including intensive courses, evening classes and research masters.

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

Global Commercial Contract Law International Arbitration The Tax Base Comparative Company Law Iwi Governance Media Law in the Digital World International Taxation Uncensored History of International Law Goods and Services Tax Selected Topics in Tort Law Tax Administration and Disputes Data Privacy and the Law Litigating Human Rights: Law and Practice in Comparative Perspective The Legal System: Sources, Structure and Method Local Government Law Selected Topics in Law of Evidence and Criminal Procedure Global Environmental Law Food Law Employment Law: Personal Grievance Waitangi Tribunal: Past, Present and Future Twenty-first Century Trade Agenda Corporate Finance Corporation and Investor Tax Contemporary Issues in International Law Australian Tax Health Law Law of Insurance Contracts Climate Change Law Resource Management Law Intellectual Property Competition Law Artificial Intelligence: Law and Policy

For more information visit

law.auckland.ac.nz/llm

PRACTICE

PRACTICE

First Impressions Enhancing your Terms of Engagement

BY LISETTE SOLIS First impressions can be everything.

“Business owners often spend a great deal of time and resources on keeping their existing clients, by cultivating good relationships and maintaining a high standard of customer service.

Consistently making a strong first impression is essential to gaining new customers and clients, what every business must do to succeed.”

— George N Root III. Think about the impression you and your firm make when you meet a new client.

Do they leave comforted in the knowledge that you are there to protect their interests with the confidence to contact you with any concerns? Or are they left with the dread of how much this will cost, confused about what will happen next but too embarrassed to say so?

A new client will typically leave that first meeting with at least two things: a first impression and a copy of your terms of engagement. If that impression is not what it could have been, will your terms of engagement save the day? If it doesn’t what are the implications for your relationship with that client and the work that will be performed?

Clear and easy to understand When asked what advice he would give lawyers to avoid complaints, a senior member of the Lawyers Complaints Service suggested lawyers should “make sure their terms of engagement are clear and easy to understand.”

Terms of engagement play a critical role in establishing the expectations between lawyers and their clients. The problem is that typical terms of engagement are dense and legalistic. Instead of informing 40

the client, they can add to the confusion and inhibit the kind of free and frank discussion that is key to a healthy and productive working relationship. In time, this can ultimately fracture that relationship resulting in dissatisfaction and complaints.

Is there a way to cut through the legalese whilst ensuring the terms of engagement still cover the must-have information? We think there is.

Making wholesale changes to your terms of engagement is not an option, as much of that important detail is essential to protect both parties and some is also required by the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (rules 3.4 and 3.5).

Simple short summary available The Lawyers Complaints Service has designed a simple short summary that can be given to clients with your current terms of engagement.

That summary can inform the client and help to set the expectations of your relationship. It can also assist in creating that all-important strong first impression.

By highlighting the key features of the lawyer-client relationship, it assists the client’s understanding of what is required from them and what they can expect from you.

More importantly, it can prompt the kind of open dialogue that is key to any successful business relationship. For instance, making it clear that it is perfectly okay for the client to contact you to clarify anything or to discuss any concerns they may have will improve communication and hopefully avoid most common complaints.

Will it make any difference?

A review of all Lawyers Standards Committee decisions issued in the 2015/2016 year reveals the most commonly raised complaints by rules are: • Competency and timeliness – rule 3, • Discourtesy – rule 10, and, • Fair and reasonable fees – rules 9 and 9.1.

Consistent themes raised in these complaints include: delay, discourtesy, or the failure to respond. While the vast majority of these complaints find the lawyer has not breached their professional obligations, the question is how you can avoid them in the first place.

Communication is a two-way street, but if expectations in this area are not established at the outset, clients will typically rely on you to initiate all contact and may

TERMS OF ENGAGEMENT Below are a number of precedent clauses for terms of engagement for barristers and solicitors in private practice. They are provided by way of illustration only and will require amendment to suit the needs of individual lawyers or firms. Each law practice can adopt the terms of engagement as it wishes, subject to the obligations of lawyers under the Lawyers and Conveyancers Act 2006 and the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.

KEY FEATURES OF OUR RELATIONSHIP WITH YOU

These Terms of Engagement are intended as a service by the Law Society to members and do not constitute legal advice. Each law practice will need to decide what terms and conditions are appropriate for the services it provides. The Law Society accepts no responsibility or liability for anything done in reliance on these Terms of Engagement.

What we will do for you 1

General

1.1

These Standard Terms of Engagement (Terms) apply to any current engagement and also to any future engagement, whether or not we send you another copy of them. We are entitled to change these Terms from time to time, in which case we will send you amended Terms. Our relationship with you is governed by New Zealand law and New Zealand courts have exclusive jurisdiction.

2

Services

2.1

The services we are to provide for you (the Services) are outlined in our letter of engagement along with any further instructions that you provide to us in writing (or that we record in writing).

2.2

In order to provide you with efficient advice and services and to provide the most costeffective service, it may be that part or all of your instructions will be delegated to other professionals in our firm.

3

Communications

3.1

We will obtain from you contact details, including email address, postal address and telephone numbers. We may provide documents and other communications to you by email (or other electronic means). You will advise us if any of your contact details change.

3.2

We will report to you periodically on the progress of any engagement and will inform you of any material and unexpected delays, significant changes or complications in the work being undertaken. You may request a progress report at any time.

3.3

You agree that we may provide you from time to time with other information that may be relevant to you, such as newsletters and information bulletins. At any time you may request that this not be sent to you. [This is required if you propose to collect personal information from clients and use it for a mailing list or other marketing purposes. You should be as clear as possible about the purposes for which you are collecting personal information to comply with the Privacy Act 1993].

»

We will keep you informed about the work we are doing. If you have a question or concern about what we are doing, please contact us so we can discuss it.

»

If you are concerned about how much the work will cost, just let us know. We will give you an estimate of our fee based on the work we think we will need to do. If this changes at any time, we will let you know and provide an updated estimate.

»

Please take time to confirm your requirements. It is important that you do this so we can do our best to meet your expectations and deliver the service you require.

»

Please keep up to date with the payment of our fees or any agreed payment arrangements so we can continue to act on your behalf.

»

Please provide all the information we need to act on your behalf and advise us of any changes to your circumstances, as this may affect the advice you require.

What we need from you

Our full terms and conditions are attached. Please take time to read these carefully.

We are happy to discuss and explain any of these if they are unclear.

5899414

▴ A full terms of engagement.

▴ The newly developed summary.

PRACTICE

complain when their expectations are not met.

Nearly 12% of the complaints received during the 2016/2017 year were about lawyers either failing to confirm their instructions or acting without them. About 22% of complaints received were about inadequate communication from the lawyer. How many of these complaints could have been avoided if the client and lawyer had engaged in a meaningful discussion at the outset to establish their expectations?

Fee complaints The other major source of complaints is fees. Complainants often complain they were charged a fee they were not expecting or prepared for. Communication and expectation, again, are often at the heart of these matters. If the client is aware of what will increase your costs this may provide them with some feeling of control over this aspect of your relationship.

More often than not, the client will have received the required client care information (including your terms of engagement) however, they will have either forgotten what it said, failed to understand it, or simply not read it – an altogether human trait when faced with a long and detailed contractual document. This highlights the importance of setting out some key features in a way that is accessible and understandable to your clients and which they can read at a glance.

Based on the complaints it receives, the Lawyers Complaints Service believes that improved communication at the outset of the lawyer-client relationship could make all the difference. Not only could a number of common complaints be avoided, it could lead to a greater retention of clients and repeat instructions. A better relationship makes for a happier client.

What can you do?

It is up to you to choose how you want to address the issues set out above.

The Lawyers Complaints Service suggests providing the summary as a covering document to your standard terms of engagement.

You can add your law firm’s logo.

It highlights the key features of the lawyer client relationship and is designed to encourage discussion and interaction. It is not meant to replace the client care information. It is designed to help both parties establish their expectations and encourage clients to raise issues directly with their lawyer.

Anything that can improve your first impression and avoid being the subject of an unnecessary complaint is surely worth considering.

The summary can be downloaded from the NZLS website by navigating to For Lawyers ▹ Regulatory Requirements ▹ Client Care.

Lawyers can use this version or alter it to meet their specifications.

Some points of the summary, such as the information about fees, may not apply to every situation and lawyers are encouraged to edit as necessary.

The Lawyers Complaints Service would appreciate any feedback on the above article or your experiences if you decide to adopt the short one page summary terms of engagement. Feedback can be directed to TOEfeedback@lawsociety.org.nz.

Lisette Solis has been employed by the New Zealand Law Society to analyse complaints and other communications considered by the Lawyers Complaints Service.

PRACTICE

The disruptors are coming

BY VALERIE BLAND They are invading every industry! You have been warned!

In fact, they are already here amongst us…

It may be the impact of Halloween occurring when this article was being finalised, but it seems easy to fall prey to a gothic horror vibe when describing recent trends in the delivery of legal services and the impact of the fourth industrial revolution. However, since I have recently set up my own firm, Extra Law, and interviewed a couple of others in similar Alternative Legal Services Providers (ALSPs), I can – as one of those ‘disruptors’ – show the invaders in a more friendly light.

What makes legal services ‘alternative’ according to overseas commentators is that “they are delivered by a model that departs from the traditional law firm delivery model, for example, by using contract lawyers, process mapping or web-based technology” [Thomson Reuters Legal Executive Institute, in partnership with the Georgetown University Law Centre for the Study of the Legal Profession and the University of Oxford Saïd Business School: ‘The 2017 Alternative Legal Service Study – understanding the growth and benefits of these new legal providers’. And, I discovered, although New Zealand’s ALSPs are part of a worldwide phenomenon stemming from technology advances and value for money drivers, the individual manifestations can come about for very human reasons.

41

PRACTICE

Extra Law is the latest of the three ALSPs featured in this article to commence business (October 2017). Helen Mackay’s new firm, Juno Legal, began in April 2017 and Sarah Taylor joined lexvoco in July 2017 as part of the expansion of lexvoco’s operations from Australia to New Zealand, which began in 2016. All three ALSPs look to provide their clients with lawyers on a flexible basis delivering legal services as a temporary team member within the organisation.

lexvoco Sarah Taylor’s ILANZ scholarship paper (Valuing our Lawyers: The untapped potential of flexible working in the New Zealand legal profession) was the catalyst for lexvoco approaching her to join them. Lexvoco’s values, including “life’s first; work’s next” and “think differently”, resonated with Sarah and she leapt at the opportunity to have a platform to implement many of the findings from her paper, including the ability to connect great lawyers with in-house legal teams when they need help. The fact that Sarah could work on her own terms, while also continuing to work as an in-house lawyer at Tasman District Council, sealed the deal. Sarah likes the fact that lexvoco doesn’t just offer a resourcing solution, but also can also propose other continuous improvement solutions for in-house legal teams. This includes the use of technology such as the MyDay app, developed out of lexvoco’s Australian technology department, that recently was a 2017 Legal Innovation Index winner. As Business Development Manager for lexvoco, Sarah’s role is to make the connection between the client’s need and the right solution, which may involve people, technology, or a process or system improvement.

Juno Legal As for Helen Mackay, she didn’t see why the legal profession needed to be so binary – you either had to work all hours of the day or you got out. Her primary driver in setting up Juno Legal was greater equity in the profession: providing a vehicle for talented lawyers who wanted flexibility in their legal practice, either because of their business interests on the side or their parental responsibilities, or because they were ‘wise heads’ wanting to achieve a later career/life balance. From a business point of view, Helen identifies with the Richard Branson school of thought, that happy employees means happy clients. Juno Legal also helps in-house legal teams lift their performance and sharpen their focus through their consulting practice and provides information technology consulting for legal teams, via their experienced legal technologist, Matt Farrington.

42

Extra Law Extra Law arose out of my own experience as a government in-house lawyer. At times, I wanted to find on-demand experienced temporary team members to share the workload, but couldn’t. So it’s a personal crusade with a simple message: clients are busy and sometimes they just need an experienced extra pair of hands in their team as quickly, seamlessly and cost-effectively as possible. I previously worked in private practice, but working as an in-house lawyer in government felt right, just as it felt wrong to be too busy to give individual pieces of work the attention they merited. Creating my own ALSP law firm has been fun, and Extra Law is a vehicle to provide benefits for future team members as well as for myself and fellow government in-house lawyers. Benefits such as limiting unhealthy stress, fully utilising all of our legal training for a more rewarding experience, facilitating career progression, and assisting the Government Legal Network with its goal of increasing collaboration of lawyers in government. As well as just getting the interesting work done.

Although we don’t completely agree on a label – I like Alternative Legal Services Provider, whereas Helen likes “Bespoke Legal Services Provider”, and Sarah prefers not to use a label – we can agree that innovation is a key feature of what we are doing. As practitioners pioneering a new option of providing legal services, we see the advantages that its inherent flexibility can provide to clients, and even how it can enhance rather than disrupt the legal service provided by traditional law firms. And we are not afraid to collaborate on an occasional article like this one…

So perhaps it seems less like a horror movie and more like the ‘giving and receiving’ vibe of Christmas. Disruptors, like Extra Law, lexvoco and Juno Legal are here, but we’re out to show that our presence can be a good thing – even a present.

Extra Law founder Valerie Bland  valerie.bland@extralaw.co.nz worked in private practice for 15 years and the Ministry of Education for 5 years before establishing Extra Law Ltd.

PRACTICE

PRACTICE

Time for a CPD warrant of fitness

BY KEN TRASS Recently I received in the mail a friendly reminder that my car needs a service and WOF. And, like your vehicle, it’s important to have regular check-ins with how your CPD is progressing and if anything needs servicing. We know from experience that if we have neglected that maintenance then, come WOF time, we’re more likely to uncover issues needing repair, often within a tight timeframe.

Looking under the hood of the CPD programme The CPD programme is rapidly approaching its fourth cycle. The CPD scheme was launched in October 2013 and requires each lawyer to maintain a CPD plan and record and submit a yearly declaration confirming that their plan is compliant with the CPD rules.

This year 99.87% of the profession made timely CPD declarations and, of the 1382 CPD plans that were audited, 83% were fully compliant with the CPD rules.

This third round of CPD audits, shows that the vast majority of the legal profession are engaging fully in CPD and, importantly, recognising its value as a tool to help maintain professional competence.

Many of the CPD plans submitted this year displayed far more structure in the planning and reflection aspects than in previous years with many lawyers focusing on considering how to get the most value out of their learning activities long-term. More lawyers are also being more selective in what they record on their plan with a larger number focusing their energies on one or two areas of learning that were of most importance to them.

Parts and materials NZLS has been fine-tuning its CPD resources, adjusting these to keep CPD moving forward.

What NZLS is driving for is an educative and supportive approach to help embed and engage the profession in what CPD is all about – increasing reflective practice, self-directed learning, and professional competence.

Many lawyers have reported that this approach has been appreciated.

Over the last three years NZLS has communicated with a large number of the profession to give guidance and support relating to CPD matters with the following being the main areas of focus: • The flexibility of the CPD programme, • The components of a CPDPR and what a CPD declaration means,

• The need for careful and specific planning regarding your learning, and • Approaches for developing reflective practice skills.

Fine-tuning your CPD engine We are now two thirds of the way through the 2017-18 CPD year. This is a good time to review your CPDPR (CPD plan and record).

To remain competent as a practising lawyer, it’s important to keep reviewing how you are developing as a legal professional and how this is translating into practice and, ultimately, the client experience.

Quarterly reviews are a good start.

In reviewing your CPD plan, the following questions may assist: • What activities have I planned for in this year’s CPD Plan?

• Why did I select these activities and how will they help my practice? How will I assess this?

• Have the activities selected had the intended effect, tangible or intangible? What is my evidence for this?

• How are the activities I am engaged in enhancing my competence and the quality of legal services that I deliver to my clients? How will I know this?

• Have I met my goals and objectives? If not, where am I up to so far?

• What further learning or professional development is required in any of my identified areas?

• How is this information linked to what I completed last year and what did I/will I carry forward?

The answers to these questions may mean your learning plan now changes.

When you are planning your learning, you may be choosing learning

goals that traverse two or more CPD years – that is fine so long as your yearly minimum (reflecting on a minimum of 10 hours) is met. Your CPD plan can also be on many levels: • Short-term activities that you’re planning for this CPD year that help meet an identified need (or part need), • Activities that you are considering, or have planned but not yet fully completed, or • Learning goals that have not yet been met, or that are awaiting appropriate activities to present themselves so they can be completed.

Goal-setting with measurable outcomes can assist in the above process. It is important, in the development of CPD, to plan, implement, evaluate and reflect.

Things to check off before you drive away • Your CPDPR is up to date, including: your identified learning needs, and reasons for them and your personal written reflections on each completed activity.

• You have set aside time in your calendar to revisit your CPDPR before March 2018 to ensure you can make a timely declaration.

• You are on track to declare on or before 31 March 2018.

Some NZLS support resources are: • 4 movies (1500+ views) • 1 archived webinar (1100+ views) • Guidelines to the rules • CPD planning template • CPDPR exemplars • 10 LawTalk articles • Extensive FAQs We’ve connected with: • 4,400 lawyers via CPD audits • Over 3,000 lawyers through the 2016 review of CPD 43

LETTERS

LETTERS

Letters to the Editor Let’s relax the ban on employed lawyers doing other work The Lawyers and Conveyancers Act 2006 bans employed lawyers from doing legal work outside their employment, other than through community law centres. Breaching the ban means a lawyer is deemed by the Act to be guilty of professional misconduct.

The ban significantly limits the scope for employed lawyers to aid access to justice and, because community law centres are ill-suited to helping with litigation and other protracted disputes, is especially detrimental to access to justice through the Courts or other tribunals.

I have suggested to the Law Society that the ban should be relaxed. In response, the Society wrote “while it is a very commendable suggestion to take this wider, the logistics could be rather problematic”, going on to cite the difficulty of amending the Act. The Society also pointed to “potential risks and unintended consequences… [f]or example, should a first year graduate in-house lawyer be able to provide legal advice to the public outside the supervision of the likes of a senior lawyer working in the area (as they get in the community law centres).”

Despite what the Law Society has said, it is impossible to imagine any risks to the public if employed lawyers could do legal work outside their employment, on the following basis: 44

• The work is done for free (pro bono), • The lawyer has his or her employer’s permission, • The lawyer has done continuing professional development in areas appropriate to the type of pro bono work the lawyer does, • The lawyer has, say, two years of post-admission work experience.

For the legal profession not to actively promote the changes required to allow employed lawyers to provide legal work outside their employment – on something like the above basis – could look suspiciously like our profession is less interested in aiding access to justice than it is in protecting the livelihoods of fee-charging lawyers.

The September 2017 edition of the New Zealand Law Journal contains a full article by me on this subject.

John McLean Head Counsel, Rabobank New Zealand

Comments by Mary Ollivier, NZLS General Manager Regulatory The involvement of all lawyers in pro bono work (both legal and non-legal pro bono service) is supported by the Law Society.

Nevertheless, the consumer protection focus of the Lawyers and Conveyancers Act seeks to protect fee paying, low bono and pro bono clients to the same extent.

One of the important safeguards for vulnerable clients is the provision of client care information. This includes client engagement letters and information about when and how fees and disbursements will be charged and how services are going to be performed.

While pro bono services are generally understood to mean legal services delivered for no reward (or for a lower fee in low bono services) as part of a public service there is some confusion about what work does qualify. In some cases, a lawyer is carrying out free private work. Is pro bono work any free private legal work or is it something else?

Mr McLean makes a good point concerning the need for opportunities for employed lawyers to provide pro bono services. We agree that options should be available for employed lawyers. There are already options such as through the community law centres, citizens advice bureaux and other NGOs. There are also some more tailored options – there is for instance no reason why law firms can’t offer pro bono services using in-house lawyers, with whom they have an association, on a limited employment basis, just for that work. There are also some interesting new models of law firms based on social enterprise models which look to provide pro and low bono services funded by other fee income. It will be interesting to see if this develops further in New Zealand.

All jurisdictions require compliance with the regulatory requirements for those lawyers doing pro bono legal work. In many regions the main barrier is not the minimum regulatory standards required but rather the need for professional indemnity insurance. In some jurisdictions, this has been mitigated. In New Zealand it is not required. Having said that, it is wise to make sure anyone doing pro bono work has insurance in place. Community law centres and other advisory services usually have this in place for their volunteers.

M E D I AT I O N

MEDIATION

Changing the way we argue Part 3 – Arguments-as-war and mediation

BY PAUL SILLS The current adversarial dispute resolution paradigm has significantly constrained the way that mediation has developed. Let’s look at some examples.

The traditional one day, late stage mediation Research by Grant Morris of Victoria University indicates that 94% of all commercial mediations in New Zealand are conducted using the traditional one-day mediation model (Commercial Mediation in New Zealand Project Report).

The traditional one-day mediation frequently occurs too late in the life of a dispute. Parties often arrive at mediation as a precursor or adjunct to litigation, which looms in the background and indirectly influences the mediation process.

For example, by the time the parties mediate they are often too focused on their legal rights and are increasingly polarised. By focusing on rights-based arguments and the adversarial legal process (pleadings, discovery, briefs of evidence, etc) little or no time is given to identifying and exploring underlying needs and interests.

This model is within the comfort zone of most lawyers.

Lawyers are familiar with adversarial tactics, the dissection of the other parties’ legal and factual positions, and the limited negotiation tactics needed to achieve settlement.

Concepts such as creative outcomes, empathetic listening, synergies, win-win outcomes, etc are terms that, while bandied about in mediation, are not often part of the process. They make for good soundbites but little else.

The adversarial approach coupled with the late timing of mediation means the parties are bullied into settlement: by the process they experience leading up to mediation, on the day, and by the cost and uncertainty of a trial just around the corner. This is not a collaborative environment in which negotiations on the interests and needs of the parties can take place.

As a result, mediations tend to approximate what the parties consider is likely to happen in court and the fruitfulness of any subsequent enforcement action.

At best, a late stage mediation settles the dispute, but usually does not repair or improve the relationship

between the parties. That alone is a significant lost opportunity.

resolution is not owned by those who are legally trained.

Lawyers as mediators

The role of emotions and feelings

The “over lawyering” of mediation is considered by some to be a major issue in dispute resolution today (eg, Tony Willis’ comments in “Overlawyering of ADR a major issue”, page 27, LawTalk 853, 24 October 2014.)

A large number of mediators are legally trained (particularly in the area of commercial mediation). The ranks include retired judges who have moved from the bench into the arbitration and mediation space.

The dispute resolution institutions have a significant number of members with legal training, and a disproportionate number of those members sit on the committees whose decisions propel the future direction of dispute resolution. This is an issue because most lawyers struggle to get past their training, which exalts critical analysis, deductive reasoning and the Socratic method. They risk developing a narrow theory of dispute resolution based upon precedent and process.

Lawyers, by default, tend to make dispute resolution an adversarial process. It should not be. Evidence for this is found in the development of dispute resolution itself. Most of the important advances have come through the collaborative efforts of individuals who came to dispute resolution through different avenues.

Cross-disciplinary work involving law, economics, psychology, organisational behaviour, and sociology have been invaluable. For dispute resolution to flourish, we need to capitalise on the differences in the various fields and maintain productive working relationships in order to share resources, capability and understanding. Dispute

This is an area that is not well addressed by the adversarial model or the one day mediation. Nobody with experience in dispute resolution would deny that emotions and feelings play a significant role, but very little has been done to examine that role. There is little helpful advice for those who engage in dispute resolution regarding the role of emotions. For example, advising the parties to “get over themselves” and to stay objective does not work. We need to develop a better understanding of the ways that emotions and feelings (and in particular, shame, anger, hope and fear) affect the parties in dispute and influence their reactions to challenges. We need to develop mechanisms for recognising and working with these complex issues.

The above examples are, I accept, an over-simplification of what occurs in the market. There is great work being done in the areas of early facilitation, collaborative and transformative mediation. There are legally-trained mediators who have successfully disconnected from the argument-as-war metaphor and have embraced all the complexity of the human condition and our relationship with conflict. However, the research of Grant Morris indicates we have a long road of change ahead of us.

Auckland barrister Paul Sills  paul.sills@paulsills.co.nz specialises in commercial and civil litigation. He is also an experienced mediator.

45

TIKANGA AND TURE

TIKANGA AND TURE

The Victoria University of Wellington Māori Law Students’ Society and its inspiring initiatives

BY CARWYN JONES Ko te manu e kai ana i te miro, nōna te ngahere Ko te manu e kai ana i te mātauranga, nōna te Ao The bird who feeds on the miro berry has the forest The bird who feeds on knowledge has the world For me, one of the real joys of teaching at a law school is seeing our students using their developing skills and knowledge of the law to engage in the world around them and to work towards positive change in our society. Over the last few years, the Māori Law Students’ Society at Victoria, Ngā Rangahautira, has been responsible for two inspiring initiatives that I’ll share a little about in this piece: Te Hīnātore – a programme of occasional seminars on tikanga and law; and Ngā Kaiaronui – a group focused on proactively participating in law reform processes.

Te Hīnātore developed from a group of our students identifying the value of exploring the relationship between New Zealand law and Māori law (as incorporated in tikanga Māori). Initial conversations about how the students might encourage and support a greater understanding of these two legal traditions began after a presentation from Justice Joe Williams in which he addressed, amongst other things, the creation of a course for members of the judiciary that focused on issues of law and tikanga.

Our students were interested, and heartened, to hear that judges were taking seriously the need to consider these issues. However, some of them were struck by the fact that this was retrofitting to some extent and observed that, ideally, it would be better to encounter ideas about tikanga (as the Māori legal system) at law school, at the same time as being introduced to ideas about the New Zealand state legal system, common law, and international law.

The students began discussions amongst themselves 46

and with faculty members about ways to explore these ideas. Eventually, they arrived at the idea of inviting guest speakers to participate in wānanga or discussion sessions that would address different legal topics and problems and consider how Māori law would deal with the issue and how the New Zealand state legal system would deal with it. For example, one session focused on the ground-breaking Whanganui River settlement – Te Awa Tupua – and was based around a facilitated conversation between speakers who could variously speak to the technical legal structure of the settlement and also the tikanga/Māori legal principles that are recognised in that settlement. These sessions came to be known as Te Hīnātore which can mean ‘a glimmer of light’ or ‘a glimpse’ or even ‘enlightenment’. The conversations that came out in these discussions were incredibly rich and the students saw them as being of real, tangible value to their legal development and something that is an enhancement to the LLB qualification they are working towards.

Another student-led initiative of note is the establishment of a group called Ngā Kaiaronui. Ngā Kaiaronui takes its name from the ‘kete aronui’ one of the three baskets of knowledge in Māori tradition. This is the basket of knowledge “of aroha, peace and the arts and crafts which benefit the Earth and all living things – one of the three baskets of knowledge. This basket relates to knowledge acquired through careful observation of the environment. It is also the basket of ritual, of literature, philosophy and is sometimes regarded as the basket of the humanities.” ‘Ngā Kaiaronui’, therefore, refers to those people who work with that knowledge and

TIKANGA AND TURE

in those fields of endeavour. Ngā Kaiaronui is a group of students who have come together to proactively engage in law reform processes.

The group has now made several submissions to select committees on issues they are concerned about, and especially issues of particular relevance to Māori. One of the first matters addressed by Ngā Kaiaronui was the reform of Te Ture Whenua Māori – the Māori Land Act. As this is an area in which I work, Ngā Kaiaronui invited me to an initial meeting to provide some technical guidance on the Te Ture Whenua Bill, then before the Māori Affairs select committee.

I was expecting that there would probably be half a dozen or so students interested in working on the submission. I was completely taken aback when I arrived in the meeting room to find about 30 students there, ready to get to work. Because of their numbers, the students were able to break into groups to consider different aspects of the bill.

I was impressed with the way they all stuck with the work of drafting the submission and when it came to speaking to the submission,

The conversations that came out in these discussions were incredibly rich and the students saw them as being of real, tangible value to their legal development and something that is an enhancement to the LLB qualification they are working towards.

a large group of those who had been involved went to Parliament to support the designated speakers. These students are building up valuable expertise in terms of preparing and presenting submissions and have helped to run workshops for members of my own community who wanted to make submissions on our Treaty settlement bill.

It is deeply inspiring to see our students engaging with the legal world and the Māori world in ways like this and this also points to an area in which the strength of the profession is developing at pace.

Dr Carwyn Jones  carwyn.jones@vuw.ac.nz is a Senior Lecturer at the Victoria University of Wellington Faculty of Law. He will be one of the contributors to a regular column on Māori legal issues and the practice of law.

Providing Professional Indemnity and specialist insurance products to the Legal Profession Visit www.justitia.co.nz for further information and application forms Or Contact: Mr Ross Meijer, Aon New Zealand 04-819-4000 ross.meijer@aon.com

47

PRACTISING WELL

PRACTISING WELL

How to truly enjoy your holiday

BY KATE GEENTY During the Christmas and New Year holidays, how can you make sure you don’t waste your time off stressing about work?

There’s no point heading to the beach if you’re going to spend all your time stewing over how much work you think you should be doing, or you’re too busy looking at your emails to check in with your family.

To make the most of your break take some steps to ensure you’re not spending your holidays tied to your phone.

Make a list – and check it twice to limit the amount of time you spend looking at work messages.

Rather than constantly looking at your phone throughout the day, set specific times to sit down and check your inbox. It might be the same time each day, or you might need to change it around to fit in with what your friends and family have planned. Either way, set a time limit and stick to it. “Restrict the amount of time you look at emails and make yourself accountable to your family,” says Ms Pearce.

Remember, everybody needs a break from work. Constantly thinking about work without allowing yourself a chance to unwind and switch off is a recipe for burnout.

Set boundaries

Does going on holiday make you feel sick?

The easier you make it for people to contact you, the more likely it is that they will. “Force people to work a bit harder. If they want to reach you, don’t be too available. We educate the people around us how to treat us. If we make ourselves too available all the time we deserve what we get,” says Ms Pearce.

She suggests creating an out-of-office email message that says you’ll not be checking your emails (or only checking them infrequently) but that people can call you on your mobile if it’s an urgent matter. “People might whip off an email quite randomly, but they won’t generally call somebody unless it’s a real emergency.

So, you’re forcing them to do something extra than just whack out an email.”

Does your head start pounding or your throat scratching not long after you power down your computer for a wellearned break? For some people, the stress of going on leave is enough to make them ill. There’s even a name for it – ‘leisure sickness’. The term was coined by Dutch academics in a 2002 study that looked at how and why people get sick during weekends or holidays.

The study, which looked at the experiences of 1,893 people, found that leisure sickness is a relatively common condition. The most frequently reported symptoms were headaches or migraines, fatigue, muscular pains and nausea. The researchers found that the risk factors for leisure sickness were a “high workload and person’s characteristics, namely the inability to adapt to the nonworking situation, a high need for achievement, and a high sense of responsibility with respect to work”.

If you must check emails, restrict the time you spend doing so If the thought of switching off your email completely during your holiday makes you break out in a cold sweat, you should still try 48

◂ Rose Holley bnd

A couple of weeks before you go, start looking at your workload.

Sort out what needs to be done before you go, what can wait and what can be handed over to someone else. Leaving this until the last minute is more likely to induce anxiety and runs the risk of things being missed.

Time management expert, Robyn Pearce, suggests making lists - or even physical piles - of work, sorting your tasks into things that can be finished before you leave, work that can be delegated to a colleague, and (if you must) work that you can take away with you. She says this exercise is like packing your bags. “If you start in advance, you’ve got more time to then prune it back, so you’re only taking the things that you really need to take.”

N E W L AW Y E R

NEW LAWYER

‘Tis the season of summer clerks

BY KATIE COWAN Hello, lovely summer clerks. As you undertake your first work in the legal industry proper, allow me to extend a warm welcome to you, in the form of a non-exhaustive list of things to keep in mind as you go about your clerkship.

This column was inspired by researching what advice summer clerks generally get, and coming upon well-meaning but terrifying advice from American mega-firms like, “remember you are being constantly watched!!!”.

I think we can do better: Expect to know very little, and know that anyone giving you work expects you to know very little. Summer clerks are hired more for their promise and attitude than their existing knowledge, so do not worry if you have to research what everything is all the time. The summer clerk who asks questions, is eager to learn, and carefully records/researches their instructions is the summer clerk who is beloved and asked back.

Hopefully, you will not start your summer clerkship, as I did, right as a global financial crisis hits. Seeing enthusiastic young people who are about to graduate into a job market that is suffering mass redundancies makes everyone uncomfortable.

Do not worry too much if you are not having the best possible experience at all times. Adjusting from the autonomy of a law school day to being present, alert, and nicely-dressed for an eight hour+ day, all while trying to smile and impress everyone at all times is exhausting and bewildering.

There is a lot to love about summer clerkships, but do not feel there is something wrong with you if it is also hard-going.

Try not to wear any clothing with writing on.

Do try and keep up with as many of the email alerts and legal updates the industry

sends out as you can. They help you feel like you know what is going on and that you are a part of the wider lawyerly family.

Most firms have systems of precedent documents that you can access to see how things are usually done. Important: You do not have to draft mortgages from scratch.

Try not to be gross. By that I mean try not to do anything that would force someone to have a meeting with you about what “being professional” means.

Know that if you had pre-existing mental health issues it is okay that these did not get resolved by starting a prestigious summer clerkship. It turns out that mental health issues rise and fall away independent of

nice things that happen to you.

If mental health issues arise during your clerkship, know that that is not uncommon, but it will feel terrible and terrifying, and that is okay because it is a terrible and terrifying thing. If your firm has the EAP (Employees Assistance Programme) system, use it as soon as the thought, “Should I get some help for this?” occurs. If your firm does not use the EAP system, use the Law Society’s Friends’ Panel. They are discrete, compassionate, wonderful people; I have relied on them many times. This industry knows all about managing mental health while working, and there are confidential means to get help and perspective.

If/when you make a mistake, tell someone right away. Mistakes are a painful but ordinary part of difficult work. Most of them are fixable, and it says more about you that you took responsibility than that

Friends to help those struggling at work The Law Society’s National Friends Panel is made up of New Zealand lawyers who are willing to be contacted on a confidential basis by fellow lawyers with questions or concerns relating to practice issues.

If you are worried by something related to your work as a lawyer, if you’re having finding it hard to balance work demands with your family or friends, or if you have concerns totally unrelated to your work, you could find it helpful to discuss things with someone who understands the pressures of life as a lawyer.

Panel members can draw on their own experience to suggest ways for members to approach issues they face and can make recommendations about helpful resources available through the practising well initiative.

Areas where Friends may be able to provide a listening ear include: • Workplace issues (such as bullying, communication, harrassment, workload, career advancement or other employment-related matters); • Financial problems (personal or firm-related); • Partnership issues; • Tax problems; • Trust account problems; • Work/life balance; • Problem clients, files, judges or other counsel; • Office management; • Ethical issues; • Health and state of mind; • Using an alternate/attorney; • Where to next in my career?

Further information on the Law Society National Friends Panel may be obtained by contacting your local branch or visiting the National Friends Panel webpage on the NZLS website, in the Practising Well section under Practice resources.

49

PAT H WAY S I N T H E L AW

PATHWAYS IN THE LAW

you made the mistake in the first place.

Give your secretary a Christmas present. More generally, treat secretaries and support staff with the respect and humble gratitude you would a wise and benevolent fairy godparent. They invariably hold more institutional knowledge and practical wisdom than you can fathom.

If you can, soak up as many different areas as you can. As a law student you get an impression of particular practice areas as fun or boring but you cannot know from pure academics what they are like to, y’know, practise. If you’re in a commercial team, you might ask to tag along to a list appearance. If you’re in employment, you might ask if you can shadow someone as they complete a conveyancing settlement on a Friday. In doing this you might shock yourself by realising you hate public law and love tax.

Incidentally, see if you can get into the tax team. Tax teams are usually fun and weird and comprised of nerds, and their work is basically elaborate puzzles.

Finally, know that there is no “right” way to do a clerkship. I assume that you are hardworking and intelligent, eager to learn, respectful and professional. You would not have got the position if you were not. So, if I were to replace all of the above with a single notion, it would be simply to keep being those things, and to pay attention and reflect a lot on the experience as it is happening. That will take you far.

So good luck! We are all rooting for you.

An end of year wish ‘Tis the season of summer clerks and sunshine. What a wonderful combo. I wish all of you, summer clerks and everyone else, a season of rest and laughter and good food.

I look forward to joining you next year for an exciting 2018.

With love and warm regards, Katie

Katie Cowan is a former lawyer, now director of Symphony Law, a consulting practice for lawyers. She hosts The New Lawyer podcast, which can be found at  thenewlawyer.co.nz.

50

Cooper Legal

BY NICK BUTCHER About 99% of the work the lawyers at Cooper Legal do is around historic abuse and associated human rights claims.

And they’ve reached at least 700 settlements for victims of abuse who were in state care as children.

“That figure would be a conservative estimate,” says Cooper Legal principal Sonja Cooper.

The Wellington-based firm is also involved in employment law, medical legal issues, education, youth law and civil litigation.

Social issues were always at the forefront for Ms Cooper, who started out as a family lawyer over 30 years ago. She has also been a youth advocate since she was admitted. During those early years as a young lawyer working for law firms of varying sizes, she also practised both public and employment law.

“I was considered a sort of Jill of all trades and if there was anything extra in the litigation team that needed attention, I would often pick it up,” she says.

About nine years into her legal career, Sonja Cooper became a sole barrister and solicitor.

“At that stage I was still doing my core work of family, youth advocacy, general civil law, and employment and was then appointed a District Inspector of mental health in August that year (1995),” she says.

Human rights moves to the front Upholding human rights slowly took centre stage in her career and it was this work that would eventually bring Ms Cooper into contact with many people who had been abused as children while in state care.

She says 1995 was the year when the first of the historic child abuse cases came her way. Some of that work was instigated by lawyer Jill Moss. She was about to go behind the bench as Judge Moss and made some potential case referrals to Sonja Cooper.

“I also had a handful of historic child abuse claims that came from various other sources. One case I learned had come from a referral by the person’s hairdresser. They were all social welfare, either foster care or adoption cases,” she says.

The psychiatric hospital work came later.

The Limitation Act conundrum One of the biggest hurdles was the Limitation Act 1950 and whether the abuse claims could be filed because of the time lapse since the alleged abuse.

The revised Limitation Act 2010 is not retrospective – unless defendants agree.

“This means most clients will be covered by the Limitation Act 1950 – which requires claims of our kind to be brought within two years of the cause of action arising (or within two years of

PAT H WAY S I N T H E L AW

Some of these people are eight or even 14 years into the process and they’re only now settling. It’s understandable, and some of the younger ones are incredibly damaged by their experience because it was more recent than the historical cases

▸ Partner Amanda Hill (left), and principle Sonja Cooper. adulthood) or within six years if there are reasonable grounds for delay.

“If a client is already in their 40s or 50s, even their 30s, by the time they instruct us there are real hurdles to get over,” she says.

Ms Cooper says there are two ways through this obstacle.

“One – if the person reasonably did not understand there was a link between the abuse they suffered and their clinically recognisable damage, and two – if the person has been under a disability – a clinically recognisable condition that has prevented them from instructing a lawyer.

“The cases we won in 2002/2003 in the Court of Appeal meant that many claimants should have had a good chance of getting through either or both of these hurdles.

“However, the courts started taking a more rigid approach from 2007 onwards, which meant that only a few would be able to surmount the barriers,” she says.

A decision of the Court of Appeal in 2015 has somewhat ameliorated the harsh position which existed for some years, and the 1950 Act was amended to give courts a discretion to extend time for specified victims of abuse, although the scope of that has not yet been tested and the wording is pretty complex.

Law firm partner, Amanda Hill, adds that the Limitation Act 2010 is much kinder to young victims, but provides little

assistance to those who suffered abuse prior to 2011.

“Outside of the court, our clients have the protection of our agreement with the Ministry of Social Development to ‘stop time’ for limitation purposes. However, any claims progressed to litigation have to deal with it and the cost of doing that is high as we need a full psychiatric report. The professionals who are willing and qualified to do the reports are rare,” Ms Hill says.

She says this also means that claims progressed to a trial are carefully vetted for Limitation Act potential issues.

“Scotland has just abolished its

Limitation Act for claims like ours. Many Commonwealth jurisdictions are now abolishing limitation periods in historic child abuse claims, including Australia.”

No end in sight for abuse claims Twenty years after Sonja Cooper’s initial work in this area, the wheels of justice are still turning slowly.

“We have over 800 current open files we are working on and yet we have already settled hundreds of cases. We settled 320 psychiatric hospital cases in 2012,” she says.

There have also been a significant 51

PAT H WAY S I N T H E L AW

number of historic church abuse cases involving a range of denominations.

There was a time when representing people who were abused in state care almost came to an end for Cooper Legal.

“We lost two trials in 2007, and in 2008 Legal Aid sent us a letter informing us they were about to embark on a process of withdrawing legal aid for about 600 of our clients. We were also subjected to a major audit because we were one of the biggest recipients of legal aid,” she says.

“An audit that we came away from perfectly clean,” adds Amanda Hill.

“It was a really dark period for our firm. I had to tell many of my staff that I couldn’t guarantee any ongoing work, however we came back from it all,” Ms Cooper says.

Media coverage has been critical to its momentum and pace.

“It’s been incredible, as through media exposure we got the Human Rights Commission on board to publically back the work we do, including the need for an inquiry.

Journey to partner Amanda Hill began working at Sonja Cooper’s firm in 2005, and was a junior counsel for Ms Cooper at a 2007 trial lasting nine weeks.

After the trial and the 2008 Legal Aid debacle, she decided to look at other areas to practise law in.

That included working in an insurance litigation team, and a stint as an employment lawyer at NZPost.

“At that point I felt I’d moved away from my original goals and it was through an email to Sonja about a job at the Ministry of Social Development that Sonja asked if I’d consider coming back to work for her,” she says.

That was 2014, and Ms Hill was hired as a senior associate and is now a partner, and things have never been busier.

Sonja Cooper says there is little chance a projection by the Ministry of Social Development that historic claims would be completed by 2020 will happen.

“Given that we are still receiving instructions, this is not possible. In October alone we opened 67 new legal aid files and most of them are new clients with claims against the Ministry of Social Development for abuse they suffered as children in state care,” she says.

Large workload “We are currently working six days a week.

We’ve just got so much. Our clients range in age from 17 to 80-years-old,” Ms Cooper says.

You’d think the historical claims would be the most difficult but Amanda Hill says it’s the younger people’s claims that often prove the most challenging.

A sign of the current times perhaps because we live in the digital information age.

“There’s so much information from so many sources and all claims that come 52

In October alone we opened 67 new legal aid files and most of them are new clients with claims against the Ministry of Social Development for abuse they suffered as children in state care

after 1990, you have a potential Bill of Rights claim too. So the work that goes into the cases for young people is a lot harder because of these complexities,” she says.

Ms Hill says many of the younger clients are also second generation welfare children which can cause conflict of interest challenges.

“Their parents were state wards. So it could be their father or mother was abused in care who has made an allegation against the state, and then his or her children could be making a claim against him or her for similar abuse.”

Drug and alcohol addiction is a common thread in many of their clients.

Not only are the legal claims complex, but the claimants are often just as complex and damaged.

As lawyers, Sonja, Amanda and their team also have to weather the frustration of their clients who have lived with memories of their abuse for long periods and often want and demand an instant fix.

“Some of these people are eight or even 14 years into the process and they’re only now settling. It’s understandable, and some of the younger ones are incredibly damaged by their experience because it was more recent than the historical cases,” she says.

Research is a massive part of preparing for the kind of work they do at Cooper Legal. Sonja Cooper has just completed her Masters of Laws and is in the early stages of embarking on a PhD. “Research is absolutely critical here.

There is very little New Zealand jurisprudence so we have to watch very carefully at what’s going on in England, Canada and Australia particularly where new laws are being developed.”

Cooper Legal are members of the Association of Child Abuse Lawyers which is based in England and the Australian Lawyers Alliance, which has helped build a network of lawyers involved in abuse cases internationally.

“We are very isolated in New Zealand.

You could count on two hands the amount of lawyers that do human rights work in this country,” she says.

The legal team It’s an all-women team of seven lawyers at Cooper Legal but not for any particular reason as they’ve had men work there before.

Courtney McCulloch is an associate and has been with the firm for over eight years. She is currently working three days per week on a flexible work arrangement, having returned to work after having a baby last year.

She has a degree in psychology, a useful skill when dealing with and understanding some of her clients.

“Being able to work with people who have both mental health and legal issues was very appealing to me. It’s been a really good fit for me as I never thought I’d be using that degree in my law practice,” she says.

Olivia Taylor is the newest member of Cooper Law. It’s her first job in law. Previously, along with some short internships, she worked in Uganda with refugees including women who had been abused through genital mutilation.

“It was through being in the audience at a lecture that Sonja Cooper was presenting that compelled me to want to work here,” she says.

Toni Knipping has been with the firm for about two years and it was her first job after graduating from law school.

“Studying politics along with law got me interested in human rights and I also volunteered for the Wellington Workers Rights service which was advocating for mostly low income workers. I originally applied for a legal secretary role but Cooper Law turned around and offered me a solicitor role instead. I think you need to be passionate about human rights law or you’d find it very difficult to endure the kind of work we do,” she says.

Lydia Oosterhoff originally studied journalism before branching into law. She then worked in communications before travelling overseas where she worked in Holland for a public broadcaster that specialised in human rights stories and the rights of the child.

When she returned to New Zealand Miss Oosterhoff worked in Government communications and policy advisory before working

for the Public Defence Service and then Cooper Legal.

“You definitely see a different side of New Zealand. People have said to me, they could never work with the clients I work with, but then I’d struggle to work with many of the corporate clients they work with. On a personal level it’s very rewarding work that we do here,” she says.

Esther Kim says when she was studying law her plan was always to work for the most vulnerable people in society.

“I grew up in South Auckland and a lot of my old friends were in and out of the District Courts and had CYFS (Child Youth and Family) involvement in their home lives. I saw how this played a part when they became part of the justice system.

They’re people that need representation from people who see them on an equal footing,” she says.

Miss Kim has also been a volunteer for several community law groups including the Otara Community Law Centre.

Essentially, the sort of lawyers Cooper Legal look for when hiring are those who have good grades in their law degree because the work is intellectually challenging. They must also have an ability to connect with people and prove they have been involved in voluntary work for community law centres or other related advocacy work.

53

SPOTLIGHT ON LEGAL AID

ACCESS TO JUSTICE

Spotlight on legal aid

BY GEOFF ADLAM Highest average gross legal aid payments, year to 30 June After dipping to a low of $124.6 million in 2014, gross legal aid payments have risen over the past four years to $143.4 million in the year to 30 June 2017.

Looking back over the seven years to 2011 – just before the major changes to legal aid eligibility and provider status were made – some firm trends have emerged. The average payment per provider has steadily increased after bottoming out in the 2012/13 year. The median (middle) payment per provider has risen noticeably in the last three years. The number of legal aid providers who have received a gross payment has fallen each year.

The information released by the Ministry of Justice shows the gross amount paid to listed providers exclusive of GST. It includes fees claimed on behalf of other listed providers, plus disbursements for general office costs, travel costs, and special disbursements – which include fees for agents, expert witnesses, forensic tests, interpreters and special reports (such as medical and valuation reports).

Major changes to the legal aid system began in 2011, when the Public Defence Service was expanded to take criminal legal aid work and fixed fees were introduced.

Controls on legal aid in Family Court proceedings were introduced in 2012. The impact of the changes can be seen in the table:

Top centres over the past three years 2017 Kaikohe

$290,875.60

1st

Whakatane 2nd

$270,322.84

Otaki 3rd Whanganui 4th

$264,074.56 $225,485.38

Rotorua 5th

$212,580.91

Gisborne 6th

$205,434.38

2016 Kaikohe

$327,990.85

1st

Otaki 2nd Whanganui 3rd Gisborne 4th Whakatane 5th Rotorua 8th

$313,790.40 $222,934.84 $203,605.73 $196,862.00 $181,546.81

2015 Kaikohe

$291,906.76

1st

Otaki 2nd Whanganui 3rd Whakatane 4th Rotorua 5th Gisborne 6th

$276,114.56 $195,960.51 $188,654.81 $181,220.29 $176,417.38

Gross legal aid payments, year to 30 June Year

Providers

Average

Median

2011 $154,090,071.28

1488

$103,555.16

$62,257.61

2012 $148,306,784.40

1465

$101,233.30 $64,152.27

2013 $130,258,884.90

1311

$99,358.42

2014 $124,580,223.80

1240

$100,467.92 $63,064.61

2015 $130,215,953.30

1224

$106,385.58

$68,147.22

2016

$134,759,778.10

1210

$111,371.72

$73,528.42

2017 $143,379,904.64

1193

$120,184.33 $83,152.80

54

Payments

$63,132.73

There is, of course, a huge variation in the amounts paid to a listed provider – and the total payments at the top and lower end are similar but with a big disparity in recipient numbers. In the latest year, six providers (0.5% of the total) received over $1 million in gross payments (5.5% of the total payments). Just over one-third of all providers – 34.5% – received gross payments of less than $50,000 (5.7% of the total gross payments made).

SPOTLIGHT ON LEGAL AID

Gross legal aid payments, year to 30 June 2017 Gross payments

Providers

% Providers

Total Value

% Total Value

$1 million plus

6

0.5%

$7,816,151.33

5.5%

$500,000 to $999,999

25

2.1%

$16,978,554.51

11.8%

$200,000 to $499,999

140

11.7%

$42,469,018.79

29.6%

$100,000 to $199,999

335

28.1%

$47,140,869.79

32.9%

$50,000 to $99,999

276

23.1%

$20,696,075.31

14.4%

$30,000 to $49,999

120

10.2%

$4,753,410.40

3.3%

$10,000 to $29,999

146

12.2%

$2,931,252.52

2.0%

$1 to $9,999

145

12.2%

$594,571.98

0.4%

Location The wide variations continue when it comes to the location of providers who received payments. A number of centres had a high average and median gross payment in the latest year, with all being high on the list in the two previous years. Kaikohe legal aid providers had the highest average gross payments over all three years.

Centres with more than two providers are included in the table:

Highest average gross legal aid payments by centre, year to 30 June 2017 Centre

Total

Providers

Average

Median

Kaikohe

$1,745,253.59

6

$290,875.60

$287,135.88

Whakatane

$1,892,259.89

7

$270,322.84

$171,460.91

Otaki

$792,223.69

3

$264,074.56

$110,872.62

Whanganui

$3,156,795.38

14

$225,485.38

$137,185.87

Rotorua

$6,590,008.14

31

$212,580.91

$137,212.17

Gisborne

$2,876,081.28

14

$205,434.38

$117,133.69

Paraparaumu

$586,361.37

3

$195,453.79

$154,434.01

Lower Hutt

$3,393,445.73

18

$188,524.76

$118,176.33

Pukekohe

$723,481.68

4

$180,870.42

$142,419.80

Palmerston North

$3,060,080.01

17

$180,004.71

$143,895.78

The number of listed providers who received a gross payment has dropped by 19.8% in the period from 2011 to 2017. The number of providers in most centres receiving a payment has fallen, although among the main centres there have been increases in Gisborne (up 16.7%), Invercargill (up 20.0%), New Plymouth (up 31.6%) and Whangarei (up 10.0%).

Providers receiving gross payments, year to 30 June Centre

2011

2017

Change

% Total 2017

Auckland

518

411

(20.7%)

34.5%

Christchurch

135

103

(23.7%)

8.6%

Wellington

100

74

(26.0%)

6.2%

Hamilton

95

72

(24.2%)

6.0%

Dunedin

63

45

(28.6%)

3.8%

Tauranga

46

43

(6.5%)

3.6%

Whangarei

30

33

10.0%

2.6%

Rotorua

37

31

(16.2%)

2.6%

Nelson

29

28

(3.4%)

2.3%

Napier

29

18

(37.9%)

1.5%

All Others

406

335

(17.5%)

28.1%

Total

1488

1193

(19.8%)

100.0%

55

A CC E S S T O J U S T I C E

ACCESS TO JUSTICE

New Zealand Criminal Cases Review Commission The Panacea to Miscarriages of Justice?

BY BRIDGET IRVINE The new Labour-led Government has wasted no time in responding to calls for an independent statutory body to investigate wrongful convictions. In fact, the very day the government was sworn into office, Justice Minister Andrew Little stated on RNZ’s Morning Report that the Government was “committed to establishing a criminal cases review commission to deal with miscarriages of justice”. We commend the new Government for engaging in the discussion. Any policy dialogue about miscarriages of justice is positive – it raises public awareness of the issue, and puts worthy cases at the forefront of New Zealanders’ minds.

The Government’s intention to introduce a criminal cases review commission has been met with considerable support, both from the public and from the legal and academic communities. This high level of support is unsurprising given that there has always been some unease with the current post-appeal pathway – the Royal Prerogative of Mercy (RPM).

The RPM is exercised on advice of the Minister of Justice and, as such, there remains real concern about the separation of powers between the executive and the judiciary. One commonly held perception is that other political drivers – for example, satisfying the public’s perception about an applicant’s guilt – might interfere with the process. To date, the government has not taken steps to address this unease; the RPM investigation process is not transparent, and it isn’t clear whether the final decision is open to scrutiny via judicial review.

There is little doubt that the RPM is inadequate, and so the time has certainly come for a frank discussion about New 56

Zealand’s post-appeal pathway. But to blindly accept that a statutory body, akin to the Criminal Cases Review Commission (CCRC) for England, Wales, and Northern Ireland, will be the panacea is a mistake.

The CCRC is not without criticism. These criticisms must be considered, and robustly debated, to ensure that any new post-appeal pathway does not simply pay lip service to redressing miscarriages of justice.

The CCRC was originally established in 1997 as an independent public body with the statutory responsibility of investigating alleged miscarriages of justice in England, Wales, and Northern Ireland. Once the normal legal appeals process has been exhausted, the CCRC can investigate criminal cases and refer unsafe convictions back to the Court of Appeal. The CCRC has considered over 21,780 cases, and referred 634 cases (2.91%) back to the appeals court. Of these referred cases, about 66% succeeded.

At its inception, the CCRC was heralded as a world-first. In fact, it was the envy of the international community who investigate wrongful convictions. The CCRC was widely perceived to be a state-sponsored innocence project – an independent body, but with deeper pockets, that had wide-ranging powers to identify, investigate, and rectify miscarriages of justice.

But 20 years on, this perception has not been borne out. Critics claim that one significant barrier to the CCRC’s efficacy is the limited scope of its statutory-mandated referral process. [For example, C Ronald Huff and Michael Naughton “Wrongful Convictions Reforms in the United States and the United Kingdom: Taking Stock” in Emil W. Plywaczewski and Ewa M. GuzikMakaruk (eds) Current Problems of the Penal Law and Criminology (Wydawnictwo C. H. Beck, Warszawa, 2017) at 482]. The

CCRC refers cases back to

the appeals court to determine the final outcome, but only if there is a “real possibility that the conviction, verdict, finding or sentence would not be upheld were the reference to be made” (s 13(1)(a) Criminal Appeal Act 1995 (UK). In practice, this ‘real possibility’ test means that the CCRC investigate cases through the same lens as the Court of Appeal, focusing on whether an applicant’s conviction is ‘legally safe’, as opposed to ‘factually wrong’.

In any post-appeal pathway, cases will be referred back to the appellate courts for final determination (the alternative, a pardon, is rarely exercised). The form of, and need for, a statutory-mandated referral process in New Zealand should therefore be explicitly debated. At present, the CCRC cannot (and the RPM will not) refer cases where the applicant is asking that an error by the appellate court be rectified. Without some change to the referral process, we risk implementing a new post-appeal pathway that will differ to the RPM in name only.

Therefore, the first question New Zealand should consider is whether it would be appropriate to expand the scope of referrals to appellate errors.

Why should we expand the scope of the referral process to appellate errors? At present, the high legal threshold to overturn a conviction – typically, locating credible evidence not available at the time of trial – can prevent meritorious cases getting out of the starting blocks. In some cases, the appellate courts have already considered the relevant evidence, and dismissed it; often deferring to the importance of the jury as the fact finder. The RPM currently offers no protection to these alleged miscarriages of justice. If New Zealand was to simply adopt the CCRC’s ‘real possibility’

A CC E S S T O J U S T I C E

test, this would not change.

Without expanding the scope for referral, some miscarriages of justice will never be rectified. Therefore, a New Zealand CCRC needs to be able to afford some leeway to exceptional cases. That is, some cases should be referred irrespective of whether the appellate court had already considered the evidence. This proposed lower threshold would allow for increased scrutiny on appellate errors, but it would come with a hefty price tag. New Zealand is a small country, so we don’t have the same economies of scale observed with the CCRC. Post-appeal investigations of this type are expensive.

As a country, we will have to decide how much we are prepared to invest in order to have an effective post-appeal pathway.

While we urge caution in moving towards a CCRC, our critics might say, “it has to be better than what we have”. And that is almost certainly true.

Transplantation of the positive aspects of the CCRC – transparency in the post-appeal process, a high level of resourcing, and wide-ranging investigative powers – into a New Zealand CCRC would be an improvement on the RPM. But we cannot lose sight of the fact that a rudimentary model could have unintended negative consequences. We are particularly

concerned that the public will view a New Zealand CCRC as a wholesale solution; a perception the government is unlikely to dissuade. Comments such as “clearly, the existence of the UK commission has ensured that miscarriages of justice have been put right” (“Criminal Cases Review Commission could strengthen legal system” New Zealand Herald (26 October 2017) have already emerged in the media.

Why does it matter what the public believe? The answer is that members of the public have long been crucial in uncovering miscarriages of justice. There are countless examples of cases where an injustice only came to light due to the tireless efforts of individual campaigners.

If the public perceive that a New Zealand CCRC is the complete package, there is a real risk that these campaigners will fade into the background. Yet the success of a CCRC here will undoubtedly continue to require sophisticated input that is often beyond the skill-level of the applicant; that has certainly been true of the CCRC. Competent legal assistance will continue to be instrumental in directing investigators towards meritorious claims, particularly as a CCRC’s financial resources are unlikely to extend to extensive ‘fishing expeditions’ in every claim. It is important that misplaced

confidence in a CCRC does not cause these campaigners to disappear.

Finally, we cannot lose sight of the fact that a New Zealand CCRC can only serve as the ambulance at the bottom of the cliff. In that respect, we must continue to construct the fence. Across the globe, the factors that contribute to miscarriages of justice are remarkably similar. Many of these factors – eyewitness errors, flawed forensic science, and false confessions, for example – lend themselves to evidence-based reform around how evidence is collected, interpreted, and presented to fact-finders.

Such reform would go a considerable way towards reducing the workload of any CCRC. We commend the Government for acknowledging that New Zealand’s post-appeal pathways are inadequate. But simply replacing the RPM with a CCRC is not a comprehensive solution to miscarriages of justice. Now that the door is open, we urge the Government to pause, take stock, and ensure that any new post-appeal pathway we do adopt can actually achieve what it sets out to do.

Dr Bridget Irvine  ipnz@psy.otago. ac.nz is Research Co-ordinator for the Innocence Project New Zealand at the University of Otago

ACCESS TO JUSTICE

Judge Fred McElrea Restorative Justice online collection expands Napier City Libraries has launched an expanded online collection of the writings of retired District Court Judge Fred McElrea on restorative justice.

The Judge McElrea Restorative Justice Collection online site (at napierlibrary.co.nz, under Collections) was launched with over 80 articles, book chapters, select committee submissions, interviews and speech notes by Mr McElrea which date from 1992.

The purpose of the collection is to gather all his work in one place and make it as accessible, prominent, organised and reader and researcher-friendly as possible. The papers have been made available

for non-commercial use only and may be downloaded in PDF format.

Fred McElrea graduated LLM and MA with first class honours in Philosophy from Otago University and also obtained an LLM from London and a DipCrim from Cambridge University. After practising in civil litigation for 18 years in Auckland he was appointed to the District Court in 1988 until his retirement in 2013. He was also a Judge of the Youth Court (1990 to 2001) and an Alternate Judge of the Environment Court (2001 to 2013).

Over his career he was a prominent advocate of New Zealand’s youth justice system and also of restorative justice more broadly, in New Zealand and internationally.

57

PRO-BONO

PRO-BONO

Community mediation services pilot in South Auckland

BY CRAIG STEPHEN The word going round about its new mediation service ▸ Wi Pere Mita, was all that was needed for a South Auckland community law Manager Māori centre to receive cases from the courts to work on.

Legal Services The Community Legal Services South Trust launched its community mediation services pilot in October.

The trust is one of 24 community law centres around New Zealand, covering South Auckland and Franklin with eight lawyers and three administration staff. The pilot relies on pro bono work from registered mediators and lawyers.

Its Manager Māori Legal Services, Wi Pere Mita, says the scheme was launched with the aim of working out issues for those on low incomes.

“It’s an extension of our community legal services. We are not receiving any extra funding for it, but we feel there is a need for the service in our area, so the idea was we could try and meet the gap in our services by providing the mediation service. And given that we don’t have any extra funding for it, we are relying on pro bono mediators to assist us with delivering the service.”

Mr Mita says before the project got off the ground there were constructive meetings with police and court staff.

“We would encourage some of our clients to use the service if we feel it necessary but, we have also spoken to the local police, the local council and other stakeholders and they’re happy to provide referrals to the service. The police often deal with what they call civil matters and they don’t have anywhere to send those matters, so if there are disputes that aren’t of a criminal nature then they are more than happy to refer it through our service.

“The courts began referring matters here even before it was formally launched. If they feel that it could be resolved through an alternative process they will refer it to We’re not aware us as well. of any other “We’ve been quite lucky in that we’ve community law had really good responses so far, and the centres offering experience of the mediators who have community offered to work on a pro bono basis ranges mediation services. from commercial matters to grassroots Some of them do neighbourhood disputes to contract disoffer restorative putes and so on, so there’s a whole array justice services but of experience that has been offered to the we are not aware of service, which we’re really pleased about. any others offering And that means that we can extend the mediation services service to beyond what we were initially so we appear to be intending for it to cover.” the only one 58

The pilot appears to be a first in New Zealand.

“We’re not aware of any other community law centres offering community mediation services. Some of them do offer restorative justice services but we are not aware of any others offering mediation services so we appear to be the only one,” Mr Mita says.

“We were only envisaging receiving responses from mediators from within the Auckland region but we’ve actually had expressions from mediators in Wellington, as far north as Kerikeri, and as far west as New Plymouth. And they’re all willing to travel to Auckland to assist on a pro bono basis.”

The trust covers South Auckland and Franklin with outreach clinics in Otara, Papakura, Manurewa, Manukau and Pukekohe.

There are particular issues that it deals with given the socio-economic make-up of the area it covers.

“We deal with a lot of immigration issues, as South Auckland is heavily populated with Pacific Islanders. We also do a lot of employment and family Court work,” Mr Mita says.

“More than half of our service users are Pacific Islanders, the next largest group that come to us are Māori, and we have mix of everyone else.”

COMPLAINTS

COMPLAINTS

Lawyers Complaints Service Lawyers and Conveyancers need to co-operate, says LCRO It is incumbent on lawyers and conveyancers to carry out their duties to their clients in a “spirit of co-operation”.

This was stated by the Legal Complaints Review Officer (LCRO) in upholding the decision of the New Zealand Society of Conveyancers (NZSoC) Standards Committee to take no further action on a complaint by a lawyer about a conveyancer (LM Law v HR LCRO 212/2016 (22 September 2017).

“This review arises out of the ongoing (and unresolved) issue of the manner in which lawyers and conveyancers are to deal with each other,” the LCRO said.

The lawyer, LM, acted for the buyer of a residential property and the conveyancer, HR, acted for the seller. A disagreement arose about the manner of settlement.

Disagreement over settlement Paragraph 2.56 of the New Zealand Law Society’s Property Law Section (PLS) Settlement Guidelines states: “Where the conveyancing practitioner acts for the vendor and the lawyer acts for purchaser, the instruments should be released into the control of the purchaser before the funds are paid. The conveyancing practitioner is protected by the lawyer’s undertaking, which he or she could enforce.”

HR followed the opinion of the NZSoC that “Guideline 2.56 is unlawful” and declined to settle on the basis contemplated by the Guideline. Instead, she asked LM to remit the settlement monies to her against her undertaking to then release the e-dealing in the same manner as the Settlement Guidelines provide for when lawyers are acting for the parties.

LM refused to accept HR’s undertaking

and followed the directive in Guideline 2.55, which provides: “A lawyer should not seek, accept or need to rely on an undertaking from a non-lawyer. The paramount concern for the lawyer must be the protection of the interests of the client concerned. Undertakings given by lawyers can be and are enforced by a Court under its inherent jurisdiction arising from the fact that lawyers are officers of the Court. Conveyancing practitioners are not officers of the Court and their undertakings cannot be enforced by the Court under its inherent jurisdiction. An undertaking given by a non-lawyer may not be enforceable in law.”

HR then suggested that LM settle by appointing an agent near her offices to attend a personal settlement – by handing over a bank cheque and contemporaneous release of the e-dealing. LM considered that HR should bear the costs of appointing the agent.

Extensive communication took place between the parties, with each party referring to the advice and views of their respective professional bodies – the PLS and the NZSoC. The transaction was settled on terms agreed between LM and HR.

Complaint against conveyancer LM’s complaint to the NZSoC arose in relation to an email HR wrote to her client after settlement. The property seller forwarded the email to the buyer, who forwarded it to LM. LM raised a series of issues in his complaint, including: • HR’s email asserted that his firm had asked HR to breach her obligations to the seller and their bank, and that LM’s firm had made no such request; and • HR’s email alleged that LM’s firm had asked HR to do something “unprofessional and probably unlawful” and there was no basis to this allegation.

In making an allegation against LM’s firm, HR had breached rules 6 and 29

of the Lawyers and Conveyancers Act (Conveyancing Practitioners: Conduct and Client Care) Rules 2008, B said.

To suggest a lawyer was acting “unprofessionally” and “probably unlawfully” was a serious allegation, LM said.

Standards committee decision The standards committee considered the email was a confidential communication between HR and her client, containing a full and frank discussion of aspects of the legal services provided.

“As such,” the committee said, “the email communication complained of needs protection on a similar basis as the legal privilege afforded to communications between a lawyer and their client in similar circumstances.”

In its review decision, the LCRO noted that the definition of a “legal adviser” in the Evidence Act 2006 did not include conveyancing practitioners. “Applying the privilege (ss 53 to 67) provision of the Evidence Act, it was clear [HR’s] email was not a privileged communication.

The communication was intended solely for the benefit of HR’s client and did not “cross the line of impropriety” to such an extent that a disciplinary response was warranted, the standards committee found.

The committee concluded its decision by issuing a warning to conveyancers that they “should always exercise professional restraint in their communications with clients to ensure the good standing of the profession is maintained”.

LCRO’s decision The LCRO found that HR’s email did not say that LM or his firm was acting “unprofessionally” or “probably unlawfully”. What she said was that LM had asked her to act in a particular way. Whether she complied or not was a decision for her to make.

“In the email, [HR] then refers to the fact that [LM] is adopting a solution recommended by NZLS which, she says, is not accepted by NZSoC,” the LCRO noted.

The difference of opinion between the 59

COMPLAINTS

COMPLAINTS

NZLS PLS and the NZSoC “is of limited relevance to clients of either a conveyancing practitioner or lawyer.

“What is important is that clients are not disadvantaged, and both professionals have a duty to act in the client’s best interests.

“This must necessarily involve acting with some pragmatism and accommodation, and a recognition that the conveyancing profession was established when the Lawyers and Conveyancers Act came into force on 1 August 2008,” the LCRO said.

“It is somewhat disappointing that the parties to this complaint find themselves in this position, largely through the inability of their respective bodies to resolve those issues.

“Each client has been detrimentally affected by events and that is not in the interests of either party or their clients.”

The LCRO also ordered that an anonymised version of the decision be published to members of the NZLS and the NZSoC.

Comment from the Property Law Section of the New Zealand Law Society: “This is an ongoing issue and of concern to the NZLS Property Law Section. The Property Law Section is actively involved in reaching a constructive resolution of all issues between lawyers and licensed conveyancers.”

Censure and fine for sharing Landonline password [Names used in this article are fictitious] A lawyer has been censured and fined $8,000 by a lawyers standards committee for sharing his Landonline digital certificate password.

The Registrar-General of Land asked the Lawyers Complaints Service to investigate the lawyer, Seyton, after he shared the 60

password four times.

Seyton accepted that he breached the digital certificate terms and that this occurred four times, the committee said.

He accepted that this breached rule 11.4 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, and that it was unsatisfactory conduct.

Rule 11.4 states: “A lawyer must take all reasonable steps to prevent any person perpetrating a crime or fraud through the lawyer’s practice. This includes taking reasonable steps to ensure the security of and access to electronic systems and passwords.”

A footnote to the rule says: “The protection of passwords and systems will include the protection of digital certificates and associated passwords, and passwords, usernames, and personal identification numbers relating to electronic banking.”

“In attempted mitigation, [Seyton] advised that it was a trusted staff member who he allowed to use the certificate, a person [in whom] he had considerable confidence. He said at the time he did not think there was any risk involved and he did not realise the seriousness of his breach,” the committee said.

However, the committee said it considered his regret or apology was “hollow”, because despite having been reprimanded by the Registrar-General after each instance, he breached the rule four times.

The conduct was at the “higher end” of the scale of unsatisfactory conduct, the committee said.

As stated on Land Information New Zealand’s website: “The security of the Landonline system is vital. Licences and digital certificates are two of the measures we have in place to ensure the integrity of New Zealand’s land records.”

In setting the fine at $8,000, the committee took account of Seyton’s disciplinary history – two previous findings of unsatisfactory conduct.

As well as the censure and fine, Seyton was ordered to pay $1,000 costs. The committee also decided to give written notice of its determination to the RegistrarGeneral of Land and directed that the NZLS publish the facts of the matter.

Conduct failed competent, ethical and responsible behaviour test [Names used in this article are fictitious] A lawyer, Lennox, has been censured for breaching his fiduciary duties to a client both as her lawyer and as her attorney.

Lennox’s conduct was “derelict to such a degree” that it satisfied the test of what was expected of “competent, ethical and responsible practitioners,” the lawyers standards committee said. It found the lawyer had engaged in unsatisfactory conduct.

Lennox acted in various matters for a client, Mrs C, over a number of years, including assisting her in making her final will.

Mrs C’s will left nothing to her children and the bulk of her estate to her former son-in-law, Mr Y. Mrs B and Mrs A are Mrs C’s only children. On discovering they had received no benefit from their mother’s estate, Mrs B and Mrs A contested the will in the Family Court. They received what was left of their mother’s estate to divide between them.

The sisters then complained to the Law Society. The nub of their complaint was that Lennox had failed to take appropriate steps to safeguard Mrs C’s property and had caused significant losses to her and to her estate. Their complaint relied on Mrs C having lacked legal capacity to make decisions and properly instruct Lennox.

The committee considered that: • There was sufficient evidence to confirm a general deterioration in Mrs C’s overall health, and that should have been apparent to Lennox, • Lennox should have taken into account the general lack of consistency and prudence in Mrs C’s instructions and decision-making from then on, and should have been alert to the need to take additional steps to verify her capacity and secure her interests,

COMPLAINTS

• Lennox should have obtained medical evidence as to Mrs C’s capacity, before allowing her to commit herself to arrangements that did not adequately safeguard her property interests, • Lennox had failed to properly consult with Mrs B over his exercise of powers under the enduring power of attorney over property under which Mrs C appointed Lennox and Mrs B, • By making a payment of $40,000 to Mr Y without first obtaining security, Lennox was in breach of his fiduciary obligations to Mrs C, both as her lawyer and as her attorney, and • Relinquishing the protection a registered caveat afforded to Mrs C’s investment was not in her best interests.

As well as the censure, the committee ordered Lennox to pay the sisters $5,000 compensation, ordered that written notice of its decision be given to the RegistrarGeneral of Land, and ordered publication of its decision, including Lennox’s name.

Lennox applied for a review of the decision to the Legal Complaints Review Officer (LCRO) in respect of the publication and compensation orders. Lennox also applied for a review of the decision finding him guilty of unsatisfactory conduct and imposing a censure, but submitted the application outside the statutory timeframe. The LCRO therefore had no jurisdiction to review the unsatisfactory conduct and censure decision.

In LCRO 235/2014, the LCRO reversed three orders made by the standards committee.

“The disciplinary processes under the [Lawyers and Conveyancers] Act [2006] (LCA) are not well suited to the making of orders where, as here, there are potentially legitimate arguments around causation,” the LCRO said.

“Where there may be some doubt, as there is in the present case, the civil jurisdiction is better suited to testing conflicts of evidence.” The committee’s decision on compensation was therefore reversed.

The events happened before implementation of the LCA, and the Law Practitioners Act 1982 did not contain a provision that enabled notification to the Registrar-General of Land, the LCRO said.

Accordingly, no such order was available to the Committee.

On name publication, the LCRO said that the education functions of publication – for the public and the profession – could be met by the committee’s decision, or the LCRO decision, being published without Lennox being identified.

Failed to complete a retainer [Names used in this article are fictitious] A lawyer who failed to complete a retainer and comply with directions from a court has been censured and fined $2,000 by a lawyers standards committee.

This fine is the maximum provided in the Law Practitioners Act 1982, which covers penalties for conduct before 1 August 2008.

The lawyer, Gadshill, acted for a Mr D from January 2007 in relation to an interest in the estate of his former partner. Probate had been obtained and Mr D was named as the sole beneficiary.

At the time of her death, Mr D’s former partner was engaged to be married to another man, Mr E. In late 2006, Mr E applied to the Family Court for orders under The Family Protection Act 1955 and The Law Reform (Testamentary Promises) Act 1949.

The deceased’s mother and siblings challenged the will’s validity by applying in July 2007 to the High Court for probate to be recalled.

Mr D met with Gadshill in October 2007, and instructed the lawyer how he wished to respond in his statement of defence.

Having heard nothing further from Gadshill, Mr D was under the impression the statement had been filed.

The family was subsequently successful in having probate recalled by the High Court. The judge noted that Mr D had not filed a statement of defence and that neither he nor any counsel appeared. Mr D therefore no longer had standing as a beneficiary, the High Court determined.

Probate was granted to an earlier will that predated Mr D’s relationship with the

deceased. Subsequently, the proceedings brought by Mr E were resolved by consent.

Mr D said that he had tried to get information and updates from Gadshill on a number of occasions since the October 2007 meeting to no avail. He said he was upset that he was not made aware that probate for the will in which he was sole beneficiary had been recalled and the estate distributed to the family.

Gadshill’s failure to act on Mr D’s instructions to file a statement of defence, or his failure to alert him to the consequences of failing to take steps in the matter, was “serious”, the committee said.

“Likewise his failure to disclose to his client all relevant information he had received from the court and plaintiff ’s counsel and solicitor, which information would have enabled Mr [D] to make informed decisions about his involvement in the proceedings, is a serious breach of the duty owed to his client.”

Gadshill also had a duty to the court to respond, in one form or another, to the minute the court provided to him.

Gadshill’s conduct fell short of the standard of competence and diligence a member of the public was entitled to expect of a reasonably competent lawyer, and was unprofessional, the committee said.

Gadshill was in breach of his duty to act competently and in a timely manner consistent with the terms of his retainer and duty to take reasonable care.

The committee found unsatisfactory conduct on Gadshill’s part. As well as the censure and fine, Gadshill was ordered to pay $2,000 costs.

Failed to respond to client in timely manner [Names used in this article are fictitious] A lawyer who failed to respond to his client’s enquiries in a timely manner has been reprimanded and fined $1,000 by a lawyers standards committee.

The lawyer, Woodville, was acting on 61

COMPLAINTS

COMPLAINTS

immigration issues for a client, Mr J, and the client’s partner, Ms K. Woodville applied to Immigration New Zealand (INZ) for a visa under s 61 of the Immigration Act 2009 for Mr J and Ms K, who were in New Zealand unlawfully. This application was declined.

Woodville then applied for a second time, and this application was also declined.

Mr J claimed that Woodville informed him that another application would be made to both the Minister of Immigration and the Ombudsman. However, Woodville did not apply to the minister nor the Ombudsman, and instead lodged a complaint with INZ’s Deputy Secretary.

Mr J claimed he sent Woodville numerous requests for information and updates but never received any response.

Mr J subsequently met with Woodville, who informed him that INZ’s Deputy Secretary had declined to consider the complaint. On receiving a copy of the Deputy Secretary’s letter Mr J noticed it was dated approximately three months earlier.

Mr J subsequently wrote to Woodville requesting his file and a refund, both of which Woodville provided.

The committee said that: • Woodville failed to respond to enquiries from Mr J is a timely manner, breaching rule 3.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC); and • Woodville failed to inform Mr J of any material and unexpected delays in Mr J’s matter, breaching rule 3.3 of the RCCC. That constituted unsatisfactory conduct, the committee found.

“While [Woodville] maintained throughout his correspondence with the Lawyers Complaints Service that he had kept Mr [J] informed at all times, this does not necessary mean he responded to enquiries from Mr [J] in a timely manner as required under rule 3.2 of the RCCC,” the committee said.

“In fact, it was clear from the materials provided that numerous enquiries from Mr [J] went unanswered for significant periods of time or were not responded to at all.”

It was “unacceptable” for Woodville to be aware that INZ’s Deputy Secretary had declined to consider Mr J’s complaint and 62

not inform Mr J until approximately three months later.

“Mr [J] was left labouring under the false impression that he may have a chance of success when, in fact, he did not,” the committee said.

“Further, the extent of Woodville’s delay also resulted in time lost during which Mr [J] could have been exploring other options.”

As well as the reprimand and fine, Woodville was ordered to pay $950 costs.

Failure to pay costs results in censure [Names used in this article are fictitious] A lawyer has been censured for failing to pay a lawyers standards committee’s $1,500 costs order.

In December 2012, the standards committee made a determination on a complaint against the lawyer, Berkeley.

That determination found unsatisfactory conduct by Berkeley. The committee made a penalty determination in March 2013.

Both parties sought a review of the decisions. The complainant’s review was unsuccessful. On Berkeley’s application, the Legal Complaints Review Officer reversed the penalty determination and directed the committee to reconsider the penalty.

In May 2015, the committee decided to reprimand Berkeley for unsatisfactory conduct, and ordered Berkeley to reduce her fees and pay $1,500 costs.

Between July 2015 and February 2016 there was a series of correspondence between the Law Society and Berkeley relating to the fact that none of the $1,500 had been paid and that Berkeley had not made any indication about beginning to make repayments of the costs.

The matter was then referred to another standards committee, which began an own motion investigation.

Berkeley said that there was no timeframe in the costs decision and that she

had clearly told the New Zealand Law Society that she would pay the costs when she had been paid outstanding legal fees by the complainant.

Following that, Berkeley paid the sum outstanding costs in May 2016.

Berkeley’s continued failure for 13 months to pay the costs ordered against her, and her insistence she would only pay when the complainant paid her fees “is conduct which is in defiance of the determination made against her,” the committee said.

“The primary purpose of costs orders under the [Lawyers and Conveyancers] Act [2006] is to defray the costs of administering complaints and disciplinary provisions of the legislation, which otherwise fall on all lawyers.”

Costs ordered by a standards committee should be paid “within a reasonable time or an arrangement acceptable to NZLS made for payment.”

Berkeley’s failure to do either was unsatisfactory conduct, the committee found. As well as imposing the censure, the committee ordered Berkeley to pay $1,000 costs.

Lawyer’s conflict of interest [Names used in this article are fictitious] A lawyer has been censured for advising clients at the same time as lending them funds.

The lawyer’s conduct relating to the lending “constitutes unsatisfactory conduct,” the Legal Complaints Review Officer (LCRO) said.

The lawyer, Tressell, was a trustee of the H Family Trust. Mr and Mrs H were the other two trustees.

The H Family Trust was a shareholder of a building company and Mrs H was its sole director. The company was incorporated to operate as a building business.

The company bought a section on which it proposed to build a “spec house”, and Tressell arranged a series of advances through his firm’s nominee company,

COMPLAINTS

and two by Tressell’s own family trust.

The advances related to both the section purchase and to carry out building work.

Mrs H complained about a number of aspects of Tressell’s conduct. She said that he had a “conflict of interest” by lending his personal funds to the H Family Trust.

A lawyers standards committee expressed concerns about Tressell’s failure to ensure that Mr and Mrs H received independent advice and took note of the personal guarantees that they were required to provide.

The committee made a finding of unsatisfactory conduct, ordered Tressell to repay Mr and Mrs H $2,626 and pay $605 costs. Tressell then sought a review of the standards committee decision.

The LCRO said that the standards committee decision did not directly address the question of whether Tressell had a conflict of interest by lending personal funds to the H Family Trust. In doing so, the LCRO said that Tressell had become a lender to himself as a trustee of the H Family Trust.

“Whilst in New Zealand it is accepted that a lawyer may act for a lender and a borrower in the same transaction, that acceptance cannot have any application where the lawyer is the lender of the money to the client,” the LCRO said.

Rule 5.4.3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 is expressed as an “absolute prohibition” against continuing to act for a client in these circumstances, the LCRO said. “That prohibition extends to any transaction in which the lawyer has an interest. That would include acting in respect of any transaction which would have resulted in repayment of any advances made by Tressell or his trust and advising the company in respect of any matter which would have affected the company’s financial position.”

Tressell’s role as an independent adviser “became compromised” when he advanced funds through his firm’s nominee company to the building company, and obtained guarantees from Mr and Mrs H and the H Family Trust, secured over trust assets.

Mrs H was entitled to expect and receive objective advice from Tressell. That was impossible when he became a lender to

the company, the LCRO said.

As well as confirming the committee’s determination, the LCRO also modified it by making an additional finding of unsatisfactory conduct in respect of conduct which occurred prior to the Lawyers and Conveyancers Act 2006 and imposed a censure on Tressell.

“The Court of Appeal has described a censure of lawyers as a ‘rebuke’ to be taken seriously. That is what is called for in this situation,” the LCRO said.

“It is a censure on behalf of the legal profession that [Tressell], as a senior member of the profession, has failed to recognise he was compromising his fiduciary obligations to his clients, jointly and severally, by not remaining a disinterested and objective advisor.”

The LCRO also ordered Tressell to pay $1,200 costs.

Tardy lawyers censured over delayed application [Names used in this article are fictitious] Two lawyers have been censured for failing to act in a timely manner for the same client.

A lawyers standards committee determined that this failure by each of the lawyers was unsatisfactory conduct.

The client contacted the first lawyer, Coleville, in December 2014 about a debt of $16,200 owed to the Ministry of Social Development (MSD) relating to overpayment of accommodation supplement and temporary additional support.

The client asked Coleville to ascertain why the debt had been established and gain information from Work and Income to that effect.

MSD had advised the client on 24 November 2014 that she could apply for a review of its decision. The application had to be made within three months (by 24 February 2015).

In April 2015, the client contacted Coleville asking what steps she had taken with MSD. The client then contacted Coleville’s supervising lawyer, Oswald, because she was dissatisfied with the lack of response she had received from Coleville and with the lawyer’s communication.

Oswald took over management of the file, and the lawyers standards committee said that “it appears no further steps were undertaken by him until June 2016”.

In the meantime, in May 2015, Coleville contacted Work and Income and requested disclosure of the information regarding overpayment. MSD provided disclosure in late June 2015.

On 11 July 2016, MSD received an application for a review of its decision. In the application Oswald advised that the delay was not any fault of the client, but solely the responsibility of her legal advisors.

The application asked that, under the circumstances, consideration should be given to allowing the client’s application to proceed out of time.

MSD responded on 6 September 2016 declining the review and giving reasons for its decision.

In response to the allegations she had failed to inform the client of progress and failed to act in a timely manner, Coleville said she had not received the required information from the client, that she was very busy and it was not up to her to chase clients.

The committee noted that it was “clear” that Coleville did not take note of the timeframe for the review, and that the delay was of “significant length”.

Coleville “compounded this failure to act in a timely manner by advising [the client] that it was not up to her to chase her clients,” the committee said.

After Oswald took over the file from Coleville, he had two opportunities to file an application for review but failed to do so.

The committee said Oswald “has acknowledged that he failed to note the dates when documentation needed to be filed and has accepted that he was at fault”.

As well as censuring each lawyer, the committee also ordered each to pay $500 costs.

63

F O C U S O N · N E W P LY M O U T H

FOCUS ON

N E W P LY M O U T H

Focus on New Plymouth

BY KATE GEENTY Garry Anderson moved from Wellington to New Plymouth in 2004, giving up his role as a principal at Chapman Tripp in Wellington, where he was doing a lot of structured finance work.

He says the move to New Plymouth, where he is a partner at Auld Brewer Mazengarb & McEwen, has enabled him to continue to do quality corporate work, but in an environment where he could also enjoy more downtime.

“I’m not going to say the quality of all the work is exactly the same, but there is still good quality, challenging work, for good, interesting and reasonable clients. I was not coming here to fill in forms and do house conveyancing.”

He said while it wasn’t unusual to be in the office until midnight in Wellington, that’s not the case in New Plymouth. “Up here, that level of commitment is just not required anywhere near as often.

You’re still working hard, but it’s not at that level. You absolutely have a life outside of work.”

Lawyers need to tap into more than just their book smarts when operating outside the major cities, says Mr Anderson. “It’s the soft skills, the empathy, the emotional intelligence aspect, that are really important for people when they have a holistic, wholeof-life relationship with their clients. It’s not just transactional based, it’s people you will then see on the street, your kids might be friends at school, L AW Y E R S P R A C T I S I N G I N N E W P LY M O U T H they’re not just people who come in, you

BY G E N D E R A N D Y E A R O F A D M I S S I O N do a transaction and you never see them again. It’s an intimate environment.”

A changing city Linda Wilkinson, a director at Billings, moved to New Plymouth 34 years ago and says the city has changed hugely over the years. “When I first came here in the early 1980s, I think it was still quite parochial.

Now I think it’s a fabulous place to live.

There is just so much on offer.”

She says there is plenty of interesting work on offer. “We have a lot of dairy and oil and gas, and if one industry isn’t doing well then the other usually is.”

The entrepreneurial spirit of the region also leads to interesting work, Ms Wilkinson says. “It’s that whole number eight wire mentality. There are a lot of young businesses that are doing really exciting and innovative things.”

64

17

Women Men

18

16

7 0

1968– 1978

1979– 1989

1990– 2000

2001– 2011

2012– 2017

6

8 13

14

14

58 Total

55

Why aren’t more lawyers moving to town?

“I’m surprised there are not more people trying to escape from Auckland or Wellington,” says Mr Anderson.

He says concerns about not earning as much in a regional city as in a major city might hold some people back. “I think it’s about resetting what’s satisfying. You don’t need to earn as much in a smaller centre. If you reset those expectations then a whole lot of things open up for you, otherwise you do get trapped in the bigger cities, going ‘well I still need to earn all this money so I can buy a house that costs millions and is the size of a box’. It’s getting people to reset what they want and how to get it.”

When Mr Anderson made the move, he and his wife sat down and talked about how they wanted to be living in five years’ time. “That’s how we ended up here. We had a five-year plan and this was consistent

▴ The city of New Plymouth has a population of around 57,000, while the wider New Plymouth district has a population of about 74,000. ▸ Linda Wilkinson, a director at Billings.

with that. If the best thing you want in your five-year plan is to continue doing what you’re doing now, then that’s fine.

But if you’re wanting a different quality of life and in many respects, not all respects, still quality and challenging work that doesn’t involve you still being in the office at midnight every night of the week, this option can be good – and not just New Plymouth, there are many smaller cities in New Zealand where you can do this.”

Linda Wilkinson believes one of the reasons it’s hard to attract lawyers to town, is that they aren’t familiar with 65

F O C U S O N · N E W P LY M O U T H

House prices on the rise

▴ The mountain

Average house values in the New Plymouth district rose 6.8% to $429,953 in the year to October, according to data from Quotable Value.

New Plymouth. “Taranaki is more of a destination, you don’t pass through it on your way from Auckland to Wellington, you have to detour. I know that when people do come here, they say they had no idea it was this good. It’s about getting them to come here and have a really good look.”

Nicholsons Lawyers are currently looking to recruit, and partner Nik Marinovich says the firm “hasn’t been inundated with CVs”. While getting graduate lawyers is relatively easy, he says it gets more difficult when it comes to intermediate and senior lawyers.

However, he says there are plenty of good career opportunities for lawyers in New Plymouth. “There are a lot of opportunities for lawyers here, not just at our firm, but if you look around at other firms in the area you see there’s quite an aging population base in some of the partnerships.”

Mr Marinovich grew up in New 66

Mt Taranaki forms the backdrop of the city. Although it is most commonly known as Mt Taranaki, the mountain has two official names and is sometimes also referred to as Mt Egmont. It is part of the Egmont National Park, which provides a network of walking tracks ranging from 15 minute wanders to the three-day Pouakai Circuit.  James Ball bnd

It’s not just transactional based, it’s people you will then see on the street, your kids might be friends at school, they’re not just people who come in, you do a transaction and you never see them again.

It’s an intimate environment.

Plymouth and believes locals moving back home after studying or working elsewhere have something of an advantage when it comes to establishing themselves.

“People do like the fact you’re from here. If your family is well known it helps. I’ve found later in my career that being from here has helped quite a lot. You find a lot of people you went to school with, or they knew your family, end up living here as well.”

World famous With Mt Taranaki, Egmont National Park, the GovettBrewster Art Gallery and the Len Lye Centre, New Plymouth and the wider Taranaki region have plenty of attractions for visitors. So much so, that the travel bible Lonely Planet ranked Taranaki second in a list of the world’s top regions to visit in 2017. “There is lots happening all the time. You’ve got that combination of a world-class arts scene, a great café scene, an exciting and diverse festival programme and then you’ve got a tremendous outdoor feast – the Pouakai Crossing, which is the route around the cone of Mt Taranaki, you’ve got the Surf Highway, lovely beaches. I think we are truly blessed,” says Linda Wilkinson.

CYBERSECURITY · TECHNOLOGY

TECHNOLOGY

CYBERSECURITY

What to do if you’re hacked

BY DAMIAN FUNNELL Turn It Off Unfortunately, when it comes to protecting us from ourselves, technology often lags behind the bad guys.

We finally seem to have defeated spam and email viruses, but it took long enough. I still receive hundreds of spam messages a day, but my spam filter is good enough to catch almost all of them with very few false positives. I very rarely have to tell clients that ‘your message got stuck in my spam filter’ these days, which is good, as I don’t think anyone has ever believed it, even when it was true.

As technology has progressed, however, so too have the bad guys and now we face a much more serious and complex set of security challenges.

Security technology continues to develop too slowly to keep up with the bad guys and the bad guys never sleep.

Cyber criminals have become a lot smarter at combining technology (viruses, ransomware, etc) and human engineering with staggering effect. The cost of cybercrime is difficult to quantify, as much of it goes unreported/undetected, but the global cost to business is clearly in the hundreds of billions of dollars per annum.

Forbes recently estimated that the costs of cybercrime quadruple every 4 years.

Despite this, less than half of businesses, large and small, have adequate security policies and protections in place. Almost all of the high-profile hacks that have made the headlines in recent years (the Democratic National Convention, Mossack Fonesca, Appleby and numerous others) were the result of poor security controls.

In issues 904 and 905 of LawTalk we looked at how you can improve your firms’ security posture to better protect yourself from the bad guys.

Today we look at what to do if you’ve been ‘hacked’.

Prevention is, of course, better than the cure, so my best advice is to not get hacked in the first place. If you take sufficient care then it’s very unlikely that you’ll become a victim.

That said, here’s what to do if you realised you’ve been compromised.

As soon as you notice something suspicious, turn your device off. It might be too late and the damage may already be done, but turning off your device could minimise the harm.

Get Professional Help I can’t emphasise the importance of this enough. An experienced professional can help you determine how widespread the infiltration is, what the effects have been and, most important, how to minimise the damage. Talk to your IT professional now about their security credentials and capabilities and make sure you have a clearly defined process in place for how you will contact them in the event of a security emergency.

Change Your Passwords Even if you don’t think your passwords have been compromised.

Check out my earlier LawTalk columns on how to make passwords secure.

Clean Infected Systems We will usually use two different, trusted security products to do a deep scan and clean of infected systems before we’ll consider them to be ‘clean’. This is something you could do yourself, but engage the services of a pro if possible.

Tell Others If you have put others at risk then it should be pretty easy to figure this out. The most common way for malicious software to propagate is via email, in which case you’ll find offending messages in your sent email.

My advice is to only contact

those who you know have been put at risk, or who are likely to have been put at risk. You could send an email to your entire address list, but this is rarely necessary and only serves to compound your embarrassment.

If you do send out an email, for goodness sakes remember to ‘blind copy’ everyone on the message.

I recently watched in horror as someone emailed his entire contacts list to tell them he had been hacked, including everyone on the ‘To’ list of the email. This resulted in a maelstrom of increasingly angry replies as recipients hit ‘Reply All’ – first to ask and joke about the attack, then to ask to be removed from the email ‘list’, then to complain about the 150 odd messages that we all received before the replies finally stopped.

I did receive spam from this poor chap when his email was hacked, but it went straight to my SPAM folder, as it would have for most recipients. If he hadn’t emailed me about it I would have never known.

Plug the Holes If, like more than half of businesses, it takes getting hacked to teach you the importance of sound security controls then at very least do yourself the favour of learning the lesson. I have seen businesses fail and grown adults cry as a result of security hacks and data loss. It’s terrible and almost always preventable.

Damian Funnell  damian. funnell@choicetechnology.co.nz is a technologist and founder of Choice Technology, an IT serv ices company, and  panaceahq.com, a cloud software company.

67

TECHNOLOGY · RECENT DEVELOPMENTS

TECHNOLOGY

RECENT DEVELOPMENTS

Wagbot uses chatbot technology

BY ANGHARAD O’FLYNN In May 2017 Community Law Wellington and Hutt Valley, along with tech developer Matthew Bartlett, launched Wagbot: a natural language interface, or ‘chatbot’, designed to provide information on several school-related legal and societal subjects.

Mr Bartlett began developing Wagbot over the 2016 Christmas break, but had worked with Community Law Wellington and Hutt Valley for five years on publishing-related jobs before working on the Wagbot technology.

“At Loomio [a company building an open source group decision-making platform] I explored natural language interfaces to make the software more accessible,” he says.

“I built a barely-working, but promising, prototype and pitched it to Community Law. They agreed to fund it for a few months to find out if this was an area worth seriously investing in.”

Community Law saw the benefits of the system and it has been running ever since.

Interface and delivery system development Wagbot’s delivery system is through Facebook Messenger, an instant messaging service, and a favourite of chatbot designers.

Facebook’s network has an extensive reach with more than 1.2 billion users; as of April 2017, the Pew Research Centre noted that Messenger accounts for 79% of the world’s internet users.

“The latest stats I have for New Zealand say that around 85% of 68

students are on Facebook daily, and about 80% of mothers of schoolchildren do the same,” says Mr Bartlett.

These statistics come from a 2015 survey conducted by First Digital New Zealand; a media research analytics and strategy company.

Mr Bartlett says while there are security issues about the use of social media, it has wide appeal.

“There are platforms that do a much better job of protecting user privacy, but none have the reach of Facebook.”

Accessibility and a user-friendly platform is key so that Wagbot is easily navigated by those who wanting to use it.

The age group most acquainted with social media are digital natives – those born after the introduction of digital technology. Most of Wagbot’s users fall into this category and are aged between 13 and 17.

Facebook Messenger is the most widely-used platform by high school students, and is secure enough for chatbots to use as their delivery system.

Wagbot’s knowledge base was designed around Community Law’s Problems at School book.

“The content is relevant to a demographic who are likely to be open to this new form of delivery… making it more straightforward to convert into chatbottable content,” says Mr Bartlett.

“It occurred to me that some of Community Law’s amazing plain English legal resources would be ideal ‘raw material’ for a chatbot interface.”

Wagbot can provide answers and information on a variety of subjects;

the most common topics people want help with are about bullying, wagging, and sex and relationships.

Communication and learning Wagbot learns how to communicate through a natural language processing (NLP) model.

This model starts with a basic understanding of the English language. Over time it is gradually trained to match the thousands of different ways people ask questions with the answers it has in its knowledge base.

Staff at Community Law can review the responses Wagbot is giving and give it suggestions for better matching questions to answers. Where there are gaps in its knowledge, staff can research and write new responses, so that the next time Wagbot can be more useful.

That said, the system is still in its infancy and doesn’t have all the answers.

“When Wagbot gets beyond its areas of usefulness, the bot will suggest other subject relevant services providing contact details to helpful organisations,” says Matthew.

Wagbot has had a lot of usage since its release in May and its development team has received plenty of feedback.

“We have had positive messages coming through

RECENT DEVELOPMENTS · TECHNOLOGY

TECHNOLOGY

RECENT DEVELOPMENTS

MyAdvice.

Legal

BY NICK BUTCHER about Wagbot on the associated phone centre, Student Right Line, and see a steady stream of teens recommending it to each other on Facebook.”

More in the works The Wagbot team are currently in discussions with a potential funder for producing chatbot interfaces to other Community Law publications.

“Most likely, the next bot we release will be based on the resource Lag Law: Your rights inside prison and on release,” says Mr Bartlett.

Another, somewhat complex, possibility is a chatbot capable of providing answers found in The Community Law Manual. “At this stage it looks like the most promising approach will be to build bots covering particular subject areas (eg, employment, immigration, renting).”

If this chatbot technology can be developed further, to the scale of the 900-page Community Law Manual, then it may become one of the earliest versions of a robot lawyer in New Zealand.

This kind of technology can provide many benefits to caregivers seeking answers to school-related questions, or students who might need guidance on a problem but don’t feel comfortable talking to an adult.

Recent Developments aims to provide information on new products and services which are likely to be of interest to lawyers. While the New Zealand Law Society only profiles products which it believes have proven benefits, it does not endorse these.

“It’s like a legal Facebook page,” – Mai Chen How legal services are being delivered has been going through an online revolution for some time and a new website where people seeking legal advice can target a lawyer with the specific legal skills is the latest in the evolution.

My A d v i c e . L e g a l was created by Mai Chen of Chen Palmer Partners.

“We have lawyers in New Zealand who have a lot of expertise and specialities but sometimes it’s not known among the general public.

We need to have a better way for people to access this experience and knowledge,” she says.

MyAdvice.Legal works off the philosophy ‘Best Lawyer, Best Practice, and Best Price’.

Ms Chen says there are ten customer promises that lawyers must agree on, to be able to register on the site, and so offer their expertise.

“That includes the principle of transparency and that a lawyer will respond within 24 hours and provide the first hour of legal advice for free. They have to agree to do one piece of pro-bono work a year,” she says.

Ms Chen says the client has access to an encrypted portal to keep all documentation secure and will have access to video conferencing.

“They have to provide the client

with a weekly report and if the client is living rurally access with the lawyer can be maintained online through Skype.”

MyAdvice.Legal was launched mid-October and Ms Chen says interest has been high.

“We were getting 40 to 60 visitors an hour,” she says.

Once a lawyer affiliated with the site gets a confirmed instruction from a client, the subscription cost is $199 a month.

“We do take a 2.5% administration fee from the agreed budget between the two parties.”

Lawyers will be able to promote their own specialised experience via their online profiles at MyAdvice.Legal by contributing blogs and articles.

“I think value billing will become more prevalent and artificial intelligence will be essential to keep the price of advice more consistent with client expectations,” says Mai Chen.

69

L E G A L I N F O R M AT I O N

LEGAL INFORMATION

New legal books received

BY GEOFF ADLAM

Criminal Justice: A New Zealand Introduction Edited by Jarrod Gilbert and Greg Newbold The 14 chapters and 18 contributors consider the key ideas, principles and frameworks defining New Zealand’s criminal justice system.

The editors say their objective is a book which not only serves as a key resource for students, but which is also of value to practitioners in the criminal justice field. The first five chapters investigate the origins and history of the system, coving crime rates, policing and corrections. Three chapters on current practice cover evidence, trial and sentencing. The last six chapters look at key issues – psychology, Māori, Youth, injustice, news media, and gangs and underworld justice.

Auckland University Press, 978-1-869408-76-3, December 2017, 342 pages, paperback, $59.99 (GST included, postage not included).

Litigation Skills: A Practical Guide to Judge-alone Trials

By Janine Bonifant and Anne Toohey Wellington barrister Janine Bonifant has over 20 years’ experience in criminal litigation, including as a senior Crown Prosecutor and for the PDS. Anne Toohey is a barrister at Canterbury Chambers and has prosecuted for the Crown. Their handbook is aimed at junior and intermediate defence lawyers and adopts a start-to-finish approach on preparing for and conducting a judge-alone trial. It includes flowcharts, check lists, example documents and letters, along with appendices of the relevant legislation.

LexisNexis NZ Ltd, 978-0-947514-39-6, November 2017, paperback and e-book, 254 pages, $85 (GST included, postage not included).

70

International Indigenous Rights in Aotearoa New Zealand Edited by Andrew Erueti After voting against it in 2007, New Zealand expressed its support for the UN Declaration on the Rights of Indigenous Peoples in 2010.

Andrew Eruiti, a senior lecturer at the University of Auckland Faculty of Law, edits a collection of essays which focus on placing the Declaration in a New Zealand context and how it impacts on what he describes as “a relatively robust set of rights aimed at promoting and respecting the rights of Māori”. Falling into three parts, the book considers the relationship between indigenous rights and human rights, the implications of the Declaration on specific areas of New Zealand indigenous rights, and New Zealand’s compliance with the Declaration. The 10 essays had their genesis in a Law Foundation symposium in 2014.

Victoria University Press, 978-1-776560-48-6, September 2017, 232 pages, paperback, $40 (GST included, postage not included).

Williams and Kawharu on Arbitration, 2nd Edition

By Sir David Williams and Amokura Kawharu The first edition of this definitive treatise and JF Northey Prize winner was published in 2011. In a foreword, Court of Appeal President Stephen Kós places it among the great New Zealand legal texts, with its “vivid scholarship … the direct product of profound knowledge and experience of the daily practice of arbitration not only in New Zealand but in other jurisdictions”. The four-part structure sets the arbitration system in context, provides comprehensive coverage of all aspects of our Arbitration Act 1996, followed by international commercial arbitration and ending with investment treaty arbitration. Appendices include legislation, UNCITRAL and ICC Rules and other documents and guidance. In addition to the two principal authors, the contributing authors are Anna Kirk, Daniel Kalderimis and Wendy Miles QC. LexisNexis NZ Ltd, 978-1-927313-91-6, August 2017, paperback and e-book, 1154 pages, $200 (GST included, postage not included).

This information is compiled from books which publishers have sent to LawTalk.

L E G A L I N F O R M AT I O N

LEGAL INFORMATION

VOLUME 1 2017

Te Aho Kawe Kaupapa Ture a ngā Wāhine

New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine

New Zealand Women’s Law Journal

NEW ZEALAND WOMEN’S LAW JOURNAL TE AHO KAWE KAUPAPA TURE A NGĀ WĀHINE VOLUME I

2017

Rt Hon Chief Justice Dame Sian Elias Hon Justice Susan Glazebrook Hon Deputy Chief Judge Caren Fox Lady Deborah Chambers QC Kathryn Beck Louise Grey

Joy Guo Nicole Ashby Taylor Mitchell Anjori Mitra Jackie Edmond Erica Burke

Tunisia Napia Bridgette Toy-Cronin Helena Kaho Savannah Post Caitlin Hollings Rosa Polaschek

BY ANGHARAD O’FLYNN The first edition of the New Zealand Women’s Law Journal – Te Aho Kawe Kaupapa Ture a ngā Wāhine was launched on 27 November 2017.

The brainchild of Ana Lenard, an associate at Auckland law firm Gilbert Walker, and Allanah Colley, a judges’ clerk at the Wellington High Court, the Women’s Law Journal is the first gender-focused legal publication in New Zealand. It will explore gender issues in the law and adds to a number of initiatives supporting women lawyers.

The co-editors had the idea for the journal in August 2016 during their final year at Auckland University’s law school.

“I started thinking about what we could do in our free time to use the skills that we would have as law graduates to contribute to the legal profession and society at large,” says Ana. “We came up with the idea of starting a legal journal because it is a good vehicle for advocacy through law on a particular issue.”

The pair saw the need for an outlet where gender issues could be discussed, and ideas published, which might have an impact on the creation and interpretation of law, and women’s experiences in the profession.

The pair saw “If you are somebody who is the need for writing about gender issues in the an outlet law, it’s not necessarily the most where gender appealing topic,” says Ana. issues could be “We thought if we provide a space discussed, and for it, then it will give people who ideas published, write on these topics a forum in which might have which they can get published. It will an impact on also, hopefully, help encourage more the creation and people to think about writing about interpretation of these topics because they have comlaw, and women’s fort knowing that there is a place experiences in that will value the subject-matter the profession.

of their work.”

The Journal has 18 editors, three business staff, seven Advisory Board members, and 14 Academic Review Board members, plus several article peer reviewers.

“Blending and mixing is a good thing to help women progress in their careers and try and deal with some of that ‘glass ceiling’ type stuff,” says Ana. Those involved include judges, Queen’s Counsel, practitioners and academics – there is also a Law Commissioner and a Defence Force Lieutenant-Colonel.

The Journal has gathered plenty of support and has several sponsors: LexisNexis, ADLS Incorporated, Russell McVeagh, Buddle Findlay, the University of Auckland Faculty of Law, Antonia Fisher QC and Alex McDonald.

“It has been spectacular and humbling to see how many people care about the Journal’s goals. We are always open to hearing from people who are interested in being involved and supporting our work,” says Ana. The first publication features a variety of subjects including: women’s role in tikanga; whether a female partner quota should be introduced into firms; what the best paid parental scheme for New Zealand would be; Pacific people and non-violence programmes; a call for abortion law reform; and notes about recent cases and legislation of interest.

There will also be international articles focusing on the inclusion of women in the negotiation and drafting of the Paris Agreement, and international law’s changing attitudes towards abortion.

A speech by the Chief Justice is included, as is a ‘state of the nation’ piece looking at women in the law by Deputy Chief Judge Caren Fox, Lady Deborah Chambers QC and New Zealand Law Society President Kathryn Beck.

The New Zealand Women’s Law Journal is available for sale in hard copy and free online at  www. womenslawjournal.co.nz. Submissions for the 2018 edition are due on 1 April 2018.

71

L E G A L I N F O R M AT I O N

LEGAL INFORMATION

From tempting idea to weighty tome Feminist Judgments of Aotearoa New Zealand – Te Rino: A Two-Stranded Rope (Hart Publishing, Oxford and Portland, 2017) $173.

REVIEWED BY CAROLINE HICKMAN F e m i n i st J u d gm e n t s A ot e a roa is a collection of key New Zealand judgments that have been re-written in a way that a feminist judge might write them. It is a weighty tome that has something of value to offer any reader curious about how a set of ostensibly neutral legal principles can be applied in a way which better responds to the experiences of women, and Māori women. It challenges the concept of judicial neutrality and begins with the premise that no matter how hard judges try to be fair and impartial, unconscious bias plays an inevitable part in judicial decision making. In other words, “[i]t matters who the judge is” (Baroness Hale). A reviewer of the Australian counterpart of this book points out that the value of this kind of project is not just to feminists or women, but to “readers to whom the ‘F word’ in the book’s title might not ordinarily appeal” (Heather Roberts and Laura Sweeney).

The book comprises 25 judgments, 19 re-written from a feminist perspective and six re-written from a ‘mana wahine’ perspective. The 57 contributors include leading academics as well as other legally-trained authors who provide diversity of gender, sexuality, religion, politics, race and cultural identity and includes a retired judge who has bravely re-written one of his own decisions. The impressive line-up of influential legal contributors adds to the gravitas and mana of the project.

The resulting book takes a proud and unique place in the emerging movement of feminist judgment writing projects as critical legal theory. It follows other books of re-written feminist judgments which first came out in England and Wales (Rosemary Hunter, Clare McGlynn, and Erika Rackley), 72

then Australia (Heather Douglas, Francesca Bartlett, Trish Luker and Rosemary Hunter), the United States (Kathryn M Stanchi, Linda L Berger and Bridget J Crawford), and finally Northern Ireland and Ireland (M Enright, J McCandless and A O’Donoghue).

The goal of the book is to provide readers with new perspectives in the reading of New Zealand law by creating judgments that could legitimately sit alongside the original judgments as realistic and possible alternatives. It aims to transform theory into practice and has a didactic but also a practical purpose. As with judicial law-making, process can be as important as outcome and “the way in which a judge tells a story of the case also plays a potentially therapeutic role for the parties even if the outcome is disappointing...” (page 35). Judgments which attempt to understand and re-situate a point of view are not just potentially therapeutic but can be transformative to an aggrieved and disempowered party.

All the judgments are reimagined from the original judgments selected as significant within their own area of law. The 12 subject areas span traditional areas of feminist critique such as criminal, family and employment law, but also include environmental law and commercial relationships, areas which might not normally be regarded as amenable to feminist critique.

These re-imagined judgments are not fantasies written within the context of a female utopia. The judgments are grounded in existing legal doctrine. The author’s brief was to re-write an actual judgment constrained by the statutory basis, common law precedents and social and political conventions that existed at the time the judgment was originally written. Each judgment is prefaced with

a separate commentary from another author which situates the judgment within its legal and social framework and discusses the original judgment.

While Feminist Judgments Aotearoa is about gender and the difference gender makes, its message is demonstrably wider.

The additional and unexpected value is understanding how applying feminist legal reasoning and conceptualising experiences of ‘otherness’ provides a template for inclusiveness of other diverse groups within our existing legal framework.

This is probably not the book to browse at the beach while keeping half an eye on the kids in the water. It is a dense and concentrated read spanning 576 pages.

However, for practitioners, the exercise in reading feminist judgments is an important opportunity to learn about how alternative experiences can be used to challenge existing legal doctrines in a legitimate way.

The book does not need to be read in order.

Helpfully, the preface describes how to read the book, suggesting that the three introductory chapters provide useful context, illustration and illumination (page ix).

In Chapter 1 the editors recreate the dialogue telling the story of the project’s creation from inception to birth. Chapter 2 discusses law in Aotearoa New Zealand, describing the “veneer” of monolegalism of the law imported from England; the constitutional framework including the Treaty of Waitangi; the New Zealand courts systems as well as some of the Māori values underpinning legal thinking and practice.

Chapter 3 provides a critical introduction to the feminist and ‘mana wahine’ judgments as well as a description and chronology of the global feminist judgment movement. After the introductory chapters, each re-written

CLASSIFIEDS · LEGAL JOBS

judgment with commentary presents a stand-alone critical reflection.

One particular challenge was “how to give voice to Māori women in a manner consistent with Te Tiriti o Waitangi (the Treaty of Waitangi)” (page 28). Intersectionality is an attempt to develop a specifically ‘mana wahine’ framework which can be applied to judgment writing. The mana wahine framework springs from kaupapa Māori and has five strands: claiming visible space for Māori women, and Māori generally; identifying rights and obligations that uphold the mana of Māori women and their families; placing Māori concerns and Māori people at the centre (not the margins) of the factual and legal analysis; applying legal tests so as to include Māori everyday reality (rather than an idealised or abstract notion of Māori life); paying respect to Māori values and principles.

By contrast, feminist legal theory uses techniques such as asking ‘the woman question’, contextualising and particularising reasoning, and recognising and using women’s narratives to create a legal truth so that the judicial reasoning is at least as important as the outcome. The tension between the way judges are taught to write judgments with an emphasis on clear issue-identification, minimal factual description and limited reasoning does not sit well with feminist methodology (page 14). This methodology often begins with women’s experiences and stories and may involve providing factual details that may have been marginalised or overlooked to provide contextualising information and these facts are regarded as being as important as the law. Unsurprisingly, there are recurrent threads throughout the judgments such as recognising and recounting women’s narratives, challenging gender bias and applying feminist theory, the private versus public spheres, the anti-subordination of women and the ethic of care.

Feminist Judgments Aotearoa followed a collaborative methodology. Rather than each writer being given a task of writing a commentary or judgment in isolation and then forwarding it to the editors for comment, the authors came together for six workshops. These involved bringing in experts on judgment writing and collaboratively ‘workshopping’ draft judgments. Rosemary Hunter, now considered a worldwide expert on feminist judging (having edited two of the previous volumes of feminist judgments and involved in some capacity in all of them), attended two of the workshops as co-editor and was considered an invaluable asset to the Law Foundation-funded project.

The concept of feminist judgments need not be regarded by the hegemony as threatening, in fact these judgments are deeply liberating for all. Like other feminist judgment projects worldwide, and as noted in the preface to the US Feminist Judgments, this offering demonstrates “that feminist reasoning increases judicial capacity for justice, not only for women but for many other oppressed groups.” (Preface, xxix) Legal judgments are inevitably influenced by personal perspective, no matter how hard judges strive for impartiality (page vii). While judges in New Zealand now periodically receive training about unconscious bias, this professional development is not compulsory. Feminist Judgments Aotearoa is a fascinating, sometimes confronting, but ultimately extremely rewarding read which challenges us to see other legitimate possibilities in the law.

Caroline Hickman  caroline@hickmanlaw.co.nz is a Napierbased barrister and mediator. She specialises in family, relationship property and youth law.

Experienced legal secretary available to undertake all your audio transcription and copy-typing work.

Fast turnaround. Weekend and holiday service also provided.

Hourly rate $35. First 30 audio minutes transcribed at no cost to enable you to trial my work.

Contact Amanda Cairns on 027 634 2517 or 04 526 8107 email: cairnstranscription@hotmail.com Referees available if required.

TAURANGA LAW PRACTICE FOR SALE A well-established Legal Practice is for sale in sunny Tauranga. This is a great opportunity for any Lawyer seeking to relocate to Tauranga or a local Lawyer seeking to purchase his or her own Practice.

A broad based business with the major areas being: » Commercial & residential conveyancing » Relationship property and Family Law » Trusts, Wills and Estates.

Please email expressions of interest to info.lawsale@gmail.com All enquiries treated in the strictest confidence.

Family Lawyer on the North Shore Want a better work-life balance?

We are looking for a driven and enthusiastic family lawyer to work within our positive and supportive team.

You will need to have been admitted to the bar and completed both Family Law papers during your LLB. You will also need excellent communication skills, an eye for detail, an ability to empathise and be passionate about helping others.

All applications will be treated in confidence.

To apply please send a cover letter and CV to: PO Box 301385, Albany 0752, Auckland. Applications close 22/12/17.

73

WILL NOTICES · CLASSIFIEDS

Will notices Adams, William Francis Andreassend, Megan Marion nee Johnston Berry, Bruce Winston Coker, Mary Agnes Dwyer, Sean Gerard Gray, Charles John James Dunbar Lange, Audrey Carol Liant, Yves Marjoribanks, Ian Lloyd (“Lloyd”) Marlow, Timothy John Mercer, Douglas Cyril Murray, Frank John Rarere, Mere Te Iwingara Isabelle Smith, Meriana Waitangi Taukiri, Shane Jason Walker, Judith Ellen Wheeler, Paul Williams, Ivy

Adams, William Francis Would any lawyer holding a will for the above-named, late of 31 Alexander Street, Kingsland, Auckland, Electrical Engineer, born on 14 April 1960, who died on 24 September 2017 please contact Melanie Forsman, Metro Law:  melanie@metrolaw.co.nz  09 929 0812  PO Box 68882, Wellesley St, Auckland 1141

Andreassend, Megan Marion nee Johnston Would any lawyer holding a will for the above-named, late of Oamaru, born in Christchurch on 4 May 1980, who died on 23 October 2017, please contact Nikki Canham, Dean & Associates, Solicitors:  nikkic@deanlaw.co.nz  03 434 5128  PO Box 242, Oamaru 9444 - DX WA32523,

Berry, Bruce Winston Would any lawyer holding a will for the abovenamed, late of Westport , retired teacher, who died in November 2017, please contact Vernon Woodhams, Vosper Law:  vernon@vosperlaw.co.nz  07 827 6140  PO Box 489, Cambridge 3450 DX GA27509

Coker, Mary Agnes Would any lawyer holding a will for the above-named, late of Auckland, Retired, born on 22 December 1943, who died on 25 October 2017, please contact Sharleen Te Runa, Public Trust:  Sharleen.TeRuna@PublicTrust.co.nz  09 985 6850  6 Alderman Drive, Henderson, Auckland

74

D ecember 2 0 1 7 · L AW TA L K 9 1 3

Dwyer, Sean Gerard

Murray, Frank John

Would any lawyer holding a will for the abovenamed, late of Auckland, New Zealand, who died on 3 November 2017 aged 56 years, please contact Aleisha Collett, Franklin Law:

Would any lawyer holding a will for the above-named, formerly of 33 Oregon Drive, Murupara, beneficiary, but latterly of Redwood Carehome, Te Ngae, Rotorua, who died in Rotorua on 15 September 2017 aged 53 years, please contact Don Howden, Jones Howden, Solicitors:

 AleishaC@franklinlaw.co.nz  09 237 0066  PO Box 43, Pukekohe 2340 DX EP77020

Gray, Charles John James Dunbar Would any lawyer holding a will for the above-named, late of 95D Arthur Street, Blenheim, Gardener, born on 9 August 1951, who died on 19 September 2017, please contact Vicky Frater, Lundons Law  vicky@lundonslaw.com  03 578 9988  PO Box 268, Blenheim 7240

Lange, Audrey Carol Would any lawyer holding a will for the above-named, late of Glendene in Auckland, Retired Accountant, who died on 11 July 2017, please contact Siobhan O’Sullivan, Kemps Weir Lawyers:  siobhan@kempsweir.co.nz  09 525 4593  PO Box 62566, Greenlane, Auckland 1546

Liant, Yves Would any lawyer holding a will for the above-named, late of Papeete, Tahiti, French Polynesia, Retired, who died on 28 May 2014, please contact Catherine Sumpter, Carter Atmore Law:  Csumpter@calaw.co.nz  09 921 5016  PO Box 68656, Wellesley St, Auckland 1041 DX CX10189, Auckland

Marjoribanks, Ian Lloyd (“Lloyd”) Would any lawyer holding a will for the above-named, late of Tokoroa, who died on 2 November 2017 in Tokoroa, please contact Jennie Burney, Le Pine & Co:  jburney@lepine.co.nz  07 883 8096  PO Box 62, Putarauru 3443

Marlow, Timothy John Would any lawyer holding a will for the above-named, late of Auckland, New Zealand, Mechanic, who died on 21 October 2017 aged 63 years, please contact Jo Lovett, Franklin Law:  jol@franklinlaw.co.nz  09 237 0066  PO Box 43, Pukekohe 2340 DX EP77020

Mercer, Douglas Cyril Would any lawyer holding a Will for the abovenamed, late of 26 Gordon Road, Mount Maunganui, born on 25 August 1919, who died on 12 May 2012, please contact Lyn Hooper, Mackenzie Elvin:  lyn@mackenzie-elvin.com  07 578 5033  PO Box 14016, Tauranga 3143

 don.howden@joneshowden.co.nz  07 888 7072  PO Box 1, Matamata 3440 - DX GA27017

Rarere, Mere Te Iwingara Isabelle Would any lawyer holding a will for the above-named, aka nee Mere Te Iwi Ngaro, born on 9 January 1958, who died at Lower Hutt on 29 July 2017, please contact Simone Seddon, Collins May Law:  simone@collinsmay.co.nz  04 576 1411  PO Box 30614, Lower Hutt 5040

Smith, Meriana Waitangi Would any lawyer holding a will for the above-named, late Birkenhead Avenue, Birkenhead, Teacher, born on 17 November 1981, who died on 4 October 2017 please contact John Tattersfield, Lawyer:  john@tlawyer.co.nz  09 443 1395  PO Box 311 034, Glenfield, Auckland 0747

Taukiri, Shane Jason Would any lawyer holding a will for the above-named, formerly of Whakatane, Driver, then of Papakura, Manager and latterly of Matamata, Grocery Manager, who died in Hamilton on 11 October 2017 aged 49 years, please contact Don Howden, Jones Howden, Solicitors:  don.howden@joneshowden.co.nz  07 888 7072  PO Box 1, Matamata 3440 - DX GA27017

Walker, Judith Ellen Would any lawyer holding a will for the above-named, late of Merrivale Rest Home & Hospital, 1 Winger Cres, Springs Flat, Whangarei, who died at Whangarei on 28 October 2017 please contact Andrew Luxford, The Oaks Law Centre:  apl@theoakslaw.co.nz  09 430 0207  PO Box 200, Whangarei 0140

Wheeler, Paul Would any lawyer holding a will for the above-named, born on 2 September 1971, Installation Technician, who died at Auckland Central on 14/15 October 2017 aged 46 years, please contact Grant Litchfield, Complete Legal Ltd, Solicitors:  grantl@completelegal.co.nz  09 237 0291  PO Box 264, Pukekohe - DX EP77026

Williams, Ivy Would any lawyer holding a will for the abovenamed, late of St Andrews Village, 207 Riddell Road, Glendowie, Auckland, who died on 8 September 2017 aged 89 years, please contact Pearl Butler, Gellert Ivanson:  pearl.butler@gellertivanson.co.nz  09 575 2330  PO Box 25239, St Heliers, Auckland 1740

L AW TA L K 9 1 3 · D ecember 2 0 1 7

CLASSIFIEDS · LEGAL JOBS

REFEREES, DISPUTES TRIBUNAL

REFEREES, DISPUTES TRIBUNAL

There will shortly be a process for the appointment of Referees in the Nelson/Blenheim Region. Members of the public are invited to submit the names of persons who are considered suitable for appointment as Referee.

There will shortly be a process for the appointment of Referees in the Auckland Region. Members of the public are invited to submit the names of persons who are considered suitable for appointment as Referee.

Nominations must be sent in writing or by email.

They must contain the name, address, telephone number and email address of both the nominator and the person being nominated.

Nominations must be sent in writing or by email.

They must contain the name, address, telephone number and email address of both the nominator and the person being nominated.

Once a nomination has been received, the person who is nominated will be sent an application pack with details relating to the position and how to apply for it.

Once a nomination has been received, the person who is nominated will be sent an application pack with details relating to the position and how to apply for it.

Nominations are to be made to the Principal Disputes Referee, Private Bag 32 001, Featherston Street, Wellington 6146, Ph: (04) 462 6695, or email: Kelly-Lea.Brown@justice.govt.nz

Nominations are to be made to the Principal Disputes Referee, Private Bag 32 001, Featherston Street, Wellington 6146, Ph: (04) 462 6695, or email: Kelly-Lea.Brown@justice.govt.nz

Nominations must be received by this office no later than 12 noon on Wednesday 20 December 2017.

Nominations must be received by this office no later than 12 noon on Wednesday 10 January 2018.

TWO INTERMEDIATE LAWYER ROLES Izard Weston seeks new talent!

We are a fleet-footed, long established and highly regarded mid-sized law firm based in Central Wellington and are looking for two new solicitors to join us – a litigator and a commercial/property lawyer.

Both roles require the candidate to have the ability to work autonomously and maintain substantial client contact.

The successful applicants will be capable lawyers with a good sense of fun and a life outside work.

INTERMEDIATE LITIGATION LAWYER We are looking for a bright and talented civil litigation lawyer. Applicants should have strong advocacy skills and litigation experience, and have appeared as counsel in courts and tribunals. This role will give you great hands-on experience across a range of interesting work.

In addition to a good understanding of civil procedure and commercial litigation, experience in some of our specialist areas would be an advantage (but is not essential): energy, motor trade, maritime, media, trade practices, consumer law, property, insolvency, debt collection, information technology, sports, insurance, regulatory issues and employment law.

COMMERCIAL/PROPERT Y/PRIVATE CLIENT LAWYER We also seek a commercial/property/private client lawyer. Applicants should preferably have experience in each of these areas of practice and be prepared to turn their hand to a wide range of different work. Whilst you will work closely with our partners and be able to learn from them, your role will also involve plenty of contact with our clients and other practitioners. It will be a great opportunity to grow both your legal and professional skills.

Terms of employment will reflect the experience and ability of the successful applicants.

Applications for these roles, together with your CV and full academic transcript, should be sent to Richard Hogan, richard.hogan@izardweston.co.nz, or mailed to Izard Weston, PO Box 5348 Wellington, 6145 75

LONDON

Our clients in London are actively seeking first-class Commonwealth qualified lawyers to commence in 2018.

All applicants must have: Legal experience gained in a top-tier law firm At least 3 years of post-admission experience

Areas currently in demand:

IS MOVING TO THE UK YOUR NEW YEAR’S RESOLUTION? If you are interested in exploring your options overseas, please contact us at enquires@claritynz.com and one of the team will be happy to assist you!

Construction Dispute Resolution Please note: UK firms will Corporate Immigration usually discount New Zealand Corporate Insurance PQE by 2 years due to the UK training contract period. On Payments and Financial Products that basis, the PQE outlined Project Finance in our vacancies are PQE levels these clients would Property expect from NZ or Australian Restructuring qualified lawyers.

Banking TMT www.claritynz.com Data Protection

IS 2018 YOUR YEAR? Thank you to all of our valuable candidates and clients. 2017 has been a remarkable year, but we have a feeling 2018 will be even better!

We hope you have a

Merry Christmas and a Happy New Year!

Head on over to our website for a free CV review! www.claritynz.com

If you are a candidate seeking a new opportunity, or a business that would like help finding that perfect person to join your team, we have experienced Consultants ready to help you! If you have already made plans for the new year, or you are just starting to think about it, please get in touch now.

CPD Calendar PROGRAMME

PRESENTERS

To speak with a member of our team

Phone: 0800 333 111

CONTENT

WHERE

A practical two-day transaction-based workshop that will equip you with the knowledge and understanding to deal with the purchase, establishment, operation and sale of a business. A popular, regular in the CLE calendar.

Registrations open 13 December.

Christchurch

Some people in the legal arena can be hard to work with – solicitors on the other side of a matter, clients, witnesses, opposing parties, senior partners, judges or your own staff. People working in the law get challenged by difficult behaviours daily. The workshop will enable you to improve communications with everyone you deal with and reduce your stress in difficult communications.

Registrations open 6 December.

Wellington

WHEN

COMPANY, COMMERCIAL AND TAX INTRODUCTION TO COMPANY LAW PRACTICE

Local Presenters

13 CPD hours

7-8 Mar

Wellington

15-16 Mar

Auckland

19-20 Mar

GENERAL DEALING WITH DIFFICULT PEOPLE

Simon D’Arcy

5.5 CPD hours

CPD TOP-UP DAY

7+3 CPD hours

Chairs: Stephanie Marsden Steph Dyhrberg Jane Meares Lope Ginnen

Designed for the busy general practitioner to “top-up” your year’s CPD. A one-day programme offering 7 hours face-toface CPD together with a bonus 3 hour Online CPD, for you to complete when and where it suits. Whatever your level of experience, the programme will provide practical advice on hot topics across a range of practice areas, with a regional focus and presented by an impressive line-up of speakers.

28 Feb

Auckland

5 Mar

Christchuch

7 Mar

Christchurch

13 Feb

Wellington A

14 Feb

Wellington B

14 Feb

Auckland

15 Feb

Live Web Stream

14 Feb

PROPERTY LAND TRANSACTIONS – TAX COMPLIANCE

Peter Barrett Mike Brunner

This webinar will provide both legal and accounting perspectives regarding tax statements, the bright line test, RLWT and GST issues on the sale & purchase of land. You will gain a sound understanding of what tax information is required for land transactions and how to avoid tax compliance headaches.

Webinar

5 Dec

Stella Chan Michael O’Flaherty

Whether acting for a landlord or a tenant, it is always the priority of the commercial leasing lawyer to help negotiate the best terms and conditions with the aim of ensuring your clients are able to achieve their objectives. This webinar will focus on the ADLS lease form in addressing specific issues related to; agreement to lease, deed of lease, variation of lease, assignment, and sublease.

Webinar

6 Dec

1.5 CPD hours

COMMERCIAL LEASING UPDATE

1.5 CPD hours

For FULL CPD calendar see www.lawyerseducation.co.nz

LIFESTYLE

LIFESTYLE

Buy carefully on London Food Tours

BY JOHN BISHOP Food tours are enormously popular in many major cities around the world, and often in areas with unique cuisines. London presents a special challenge as Europeans generally look down upon English cooking as stodgy, provincial and unimaginative. John Bishop found there is plenty to be delighted about as he took three food tours around London, with some history and culture thrown in.

▸ The Hawley Arms, Camden.

Performance venue for Amy Winehouse.

Each of the tours I chose varied widely in price and content. Deliberately so, because I wanted a range of experiences, and because I was determined to try free stuff (although, of course, it wasn’t actually free at all).

Top of the line was a twilight food and cocktail tour of Soho which I undertook on a Friday night. At £95 this was the most expensive, but it was also the best. The guide was the most knowledgeable and professional of the three I had. The food was the best, and most importantly it took me to places that I would not have found easily by myself.

The cheapest was a walking tour of Camden Town. This was less about food than about music, the counter culture and nostalgia. This is Amy Winehouse country and I happily drank in the pub where she sang, and often drank. I rated this second. It was supposedly free, although the blurb said participants were free to pay the guide what they though the tour was worth. I handed over £15, while Price is a others seemed to be a little less generous. faithful though

Traditional British Food Tour The disappointing one was a £63 walking tour of the London Bridge markets. There were plenty of samples and many of them were tasty too. But I couldn’t shake the feeling that I could have come here by myself and wandered around and got most of the samples anyway.

It is called the Traditional British Food Tour and is organised by Secret Food Tours, a company which operates tours in 15 cities around the world. It is 78

not an infallible guide, but beware of the overpriced and the mediocre.

Pay for what you can’t get yourself; otherwise go the free route and tip when you are satisfied.

neither particularly secret nor especially worth it. That wasn’t the fault of Eddie the guide who was knowledgeable and entertaining.

The problem lies in the design of the tour. There is barely enough here worth paying for. Most of the action centres on the Borough Market, one of the city’s oldest. A market has operated at or near there since 1016 and was rehoused under London Bridge in 1756.

It’s directly opposite the London Bridge Tube Station and very definitely open to the public. The £63 fee presumably buys the various food samples and pays the guide. We got a piece of Scotch egg, half a piece of fish and some chips (from London’s prize-winning fish and chip shop, an accolade which seemed wholly unmerited to many of us), a piece of pork pie (which was top class), samples of mead, some cider and three types of cheese in an old pub (all enjoyable), a topclass cream donut and then some tea or coffee to end the tour.

One delight – in the market but not part of the tour – was the Monmouth Café which served a wonderful flat white fully as good as the best in New Zealand.

A halfway competent traveller able to work the internet could have come to the

LIFESTYLE

▴ A rare, very good coffee shop — Monmouth Coffee, Camden. market, taken the samples being offered by the stall holders, bought what was in our tour fee and still had change. I’ve no objection to paying for added value; I’m just not sure where that was in this case.

Music, Marx and Orwell

▴ Amy Winehouse statue in Camden.

At Camden Town I join eight others for a free guided walking tour (freetoursbyfoot.com). This was a cracking good experience. Colin, the guide, loves Camden, though he is from Essex. He knows his stuff about the area, and he tells the stories in an engaging and interesting way. Nominally this is a free tour lasting about 2.5 hours. It took longer, not that anyone was complaining and we all paid him.

He talked knowledgeably and with affection about the origins of the area (navvies – mainly Irish – building the canals and then the railways), of its bohemian and then hippie status, of Amy Winehouse, of the various bands that began careers here (think Pogues, The Clash, Madness, Blur, Oasis, and earlier Led Zeppelin, Pink Floyd), and venues like the Roundhouse and Dingwalls where ex-Animal Chas Chandler built the longest bar in the world because he thought clubgoers were too often frustrated by not being able to get a drink.

The markets retain their alternative feel; T-shirts rule and at the Hawley Arms, where Amy Winehouse sang and drank, I down a glass in her memory. Her statue is in the market and her image is on many walls as a mural.

79

LIFESTYLE

It wasn’t all music. George Orwell lived in Arlington House, then and now a refuge centre for those struggling in life. He’d been working at Maxim’s in Paris and retreated to Arlington House to write Down and Out in Paris and London. It was a home for the homeless, “one of the better ones” Orwell noted.

The Black Cap, a gay pub famous for its drag acts was here. In the 1970s the air was reckoned to be four parts oxygen and one part marijuana.

Oasis and Blur, before either was famous, drank together in The Good Mixer pub and then, when both were raving successes, argued about who was top dog and fell out irretrievably.

Soho was originally outside the walls of the city of London and in the 15th century was a hunting ground for the rich.

The name apparently comes from a cry uttered by hunters chasing hares …. so there’s a hare.

Later manor houses were built and by the 18th century many immigrants were living there, outside the city walls, and seemingly beyond the jurisdiction of the city authorities. Gin palaces, brothels and gambling dens thrived. Later, bohemian elements came to the area, including musicians, and by the 1960s it was the centre of Britain’s sex industry.

Now it is a thriving and prosperous entertainment area, still with just a few sex shops, many pubs, cafes and restaurants, lots of very upmarket fashion stores, and still a few recording and media companies.

(Carnaby Street is part of it; chic, elegant and expensive).

Pie and bitter I bought a Twilight Soho Food and Cocktail Tour with Eating Europe Tours (operating in five European cities). At £95 (about $180) I was expecting a lot, and I certainly got it.

The night began with tequila cocktails served with lime, crushed ice and coconut, and then on to Minnie Dean’s pub (no connection to her Kiwi namesake) where we enjoy one of the best meat pies I have ever had washed down with a half of bitter.

On to Enrique Tomas in Wardour Street, a chain of Spanish bars where we are served three types of Spanish ham, three types of cheese and two wines, all with an informed commentary on taste and provenance sitting at a reserved pre-laid table.

Across the road and around the corner 80

▸ Food selection at the Borough Market. Breads, fish, cheese, and oysters.

LIFESTYLE

▴ Friday nights in Soho. ▸ Part of the Twilight Soho Food and Cocktail tour. to a very swish tapas bar: help yourself to two tapas and move to a table at the rear where drinks are served. I enjoyed ham and a prawn on toast and a cup of gazpacho.

We are among fashionable diners drinking, talking, sampling and admiring each other as the in-crowd does all around the world.

We pass the house in Dean Street where Karl Marx and his wife and family lived during their early days in London. Some of his children were born and died there.

It’s now an exclusive gentlemen’s retreat above a pub, opposite a strip club and by the famous De Lane Lea recording studio itself now owned by Warner Bros.

The highlight for me was a place called Opium in Gerrard Street, a bar and hospitality venue on three levels. We climbed the narrow stairs to the top floor to find an oriental style room and a relaxed cocktail table setting.

A cocktail of honey, tea and vermouth is served, along with dim sums, among the best ever; pork and shrimp, plus big prawns, and chicken, with dipping sauces of chilli, soy and Chinese vinegar.

Absolutely fabulous tastes and textures, generous servings and nothing left behind.

Our last stop was a well reviewed underground bar called Basement Sate in Broadwick Street where we are treated to a rich French chocolate dessert with a cocktail of tequila, aperol and sugar syrup topped with prosecco.

Over three hours, this was a top of the line experience, and while wildly self-indulgent, was worth the money for the quality of the company, the knowledge of the guide (Bethany, originally from the US but resident in London), and for the access

to places which might have been found by accident, but likely not.

Price is a faithful though not an infallible guide, but beware of the overpriced and the mediocre. Pay for what you can’t get yourself; otherwise go the free route and tip when you are satisfied.

John Bishop is a travel and food writer who visited London again this year. He travels on his own dime. See  www. eatdrinktravel.co.nz 81

82

LIFESTYLE

LIFESTYLE

Reflections from Peter Garrett

BY NICK BUTCHER “If you’ve got your marbles and you’re not falling over and you’re serious about your craft, you can get better at it.”

That loose statement could quite easily apply to practising law; after all, many lawyers practise well into their 70s and beyond.

But it was made by former lawyer and politician Peter Garrett as to why his band, Midnight Oil, best known for international hits like Beds Are Burning, The Dead Heart and Blue Sky Mine, reformed to tour the world.

Garrett was recently in New Zealand as part of the group’s Great Circle world tour, performing in Auckland and Christchurch.

He quit politics in 2013 after about a decade with the Australian Labor Party. He had become part of the government under Prime Ministers Kevin Rudd and Julia Gillard, holding various ministerial roles including for the Environment, Heritage and the Arts.

Garrett is a towering figure at 1.93 metres tall and the day before the Christchurch concert at the Horncastle Arena, he was interviewed in front of a live audience by journalist Finlay Macdonald.

That session was followed by a book signing of his memoirs Big Blue Sky along with an audience question and answer session.

The interview delved into aspects of his book, the band Midnight Oil which he joined in the mid-70s as a young law student in Sydney, his life in politics and his continued fight for environmental protection and the rights of the aboriginal people of Australia.

Garrett says the band was surprised by the response it received to getting back together. “We thought we would simply do a handful of shows and then it spiralled into a world tour.”

My parents

Sold out shows, and the marriage equality debate In fact their shows sold out for their North American leg and the Oils – as they’re affectionately called by their followers – returned to the United States on completion of their European tour for a second

◂  Flickr user Bruce b

loved nothing more than to sit around with a brandy or red wine talking about and debating politics. As a young lawyer, I found that stimulating.

lick before heading Down Under.

In New Zealand, the Marriage (Definition of Marriage) Amendment Act 2013 enshrined marriage equality in law, but across the Tasman the issue is being debated and opinion is divided.

To gauge the sentiment as to whether same sex marriage should be allowed, a nationwide postal survey form in the way of a voluntary vote has been mailed out.

But even if the response is a resounding yes to same sex marriage, Garrett says that doesn’t necessarily mean a law change will occur.

“The result isn’t binding on Parliament. I think it will get over the line. I’m certainly supporting it yet the process is actually diverting Parliament from making an actual decision,” he says.

Garrett was an environmental activist before he joined Midnight Oil and eventually landed in politics. Many of their lyrics tackle issues concerning Aboriginal rights, the environment and other social justice themes.

Moving from activism to parliamentary, party politics “It was a carefree lifestyle when I was young. I just wanted to ride waves and meet girls,” he says.

That wouldn’t always be the case.

“I have always thought there is a role for people who care about politics to be politicians. I did stand as a candidate for the Senate in the early 1980s for the Nuclear Disarmament Party. I finished up in 2002 with Midnight Oil because I was the Australian Conservation Foundation 83

LIFESTYLE

president, I was spending a lot of time with NGOs in Canberra and I felt the Oils had achieved what we had set out to achieve,” he says.

Midnight Oil released 11 studio albums and their last offering Capricornia was in 2002.

Garrett has always been a self-determined man. His father died when he was a student at university and his mother also died in a fire at the family home when he was young.

Both events spurred an even stronger fight in Garrett to enter politics.

“My parents loved nothing more than to sit around with a brandy or red wine talking about and debating politics. As a young lawyer, I found that stimulating. I’ve subsequently found that I have forebears who were politicians, although they were Tories,” he says.

Fighting for rights Midnight Oil has always stood up for indigenous land rights in Australia which is evident in the politically charged song Beds are Burning. It’s an issue he continues to throw his weight behind today.

“When that came out in the 1980s, radio stations wouldn’t play it because it’s about giving land back to the Aboriginal people.

It wasn’t until it was a hit in the USA that they started giving it airplay,” he says.

The Oils also toured with Warumpi Band whose members were all aboriginal. The tour was called the ‘Black Fella, White Fella’ tour and went into areas where the Indigenous people were the majority, or even the only population.

In 1990 they performed a live street concert in New York aboard a truck trailer in front of the Exxon building to protest oil spills.

Their slogan was ‘Midnight Oil makes you dance, Exxon oil make you sick’. At the time, US Secretary of State, Rex Tillerson was the general manager of Exxon.

“We were earnestly self-righteous back in our day and I think some of our music colleagues found us quite insufferable,” Garrett says with a laugh. But he stands by their decision to protest outside Exxon.

Do they still have the fire in their bellies?

Midnight Oil performed at Horncastle Arena in Christchurch as if they were auditioning to be the best live act in the world.

It could not be described as a nostalgia gig by a band playing for their retirement fund.

They brought an intensity from the first song Redneck Wonderland and didn’t lose a beat of energy for over two hours. It was hard to fathom that these guys were in their 60s but then what does being in your 60s even mean these days? The concert was an explosion of hits but then the Oils 84

▴ Peter Garrett (right) with Journalist Nick Butcher.

They brought an intensity from the first song Redneck Wonderland and didn’t lose a beat of energy for over two hours.

It was hard to fathom that these guys were in their 60s but then what does being in your 60s even mean these days?

also ventured back in time to their very early days, performing a rousing version of No Time for Games from the Bird Noises EP which was released in 1980.

The band thundered through the arena taking the crowd on a musical journey through their catalogue of albums such as 10,9,8,7,6,5,4,3,2,1 including playing Only the Strong, US Forces and Power and the Passion.

There were many songs from the 1989 album Blue Sky Mine and the mid-80s Diesel and Dust including Sometimes, The Dead Heart, which lead to the crowd singing along during the chanting harmony.

The late 1990s album Earth and Sun and Moon was also splashed on a crowd that just kept calling for more and included Truganini and One Country, where Garrett sat on stage crooning the ballad while guitarist Jim Moginie switched to keyboards to accompany him.

In a second encore, Midnight Oil finished with Best of Both Worlds from the 1984 album Red Sails in the Sunset. It brought a crescendo effect to the experience.

Was this tour a final swansong from one of Australia’s finest rock groups? I’d doubt that very much and I’d expect to see a new album and a second tour.

As Garrett said during the Christchurch concert “I feel like I’m having my second childhood”.

Just how long that childhood could last, is anyone’s guess. After all, the Rolling Stones are still touring in their mid-70s.

LIFESTYLE

1

2

3

4

5

6

7

8

9

10 11

12

13

14

15 16

17

20

A New Zealand Legal Crossword

18

19

21

22

23

24 25

26

27

28

29 30

31

32

33

34

Across

Down

1 Shut out of small houses (4)

1 A 22 30 might love clowns as

3 A type of rugby and a type of lilly

comedic (5,6,6)

returned to a work of 10 (5,7)

2 “Drink in Atom Bomb” a 22 30? (7)

11 Smack beginners over opening,

4 See 19 Across

raising former currencies (7)

5 Egghead’s wheels won French

S

12 Holiday works its charms (9)

dish (8)

H

13 Instruction to broker: forment

6 Supreme Leader taking refuge on

E

chaos (4,5)

island (4)

15 Butler’s place to drop hot right

7 Like Molière’s Harpagon, man is

half back before this time (3,3)

early, I’m told (7)

17 22 artist and musician taking no

8 A bouquet from the Empire? (5,4)

drugs? (3)

9 A 12 30 about the joys of

18 I tow Harry, magically capable of

computer programming? (3,1,9,4)

A

flight (9)

10 Ran a work by this 22 30 14 (8)

T

19/4 Welshman - not English -

14 He manages unsecured creditor

S

hesitates by proprietors (6)

(8)

20 At home position, for example (8)

16 An insubstantial case found in

22 Yes, European Windows ME

“The Wizard of Oz” (8)

finally to become Asian! (8)

21 Tiger seen running on African

Across:

25 Fish is playing music backwards (3)

plain (9)

1 Maker, 4 Gas, 6 Rasta, 9 Oarsman,

26 Hoot heard by master of

23 This could be the type of 10’s

10 English, 11 Irony, 12 Titan,

business in Queensland (9)

throne, and a bench may be

13 King, 15 Muesli, 16 Enough,

27 Oddly quit sex life for a 12 30 (3)

diminished (8)

18 Summa, 19 Peters, 22 Remand,

28 Had no unassuming characters,

24 Divinity’s gone downhill, I hear;

24 Bill, 26 Mania, 27 Votes, 29

like the meek who are blessed? (6)

it appeared in many 22 30s (8)

Winston, 30 Jacinda, 31 Riser,

29 Finn lazed, drunk on Californian

26 Clap tooth tips on the bottom (7)

32 Dom, 33 Lamps

wine (9)

27 Circling journalist breathing his

31 Grind book in place of

last (7)

Down:

Yorkshire’s trouble (9)

30 Flick out of fulfilment (4)

1 Maori, 2 Karaoke, 3 Rummy,

32 Italian 30 14 was overcome in

32 Agency employing female

4 Gandhi, 5 Seeing, 6 Right On,

one (7)

attracted to either sex (3)

7 Shihtzu, 8 Ashen, 13 Kiss, 14 Nimbi

33 It came, roughly, to hold two

15 MMP, 16 Earl, 17 Had, 20 Tenants,

animals in the style of “its body brevity,

21 Reactor, 23 Antonym, 24 Binned,

and wit its soul” (Coleridge) (12)

25 Logjam, 26 Mower, 27 Vocal,

34 Stare impertinently at Shrek after

28 Seats

swapping hands (4)

SET BY MĀYĀ

M

A

A O

A

R I

K

E

A R

S

A R

O

R

G

S

R

U

A

E

I

N

E

D

I

M M

N

Y

K M

U

E

S

L

E

T

E

A

O W

I

A I

E R

N

N

S

T I

S

E

R

I

I S

E M

H K

M P

A

A

N

S

M

G

T

G

O E

M

E

B

A

I

O

V

C

N

G

O

T

O

L

I

S

H I

T

A

N

G

H

Z O

M

L

U

A

A

N

D

E

S

N

N

J

O

E

A

A

R

D

M

L

O

L

A

A

E

I

T

A R

B

N

S H

H

N

I U

N

A

C

O

T O

I

N

E D

Y A

M

P

Solution to October 2017 crossword

85

TA I L - E N D

TAIL-END

About those new robes…

What new robes?

So why the change?

The ones the members of the Supreme Court judiciary wore to the opening of Parliament last month.

The Judicial Office for Senior Courts says the new robes have been adopted to reflect New Zealand traditions and history and the aspirations with which the Supreme Court was established by Parliament in 2004. The new gown is the same design used in the UK Supreme Court ceremonial dress, but instead of a traditional English design, it features a stylised kauri cone and leaves in the black on black weave, to represent New Zealand and the shelter of the law. Our distinctive heritage under the Treaty of Waitangi is reflected in a poutama pattern trim in red, black and gold.

Embroidered shoulder wings feature the three baskets of knowledge of Māori tradition set in fern fronds, “representing the common law method which is to work with knowledge of the past and an eye to knowledge of the future, while adding the insights of the present when responding to the needs and questions of today.”

You mean the gorgeous but over-the-top red robes and full wigs are no more?

They’re gone. The scarlet woollen gowns (known as the “Reds” in the judicial robing room) along with the full-bottomed wigs were introduced as ceremonial wear for judges of the High Court in the 1940s. The “where Britain goes, we go” mindset of the time meant we copied the attire worn by the judges of the High Court of England and Wales. They’re not even worn by the UK Supreme Court judges now – they wear a black damask robe embellished with gold and with a Supreme Court logo (if that is the correct term) embroidered at the yoke.

But our Supreme Court and Court of Appeal judges don’t wear wigs or robes…

The new robes are for ceremonial occasions. While High Court judges wear a black legal gown, the Supreme Court and Court of Appeal judges (from 1 July 2011) have been wigless and gownless when sitting in court.

Notable Quotes

Is this just for the Supreme Court?

No … well, at the moment. “Initially the robes will be worn by Judges of the

❝ Mr Joyce MP became a New Zealand citizen by descent by virtue of s 7 of the [British Nationality and New Zealand Citizenship] 1948 … Act, which provided that a person born after its commencement is a New Zealand citizen by descent if his father was a New Zealand citizen at the time of his birth. Mr Joyce MP’s acquisition of New Zealand citizenship by descent did not depend upon registration or other formality. ❞ — The High Court of Australia decides that Australian Deputy Prime Minister Barnaby Joyce – born in Australia 20 years after his New Zealand-born father moved there, and with an Australian mother – is incapable of being chosen as a member of Australia’s House of Representatives: Re Joyce [2017] HCA 45 at [109].

❝ I don’t wish to criticise these professionals; they do a great job … but it appears to me, having performed this role for many years, that that’s a delay in the order of which I have never heard before and it’s unacceptable. ❞ — District Court Judge Michael Crosbie comments in Dunedin District Court after hearing that it would take the Southern District Health Board 10 weeks to prepare a report under the Criminal Procedure (Mentally Impaired Persons) Act 2003.

❝ Luckily she said yes, we both reconfirmed with each other when we were on the ground. ❞ — English lawyer Chris Jeanes who proposed to his partner Casey Kinchella when their Air Asia flight from Perth, Australia to Bali suddenly plummeted over 20,000 feet before recovering.

❝ I hadn’t been here until I came for the interview. But I like Whanganui. I think it’s good being in a smaller town and in a smaller firm because I’m doing lots of different stuff. ❞ — Newly admitted Whanganui lawyer Claire Middleton gives a thumbs-up to her choice of location and employer, Wilkinson Smith.

86

TA I L - E N D

Ravenscroft. Established in 1689, they’ve been making wigs (100% horsehair and “treated according to UK health regulations”) and gowns for a long time.

One for each judge?

The Judicial Office says the gowns are the property of the Court and are handed down from one judge to the next on retirement.

What should lawyers wear on ceremonial occasions?

A Wellington artist, Ros Bignell. A bit like our court system, Ros originates from England having migrated here 23 years ago.

Oh, and the gowns were made in London by Ede and

The historic costume of horsehair wig, black gown and bands that lawyers wore in New Zealand senior courts was dispensed with in 1996 and became optional for ceremonial occasions. The alternative dress for those occasions is a black gown over business attire. Many lawyers feel they need to be togged up in the full costume to take their place at the bar – this has led to dwindling numbers taking their place at the bar for those ceremonial occasions. The black gown over business attire is now more common and lawyers are encouraged to adopt that style and to take their place at the bar rather than sit in the public gallery for ceremonial occasions. What are not allowed are variations and mix and match in costume – for instance, a wig and gown worn over business attire only. This has been the subject of guidance from the Chief High Court judge in the past.

❝ Show me the money. ❞ — At a sentencing hearing in Wellington District Court, Judge Ian Mill asks Jason Brown, convicted of stealing $128,611 from his employer, about his promise to pay $6,000 to the court in reparation. However, after sentencing was delayed for several days to allow the funds to clear, it was discovered that Mr Brown had gambled the money away in the interim.

❝ Ah, it’s a bit like playing competitive sport, you know? At the time you’re in there, it’s really horrible and you don’t know what you’re doing, then you come out the other side, breathe a sigh of relief and think it wasn’t that bad. ❞ — Semi-retired and living in Tauranga and Spain, Ross Burns responds to a Bay of Plenty Times question on whether he misses being in court.

❝ It’s a catalogue of sexual harassment, stalking, social media abuse, sexual innuendos, verbal sexual abuse, touching, sexual assaults, requests for sex, cover-up, isolation and bullying. ❞ — Scottish human rights lawyer Aamer Anwar reports that women at all levels of the Scottish Parliament have been subjected to sexual harassment.

❝ If y’all think I did it, I know that I didn’t do it so why don’t you just give me a lawyer dog cause this is not what’s up. ❞ — An ambiguous or equivocal reference that did not constitute an invocation of counsel which warranted termination of the police interview of the defendant, the Louisiana Supreme Court has decided.

Supreme Court on ceremonial occasions including, for example, the swearing in of new judges and admission of barristers to the bar. [And, of course, for the annual opening of Parliament].

Over time they will be rolled out for use in the Court of Appeal and High Court,” the Judicial Office says.

Who designed them?

87

Get a

FREE TRIAL

Practical Guidance Investing in New Zealand

http://info.lexisnexis.co.nz/pginvestingtrial LexisNexis and the Knowledge Burst logo are registered trademarks of RELX Inc. Š 2017 LexisNexis NZ Limited. All rights reserved.

MP112017LL

Investor information in one central hub