20 JULY 2012 / 800
FOR THE NZ LEGAL PROFESSION
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8 0 0 I S S U E S O F L AW TA L K (or perhaps that was 802 issues? – story on page 16)
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FEATURE: LAWTALK’S 800 TH ISSUE
“It’s just common sense. In committing to a few changes we could cut down on electricity consumption. It’s good for the environment and our pockets.” p. 5
“ideas for improvements are always welcome.”
The paperless office
4 Lawyers learning to live paperless By RACHAEL BRECKON
The western world has learnt the truth behind Kermit the Frog’s 41-year-old lament “it’s not easy being green”...
5 Compensating for your cost to the environment By HANNAH GRANT
Cut carbon emissions and improve your bottom line...
6 Defining business sustainability By RACHAEL BRECKON
The road to becoming the world’s first CEMARS accredited IP law firm has been rich with learning for James & Wells...
Legal winners of Fulbright awards
Philanthropy initiative gains Queen’s honour
Five lawyers and two legal academics have received 2012 Fulbright awards...
11 The art of juggling By HANNAH GRANT
Mother of two, Plunket New Zealand board member and practising solicitor, Andrée Talbot admits she juggles furiously...
14 Providing a top defence service
By RACHAEL BRECKON
Lawyer Bill Holland was “very pleased” when he received the New Zealand Order of Merit but was also a little taken back... District Courts about to make history History will be made in the District Courts on 23 July...
24 Cost assessor – why you would want to be one By Niamh McMahon*
Two words kept cropping up when LawTalk talked to Public Defence Service (PDS) director Brendan Horsley this month. They were the words “top notch”...
I became a cost revisor (as it was known then) around 1995. At the time there was a shortage of cost revisors...
Family and ACC legal aid fixed fees Fixed fees for most family legal aid cases and ACC legal aid cases commence on 23 July...
16 LawTalk celebrates 800 issues LawTalk reaches another major milestone with this issue...
People in the law
From the Courts
Lawyers Complaints Service
nzls lawyers website • keep up-to-date with local and regional news and events • have your say on law reform • find information and resources for practising law http://my.lawsociety.org.nz www.facebook.com/mylawsociety https://twitter.com/mylawsociety
LAWTALK 800 / 20 JULY 2012
FROM THE LAW SOCIET Y JONATHAN TEMM
he Ministry of Justice has advised that, subject to Ministerial approval, amendments to the Lawyers and Conveyancers (Lawyers: Practice Rules) Regulations 2006 will come into force on 1 October 2012. These changes will mean that Stepping Up will be a prerequisite for lawyers intending to practice on own account as barristers sole. Lawyers who have already commenced practise as a barrister sole will not be required to do the course. The question of barristers’ training was initially discussed with the New Zealand Bar Association (NZBA) in May 2009. The Law Society Board at that time noted that a consistent thread in comments and complaints about the competency of lawyers was the need for better training for barristers. The first step in improving competency in relation to barristers sole was to bring the experience requirement in line with barristers and solicitors practising on own account. This meant increasing the experience requirement from six months (brought in with the Lawyers and Conveyancers Act 2006) to three years. The attendance of barristers at the new Stepping Up course was endorsed by the NZBA and the then NZBA President, Colin Carruthers QC, participated in a needs analysis workshop to design the new course. The Stepping Up course replaced the Flying Start course in July 2011. This course is a major building block in the Law Society’s competency and professional development programme. It was recognised that all lawyers practising on own account had the same needs. Barristers sole also
LAWTALK 800 / 20 JULY 2012
needed to know how to run the business of a law practice and the obligations of the practice. They also needed to understand and apply the Rules of Conduct and Client Care. The course covers business planning, marketing and understanding the importance of delegation, supervision and handling the stress of being a lawyer on your own account – all vital to the success of a law practice. The new rules also reduce the time period between completing Stepping Up (or Flying Start) and when a lawyer must commence practice on own account. Lawyers will now have two years to commence practice after completing the course, instead of the current three-year requirement. We are committed to ensuring that we maintain and enhance our reputation as a competent and trustworthy profession. These changes form part of the Law Society’s competency and professional development programme, as does the move towards mandatory continuing professional development (CPD). At its last meeting, the Law Society’s Board considered the submissions it had received on the proposed scheme of mandatory CPD. I am pleased to say that the large majority of submissions were in favour of a mandatory scheme. The Law Society is currently working on incorporating a number of the submissions into the proposed scheme and we will be providing regular updates over the coming year.
Jonathan Temm New Zealand Law Society President
LAWTALK More than 12,000 copies of LawTalk are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certificate. Although the number of lawyers with practising certificates varies, it is typically around 11,500. Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.
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Coming up … Competition law
development has led him to design therapeutic models for treatment.
The 23rd annual workshop of the Competition Law & Policy Institute of NZ will be held in Auckland on 3-4 August.
Family Court and Youth Court professionals, including judges, are among those who should attend, Brainwave Trust says.
Professor Howard Shelanski, who teaches law at Georgetown University in the United States, is the keynote speaker. Professor Shelanski’s teaching and research focuses on antitrust, regulation and telecommunications policy. In 2004, he received Berkeley Law’s Rutter Award for Teaching Distinction.
The conference will be held in Auckland on 22 August, Wellington on 23 August and Christchurch on 24 August. See www.brainwave.org.nz.
The workshop will take place at Simpson Grierson, Level 27, The Lumley Centre, Shortland St, Auckland. For more information see http:// clpinz.org.nz/Site/Next_ Workshop.aspx and to register email email@example.com.
Transforming childhood trauma A one-day conference focusing on the current neuroscience and preventative practices for caring for vulnerable children will be held in Auckland, Wellington and Christchurch in August. Entitled Transforming Childhood Trauma, the conference has been organised by Brainwave Trust Aotearoa, which aims to raise public awareness about new findings in brain research and to educate everyone who has an impact on the early life of children about the important implications of this knowledge on our children’s physical, social, intellectual and emotional development. World-renowned neuro-psychiatrist Dr Bruce Perry will lead the conference. His work with abused and neglected children and his research into brain
CLIENTS WITH The views expressed in LawTalk are not necessarily those of the New Zealand Law Society. Articles may be reproduced provided acknowledgment is given to LawTalk.
ACC DISPUTES? JOHN MILLER LAW
Level 1, 13 Leeds St I PO Box 6314, Wellington +64 (04) 801 5621 I firstname.lastname@example.org www.jmlaw.co.nz
Property law The Law Society of Northern Ireland is hosting an international property conference in Belfast on 27 and 28 September. Topics will include land tenure, urban development, banking and the credit crisis, property law and human rights. The conference is presented in association with the Commonwealth Lawyers’ Association and Queen’s University, Belfast. See www.lawsociety.ie/ Pages/Events/Property-LawConference. To book, email clabelfastpropertyconference@qub. ac.uk.
International Malaysian law The International Malaysian Law Conference 2012 will be held in Kuala Lumpur from 26-28 September. Themed Asian Perspectives, Global Viewpoints, this conference will explore the impact of law on business, society and government. The Malaysian Bar is inviting members of other bar/law societies to register and is offering discounted rates to lawyers with two years or less in practice. See www. internationalmlc.com. LT
• Wish to refer them to a specialist ACC law firm? • With nationwide coverage? • We deal with ACC matters only and will not represent your clients in other areas.
LAWTALK 800 / 20 JULY 2012
THE PAPERLESS OFFICE
In 2008, New Zealand was estimated to have consumed 64,000 tonnes of office paper, the same weight as our national museum, Te Papa Tongarewa.
Lawyers learning to live paperless By RACHAEl breckon The western world has learnt the truth behind Kermit the Frog’s 41-year-old lament “it’s not easy being green”. Luckily for law firms looking to be more environmentally friendly, the production of quality legal advice is not too fossil fuel reliant. Besides travel and general office maintenance, lawyers’ biggest environmental obstacle in the road to greenness is their love affair with the printed word. Lawyers are not alone. In 2008 the Sustainable Government Procurement Project estimated about 64,000 tonnes of office paper a year were consumed in New Zealand.
obsession with printing and filing should be revised in the 21st century. LawTalk 789 looked at lessons from the Christchurch earthquake a year on from the devastating February 2011 disaster. The firms that had backed up their files electronically were in a substantially better position than those with inaccessible hard copy files sitting in physical folders. Webb Ross in Whangarei proves it is possible for a law firm to become paperless. According to managing partner Stuart Spicer the first step was convincing staff to shift their mind sets and believe it was possible to lawyer without paper.
Paper impacts on the environment in various stages of its production. From forest management and harvest through to post-consumer waste.
It is important to first sell the idea to staff, then have people who have a “real commitment to follow through” otherwise you are just “wasting time”, Mr Spicer says.
However, regardless of its environmental impact, there are other practical reasons that lawyers’
Webb Ross practice manager Mary Armstrong was the driver behind the move to a paperless workspace at the
LAWTALK 800 / 20 JULY 2012
medium-sized law firm (35 staff). The benefits in getting rid of all the paper have been financial as well as helping improve the global and office environments. They have saved money through using less paper and all the stationary that accompanies it, such as paper-clips and folders. Fewer printers and photocopiers result in hardware and energy savings. In terms of software, the firm’s existing practice management system could cope with going paperless and didn’t need to be upgraded. The firm timed the move away from paper to coincide with their scheduled computer update. There was the cost of an extra screen for each staff member. The data is initially stored onsite and backed up hourly at an offsite data centre. The most the firm stands to lose in the case of a natural disaster is an hour’s work, Mr Spicer says.
THE PAPERLESS OFFICE
Compensating for your cost to the environment By HANNAH GRANT Cut carbon emissions and improve your bottom line. Sounds like a win win doesn’t it? But, how hard is it to achieve carboNZero certification and will it be worth the effort? There are currently over 80 carbon neutral certified businesses in New Zealand and as carboNZero’s CEO, Graham Carter explains, the process can be simple, especially for professional service organisations. “It depends on the size of the organisation, but for a law firm it wouldn’t be that hard as we know where the main emissions come from: energy use, petrol and flights etc. Generally we find that when you reduce any emissions, you are reducing operating costs at the same time,” he says. To achieve carboNZero certification, companies first need to accurately calculate their greenhouse gas emissions and come up with a complete organisational carbon footprint.
Online tools Here are some online tools that could aid in the move towards a paperless office. PDFSAM - PDF Split and Merge A free open source tool to split and merge pdf documents. www.pdfsam.org/ Foxit To open, view, print and annotate a pdf. www.foxitsoftware.com/Secure_PDF_ Reader/ Accellion Accellion provides secure file sharing solutions via https. www.accellion.com Xero Advanced payroll, CRM, inventory management systems, plus a wide range of other specialised applications. www.xero.com
An organisational carbon footprint measures how many tonnes of greenhouse gas you emit through your business activities and emissions can come from things such as energy use through to the waste your business sends to a landfill. The carboNZero programme then requires organisations to put plans in place to manage and reduce their emissions through different projects and initiatives. Commitments to decrease emissions could include investigating more energy efficient systems for electricity, installing a GPS tracking system on company cars and using video conferencing facilities to cut down employee flight numbers. Finally, to achieve carboNZero certification, organisations must offset remaining greenhouse gas emissions which can’t be avoided by purchasing verified carbon credits through projects such as wind farms, reforestation and methane gas capture projects. “We require organisations to make behavioural changes to reduce their emissions and then offset what they can’t reduce. In our client case studies we find that the actual costs saved in reducing emissions always end up paying for certification.” “It’s all about being smarter as a firm and about how you organise yourself,” Mr Carter says. “Instead of flying down for one meeting one day then flying down for another meeting another day, make sure you get all your meetings in that location done in the same trip to reduce going back and forward. Generally there are quite a few easy wins which we can provide tools and advice for.” According to Mr Carter there are other numerous benefits to achieving carbon neutrality. He says that an organisation’s carbon neutral status can act in your favour as a differentiator in a competitive market. “If there is an equal offer in terms of service and price, carbon neutrality can often be a tipping factor and differentiator and speaks volumes
about your firm’s values. Your values in sustainability will also attract likeminded organisations in doing business with you. “The status is something that firms can be really proud of, but they must first ask themselves if these values are relevant to their clients and their key drivers.” If a decision is made to investigate carbon neutral avenues, Mr Carter says it’s important to get someone in the firm to champion the project and to do it properly. This is exactly what Jason RudkinBinks did. Partner at Hudson Gavin Martin, Mr Rudkin-Binks says it wasn’t hard to convince others at the firm that carboNZero certification was a good idea. “It’s just common sense. In committing to a few changes we could cut down on electricity consumption. It’s good for the environment and our pockets. “We offer professional services. We do not therefore buy third party products or produce physical goods for export so there is no transport or manufacturing chain to consider. “Our business it not that complicated so in terms of measurement it’s quite easy. We are quite fortunate in the profession that we are in, as it’s a relatively simple process,” he says. Certified two months ago, Hudson Gavin Martin made a commitment to reduce energy consumption, increase recycling and reduce travel spend by rolling trips into one or using Skype to communicate with clients. Essentially, every year you should be meeting your emission reduction commitments and thus buying fewer carbon credits. “In effect you are managing your own exposure and reducing your own output. “Ultimately it gives us a competitive advantage in the marketplace. Sometimes people hide behind the vague term ‘green’, whereas we have been very specific in measuring our cost to the environment and are now compensating for it,” says Mr Rudkin-Binks. Further, carboNZero runs networking events for clients to meet and connect with their other carbon neutral certified organisations. “If you have gone through the admin and cost of achieving carbon neutrality you are probably looking for suppliers who have done the same thing,” says Mr Carter. LT
LAWTALK 800 / 20 JULY 2012
THE PAPERLESS OFFICE
Defining business sustainability By RACHAEL BRECKON The road to becoming the world’s first CEMARS accredited IP law firm has been rich with learning for James & Wells. In fact, it wasn’t until they embarked on the journey they realised they didn’t even properly understand the meaning of sustainable business. “We entered with a very naïve view on what sustainability means,” James & Wells partner Simon Rowell says. The IP firm thought to become sustainable they simply had to improve their “green performance” and make more environmentally minded choices. They learned about involvement in becoming sustainable through education about CEMARS accreditation, and joining the Sustainable Business Network and the Sustainable Business Council. The definition of sustainability has become less about the word green and more about three words beginning with P Profit, People, Planet. “It means achieving a sustainable profit while impacting only positively on staff, our community and minimising our impact on the planet,” Mr Rowell says. “It is not about simply making greener choices for the sake of profit because ultimately if you are not a profitable business you can’t possibly have a positive impact on your staff and community because you won’t have the funds to do it.” Lawyers who want to convince their firm or organisation to become more sustainable need to first make a business case for it, Mr Rowell suggests. Luckily, with the present and predicted price of oil, it is not hard to show longterm benefits for systems that require a decreased reliance on fossil fuel. The first step in making sustainable changes to the office environment is discovering the carbon hot spots. Through this process, James & Wells learnt the firm’s major carbon emissions come from domestic and international travel. So the path to a more environmentally friendly workplace meant the better utilisation of video conferencing.
LAWTALK 800 / 20 JULY 2012
The business argument is not solely limited to cost savings. As an IP firm, a lot of new business is in the clean tech sector and James & Wells’ motivation included the ability to relate to clients on a “deeper level”, Mr Rowell says. “So we could be able to walk their talk, we decided we didn’t want to sit around the edges and do some [sustainable] activities. We wanted to lead this area for our own sector.”
the carbon neutral market space. CEMARS allows companies to measure their greenhouse gas emissions, put in place plans to reduce them and have both of these steps independently certified. Source: www.carbonzero.co.nz/cemars/
Green marketing checklist
The move to sustainability has also been an effective networking strategy for the IP firm.
When making environmental claims for your products and services, you should check the following:
Senior associate Jonathan Lucas says: “Since we started this project, we have made some really good new contacts in the sustainable world, particularly through the Sustainable Business Network to inspire us on this journey and what we hope to achieve.”
Avoid using terms like “safe”, “friendly” and “green” and unqualified pictures or graphics. At best they are unhelpful and encourage scepticism, at worst they are misleading.
Spell out exactly what is beneficial about a product in plain language that consumers can understand.
Link the environmental benefit to a specific part of the product or its production process, such as extraction, transportation, manufacture, use, packaging or disposal.
Make sure any claims you make about your product can be substantiated. Think about how you would answer a query regarding the environmental benefits you are claiming about your product. For example, what scientific authority could you use to justify the basis of your claim?
Explain how a product’s characteristic is beneficial to the environment. For example, explain that a phosphate-free product is less damaging in river systems because phosphate promotes algal growth, which can clog up rivers.
Avoid giving the impression that your product is completely environmentally benign if it is not.
“Those contacts have also been valuable from a business perspective in terms of giving us access to prospective clients in areas that we possibly wouldn’t have any reason to talk to or to target.” Business case aside, CEMARS accreditation and the carbon reduction road doesn’t come without some old fashioned slog and for it to succeed someone (high on the food chain) has to be passionate about the vision. “It is important to have basic passion for the concept and to want to make a difference to the community – whether it be the local community or the business community,” Mr Lucas says.
CEMARS accreditation Certified Emissions Measurement And Reduction Scheme (CEMARS) is essentially the first two steps of carboNZero certification – measure and manage, and have these two steps independently verified then certified. This scheme is developed for large organisations or large emitting industries where offsetting is not a viable option or they wish to take a measured approach and further gauge the cost-benefit of positioning their organisation and products/services in
Source: Commerce Commission Guidelines for Green Marketing (www.comcom.govt.nz/fair-tradingdownloads/). LT
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AM AM C F
Anti Money Laundering and Countering Financing of Terrorism
21 – 23 August 2012 ﺍPullman Hotel, Auckland, New Zealand A critical review of AML/CFT reform - effectively dealing with key implementation challenges in the new regulatory environment WILL E YOU BY? READ
The Anti-Money Laundering and Countering Financing of Terrorism Act (AML/CFT Act) will come into full effect in NZ on 30 June 2013.
HIGH PROFILE SPEAKERS INCLUDE
KEY ISSUES TO BE ADDRESSED Pat O’Sullivan Manager, Financial Intelligence Unit, Financial Crime Group New Zealand Police
Dr Russell Smith Principal Criminologist Australian Institute of Criminology
Kate Reid Manager, Anti-Money Laundering and Countering Financing of Terrorism Department of Internal Affairs
Guy Boyd Head of Compliance, Australia Division ANZ
Toby Fiennes Head of Prudential Supervision Reserve Bank of New Zealand
David Watts Chief Risk Officer Westpac New Zealand
• Hear best practice methodology from AML subject matter experts and institutions • Practical preparation tips – what should your business be doing now? • Benefit from understanding the Australian experience – AML/CFT 6 years on • Understand the consequences of inadequate compliance • Mitigate the risks of your organisation becoming a victim of organised crime • Gather the latest insights into global and domestic financial intelligence
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are ava confer ilable for full ence at tendan ce by AC
AM Memb S ers
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phone NZ +64 9 918 1860 and Australia +61 2 8908 8555 LAWTALK 800 / 20 JULY 2012
PEOPLE IN THE LAW ON THE MOVE
Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. You may also send photos (preferably colour) in hard copy, on disk or by email in JPG format scanned at 300dpi. Items should be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, tel (04) 463 2982, fax (04) 463 2985, email email@example.com. The usual editorial discretion applies.
Jennifer McNamara has joined Hauraki Gulf Law on Waiheke Island. Jennifer ‘s primary focus is commercial law, civil litigation and property law. Jennifer also has experience in industrial relations and human resource management.
few other Chinese dialects such as Cantonese and Foo chow. Her areas of legal interest are commercial, property, business and trusts.
Julie Fowler has been appointed a partner at Simmonds Stewart in Wellington. Julie joined the firm in 2009 after spending many years at an international firm in London. Julie specialises in mergers and acquisitions and tech company investment transactions. Robin Arthur has returned to practise as a barrister sole at Chancery Chambers in Auckland after completing a seven-year term adjudicating employment disputes as a member of the Employment Relations Authority. Robin specialises in workplace investigations and dispute resolution, including strategic advice and advocacy on employment law for employers and employees. Doris Tu has joined Parry Field Lawyers in Christchurch. Doris is fluent in Mandarin and understands a
LAWTALK 800 / 20 JULY 2012
Melanie Sargent has joined Izard Weston as a partner. Melanie specialises in company, commercial and property development. Melanie will practise from both the firm’s Wellington office and its newly opened Palmerston North office. Shonagh Burnhill has joined SB Law in Christchurch as an associate. Shonagh specialises in family, relationship property and employment law.
Josh Orton has been promoted to a partner in the commercial property team of Wynn Williams Lawyers in Christchurch. Josh specialises in retail/ office/industrial development, leasing and commercial property. Lana Paul has been promoted to senior associate in Wynn Williams’s family team. Lana specialises in relationship property, trust and estate litigation and is a youth advocate. She also celebrated 10 years with Wynn
Williams earlier this month. Alannah Shaw has joined the firm as a solicitor in the Christchurch-based insurance team. She will be dealing with all aspects of insurance law including advising on commercial, domestic and earthquake-related insurance claims and related dispute resolution and litigation. Andy Glenie has joined Bell Gully’s litigation team in Auckland as a senior associate. Andy is a commercial litigator with a particular focus on competition and regulatory disputes. He brings local and international experience advising clients in the energy, transport, telecommunications and financial services sectors. After beginning his career at another large Auckland firm, Andy worked in Wellington, Sydney and London. Godfreys Law has appointed Julie Aitken an associate. Julie, who joined the Christchurch firm in June 2011, specialises in property law with particular emphasis on relationship property, residential sales and purchases, subdivisions and, more recently, insurance/EQC issues. In addition Julie has developed an interest in asset protection, trust and assisting small businesses. Buddle Findlay has appointed Simon Jensen as a partner in its Wellington office. Simon is a member of the banking and finance team providing legal and regulatory
PEOPLE IN THE L AW advice to banks and other financial sector organisations. He specialises in payments, prudential regulation, treasury funding, financial markets and clearing and settlement systems. Simon also advises on corporate governance, mergers, acquisitions, joint ventures and corporate restructuring, particularly in the banking and finance sectors. Chen Palmer has appointed three lawyers to its public law team. Eva HartshornSanders has joined as a senior associate. Eva recently returned from the UK where she was a senior legislative and political adviser to the Leader of the Opposition in the House of Lords. Before that, Eva worked as an adviser on legislation and policy, focusing on public and criminal law at the Ministry of Justice. Eva specialises in strategic advice on public policy and legislation reform, and understands the interface between public policy, legislation and politics. Samuel Carpenter has been appointed an intermediate associate. Sam specialises in Waitangi Tribunal and Treaty matters, in public law litigation, and in the interface between public law and commercial issues. Sam previously worked at the Waitangi Tribunal as a research analyst/inquiry facilitator. Kiri Allan has been appointed an associate. Before starting at Chen Palmer, Kiri worked as a judges’ research counsel for the Hawke’s Bay District Court judges. She specialises in advocacy for community organisations both locally and internationally, has experience working with hapu and iwi claimant groups and is particularly interested in indigenous rights and strategic post-settlement development. Resource management specialist Bridget
Irving has been appointed an associate of Dunedin firm Gallaway Cook Allan. Bridget has been with the firm since 2007 and specialises in resource management, environmental law and local government law. Kate Ashcroft has joined Buddle Findlay’s Auckland office as a senior associate in the litigation team. Kate specialises in employment law and her background also includes experience in corporate human resources in Australia. Kate has an interest in and commitment to the not-for-profit sector and is a trustee on the board of Volunteering Auckland.
PEOPLE Principal Family Court Judge Peter Boshier has been appointed a member of the Law Commission for five years, effective from 10 December 2012. Judge Boshier will divide his time between the Law Commission and his work as a District Court Judge. He will join the three current Law Commissioners, Sir Grant Hammond, Professor Geoff McLay and Dr Wayne Mapp. Wellington lawyer Roger Miller has been appointed chair of the new Charities Registration Board. Mr Miller’s specialisations include trust law and governance. A registered trustee, he chairs the Scots College Foundation and the Porirua City Council Community Services Board and is a trustee of the Performing Arts Foundation of New Zealand. Community and Voluntary Sector Minister Jo Goodhew announced the new board she had appointed on 29 June. The other two members of the Board are Wellington lawyer Kirikaiahi Albert and Napier chartered accountant Caren Rangi. Ms Albert has experience in taxation, Treaty settlements and iwi governance. She is active in the Māori legal community, Wellington rugby league and international indigenous networks.
Law firm news Three James & Wells partners have been named among the world’s top intellectual property practitioners. Kate Wilson and Simon Rowell are the only New Zealand-based experts in IAM Strategy 300: the World’s Leading IP Strategists, recently announced by influential magazine Intellectual Asset Management. Ian Finch and Simon Rowell were named in the inaugural sister publication IAM Patent 1000: The World’s Patent Practitioners. MacDonald Pilcher Law Partnership has changed its name to MacDonald Bailey Law. Lizandra Bailey is an associate with MacDonald Bailey Law and is working through the requirements of the New Zealand Law Society to gain approval to practise on her own account.
Legal winners of Fulbright awards Five lawyers and two legal academics have received 2012 Fulbright awards. They were among 26 recipients who were honoured at Fulbright’s annual parliamentary awards ceremony in Wellington. The event, hosted by Minister of Science and Innovation Steven Joyce, took place on 27 June. Francesca Brown from Wellington has received a Fulbright-Ministry of Science and Innovation Graduate Award. Ms Brown will study towards an LLM in law, science and technology, specialising in patent litigation, at Stanford University, California. Currently with Bell Gully, she graduated with a BA and an LLB (Hons) from Canterbury University in 2010. Michael Dobson from Wellington has received a general graduate award. Now working for Chapman Tripp, Mr Dobson will study towards an MA in politics, specialising in environmental political theory, at the New School in New York. Mr Dobson graduated with an LLB in 2009 and a BA (Hons) in 2010 from Otago University.
LAWTALK 800 / 20 JULY 2012
PEOPLE IN THE L AW Alex Latu from Dunedin has received a general graduate award. He will study towards an LLM in administrative and constitutional law at New York University. Until recently a Supreme Court judge’s clerk for Justice Young, Mr Latu graduated with a BA and an LLB (Hons) from Otago University in 2010. Peter Martin from Wellington has received a general graduate award. Peter will study towards an LLM in international law at Georgetown University, Washington DC. Now with the Ministry of Foreign Affairs and Trade, Mr Martin graduated with a BSc and an LLB (Hons) from Otago University in 2006. Wellington barrister David Turner has received a general graduate award. Mr Turner will complete an LLM in human rights and constitutional law at Harvard University, Massachusetts. Mr Turner graduated from Canterbury University with a BA and an LLB (Hons) in 2010.
Otago University Law Professor Andrew Geddis has won a Fulbright New Zealand Scholar Award. This award is for New Zealand academics, artists or professionals to lecture and/or conduct research in the United States for three to five months. Professor Geddis will research the socio-legal history of freedom of expression in New Zealand at Arizona State University in Tempe and the University of California, Los Angeles. Otago University senior lecturer Jacinta Ruru has won a FulbrightNgā Pae o Te Māramatanga Scholar Award. This award is for a New Zealand academic, artist or professional to conduct research and/or lecture in the United States for three to five months in a field of indigenous development. Ms Ruru will research indigenous challenges to Western property law at Lewis & Clark College in Portland, Oregon and Arizona State University in Tempe.
The first two Fulbright-Ngā Pae o te Māramatanga award recipients, Dan Bidois and Natalie Coates, are among the newest Harvard University graduates. Dan (Tainui, Ngāti Maniapoto) was the inaugural recipient of the award in 2010. From Auckland, Dan dropped out of school at 15 years old to work as a supermarket butcher before later completing a BCom and a BA at Auckland University. Natalie (Ngāti Awa, Te Arawa, Tuhoe, Ngāti Hine) was the 2011 recipient. She grew up in Te Teko in the Bay of Plenty and went on to study law and Māori at Otago University. Natalie graduated with a one-year LLM, with a focus on human rights and social justice issues, while Dan completed a two-year Master in Public Policy, specialising in economics and finance. LT
CONTINUING YOUR PROFESSIONAL DEVELOPMENT
AMLCFT Summit The Anti-Money Laundering and Countering Terrorist Finance (AML/CFT) Summit 2012 will be held from 21-23 August at the Pullman Hotel, Auckland. With the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 coming into full effect on 30 June 2013, the question is “will you be ready?” conference organisers ask. The summit will address a series of key issues, including: •
best practice methodology from AML subject matter experts and institutions;
practical preparation tips – what your business should be doing now;
understanding the consequences of inadequate compliance;
mitigating the risks of your organisation becoming a victim of organised crime; and
solutions to these challenges. Another benefit is the opportunity to participate in high-level discussions regarding global financial intelligence, AML/CFT activity and initiatives A third benefit is the opportunity to ask questions, raise concerns and contribute to high level debate with some of New Zealand’s most influential decision-makers in the finance industry. A one-day post-conference workshop will be held on 23 August. This workshop will provide participants with a portfolio of useful tools and techniques to gauge the readiness of their AML/CFT programme. The workshop will cover: •
the latest insights into global and domestic financial intelligence.
A series of benefits will accrue for those attending. One is that the summit will provide an understanding of the implementation challenges faced due to AML/CFT legislation, and it will uncover practical
LAWTALK 800 / 20 JULY 2012
AML/CFT Risk Assessment Methodologies – why your ML/FT risk assessment is critical to your AML/CFT programme and what’s appropriate for your organisation; benchmarking your AML/CFT programme – what approaches should you be using to identify any remaining deficiencies in your programme and how do you assess whether or not your programme is in line with industry best practice; and compliance monitoring – what should you put in place to ensure
your AML/CFT programme is working. For more information and to register see http://acevents.com.au/ amlcft2012/.
After Death - claims against estates How to assist clients facing claims after the death of a family member is the focus of an upcoming NZLS CLE webinar. Entitled After Death - claims against estates, the webinar will take place on 8 August and will be presented by Greg Kelly and Jacinda Rennie. Money brings out the worst in some people and claims made after death can tear families apart. This webinar will discuss the various claims that can be made against estates and consider advice that can be given to claimants, beneficiaries and estate trustees. The areas covered will include family protection, testamentary promises and relationship property claims as well as how to document agreements that have been reached. See http://www. lawyerseducation.co.nz/shop/ Live+Webinars+2012/After+Death++claims+against+estates. LT
PEOPLE IN THE L AW
The art of juggling By HANNAH GRANT Mother of two, Plunket New Zealand board member and practising solicitor, Andrée Talbot admits she juggles furiously. “It’s a hard balancing act. There are points of conflict now and again but that’s true of every working mum. You try to juggle everybody’s needs as best you can,” she says. It wasn’t always this way. Mrs Talbot spent the first five years of her legal career at Buddle Findlay, but as she approached the end of her maternity leave for her first child, she made the decision not to return. “My intention was to go back to work, but you don’t really know how you are going to feel about being a mum until it happens. Everyone has to figure that out for themselves.” Mrs Talbot now has two children, a 17-year-old daughter and 14-year-old son, but making the decision not to return to work was a hard one. “People need to accept that there isn’t a right answer or a right way to run your career; you have to go with your gut instinct. I think there is an internal pressure for women to be perfect and right 100% of the time. “There is a great sense of loss when you go from being a very busy working person to being a mum. You have an identity that is linked to your career where there is recognition of your worth as a result of your qualifications and experience. This means nothing when you walk into this new lifestyle,” she says. It was feeling isolated in this new environment that led Mrs Talbot to become so involved in Plunket. In fact, she had only been out of hospital four days after having her first child when she was contacted by Plunket. “When working full-time you know other people on Queen Street or other lawyers but you never really get to
know your local community. “Plunket was great in enabling me to make those networks of connections in my community who are at a similar life phase to your own, which is so essential when you are at home,” she says. Mrs Talbot was so appreciative of the service she received from Plunket, she decided to give back. Voluntarily, she began organising coffee groups and soon joined Plunket’s committee. She is now a member of Plunket’s national board and was elected VicePresident of the organisation last November. “After beginning to volunteer, I realised there were opportunities to give more at Plunket at different levels. With my background in law, my skills were useful because I was good in meetings, fundraising and organising people. I had no difficulty reading legal documents for them, negotiating ground leases and looking after any compliance issues.” Mrs Talbot also travels around the country in an attempt to continue the strong connection with mothers and Plunket volunteers at a grass roots level. “We try and get people at this level to seed their fundraising ideas, discuss their concerns and what they see as the upcoming issues. This is a great opportunity for mums to have their issues heard and can build an incredible lobbying base with the Government,” she says. Four years ago Mrs Talbot returned to
practise law at Takapuna’s Simpson Western. Returning to the field after such a significant break was a little daunting, she explains. “It was pretty scary to start with. It’s a long time to be out of practice. The law had changed so much since I left so I needed to build up my confidence.” She says her firm has given her enormous support in returning and encouraged her to keep up the volunteer work. She now works four days at Simpson Western and the other is dedicated to Plunket. “If you go back to work after a certain amount of time, don’t be afraid to ask for help and admit when you don’t know things,” she says. Encouraging also, Mrs Talbot explains, is the growing trend to work in a team within firms. “People have come to realise that it’s more beneficial to work in teams and clients have come to expect that more than one person will be working with them to look after their best interests. “We have a practice of ensuring that there will always be more than one person familiar with a file so that if anyone had to rush off, there is always someone able to cover bases,” she says. As society is now more time poor than ever, Plunket has started catering towards project volunteering, meaning people do not have to lock themselves in for an overwhelming period of time. Plunket has also reorganised its volunteering structure so people can come in at different levels and contribute based on their experiences. LT
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LAWTALK 800 / 20 JULY 2012
FROM THE COURTS The Dotcom Saga: Lessons for Police and lawyers By Marcelo Rodriguez Ferrere* A recent judgment from Chief High Court judge Justice Winkelmann (Dotcom v Attorney-General  NZHC 1494) has made for sobering reading for the New Zealand Police and how they should apply for and execute search warrants when acting on behalf of foreign counterparts.
The saga so far Kim Dotcom (né Schmitz) founded the Hong Kong-based company Megaupload Ltd in 2005, and operated megaupload.com, a website that offered a file storage and transfer service. Such was the success of megaupload.com that, at its peak, it alone constituted 4% of the world’s internet traffic. This caught the eye of the United States’ Department of Justice (DoJ) and Federal Bureau of Investigation (FBI), who on 5 January 2012 charged Megaupload, Dotcom and some of his colleagues with “running an international organised criminal enterprise allegedly responsible for massive worldwide online piracy of numerous types of copyrighted works”. The FBI dubbed this the “megaconspiracy”. As Dotcom had lived in New Zealand since 2010, the DoJ and the FBI formally sought the assistance of
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the New Zealand Police in arresting Dotcom and seizing “all evidence, fruits and instrumentalities of the crime being investigated” from his New Zealand residence. The Deputy Solicitor-General authorised the Police to apply for the necessary warrants pursuant to ss43 and 44 of the the Mutual Assistance in Criminal Matters Act 1992 (MACMA). These were issued by the District Court on 19 January. The next day helicopters and armed police descended onto Dotcom’s property, arrested him and his colleagues and seized an estimated 150 terabytes (or 153,600 gigabytes) of electronic information. Dotcom was remanded in custody until 22 February, when he was granted bail. The United States formally requested extradition of Dotcom on 5 March, with a hearing recently scheduled for March next year. With regards to that hearing, Crown counsel have applied for judicial review of a District Court decision allowing disclosure of the FBI evidence against Dotcom for the purposes of his extradition. A decision on this review is currently pending. Meanwhile, Dotcom’s United Statesbased counsel set about challenging the validity of the charges laid, and his New Zealand counsel applied
for judicial review of the issue of the search warrants, which led to Justice Winkelmann’s 28 June judgment.
Review application Dotcom and his three co-plaintiffs sought review of the warrants on the grounds that, among other things, they were “unreasonably broad” and lacked specificity as to which charges they related to and the items that Police ought to search for. In her decision, Justice Winkelmann acknowledged that the MACMA was based on a principle of international comity and reciprocal assistance. That said, however: “The obligations of cross-border co-operation do not, of course, require a hands-off approach from the courts, and the MACMA regime only contemplates the provision of assistance permitted by our domestic laws”. New Zealand’s domestic law does not permit a general warrant, and the MACMA itself, in s45(4)(b), requires the warrant to stipulate the particular offence to which it relates. Justice Winkelmann held that the Police must frame search warrants “with as specificity as the context permits.” The offence contained within the warrants simply mentioned “Breach of Copy
FROM THE COURTS Right and Money Laundering” without specifying the method of the alleged breach or the United States’ statutory provision that contained the offence, and on this basis, Justice Winkelmann held that the warrants were of a general form and thus invalid. This made the Police’s search and seizure illegal. Justice Winkelmann agreed with the plaintiffs’ submissions that the scope of the authority for search and seizure – as defined by the items listed in the appendix to the warrants – was too broad. One item in particular was listed as: “All records and things in whatever form, including communications, relating to the activities of the Mega Conspiracy, including but not limited to, Megaupload, Megavideo and Megastuff Ltd.” However, without an accompanying definition of “Mega Conspiracy”, Justice Winkelmann held that “it is hard to imagine what falls in this category”. This obscurity, combined with the broadness of the categories, meant that the warrants impermissibly captured both material relevant and irrelevant to the inquiry. Assuming the warrants were valid, the Police ought to have conducted a preliminary sorting exercise for relevance on the premises – even if that required collaboration with the FBI. The Police should have then conducted a more thorough off-site sorting exercise, promptly returning to the owners that material deemed irrelevant. That they did not meant that, in fact, the Police unlawfully seized material irrelevant to the inquiry. Justice Winkelmann went on to hold that the Police acted unlawfully in transferring the electronic information to the FBI in the United States: contrary to the terms of s49(2) of the MACMA, which required the Commissioner of Police to hold custody over it pending further direction. However, the court was unable to rule on whether such a breach was technical due to the incomplete and confusing narrative.
Lessons for Police: lessons for lawyers Justice Winkelmann heard counsel on the appropriate remedies for the illegal search and seizure on 4 July, and a decision is pending. Regardless, however, the lessons for Police are already clear. Any willingness by New Zealand authorities to assist
their foreign counterparts with their inquiries must be tempered by the requirements of New Zealand domestic law. The court was unsympathetic to arguments by Police that they were unable and not requested to assess the information for relevance: operational imperatives and difficulties cannot expand the scope of their authority. Justice Winkelmann makes numerous references to the importance of FBI involvement in the search and seizure. More thorough liaison with that organisation may have allowed the Police to frame its warrants in accordance with the MACMA regime.
This judgment was a straightforward application of recent appellate authority relating to the application for and execution of search warrants, where the required thoroughness and specificity of the warrants was found wanting. Although this is just one step of many in the Dotcom saga, the Police must realise that the next time the FBI calls, their watchword must be: “more haste, less speed”. *Marcelo Rodriguez Ferrere is a visiting lecturer at Otago University. He recently completed his LLM at the University of Toronto, and has previously worked for Chapman Tripp in Wellington. LT
‘No parole’ for juveniles forbidden ‘The United States Supreme Court has ruled that life in prison without possibility of parole for juvenile homicide offenders is forbidden by the Eighth Amendment. The court heard two cases in tandem: Miller v Alabama (567 US (2012)) and Jackson v Hobbs. The cases are about two 14-year-olds convicted of murder and sentenced to life imprisonment without parole. The Eighth Amendment’s prohibition of cruel and unusual punishment “guarantees individuals the right not to be subjected to excessive sanctions,” the judgment says. That right “flows from the basic ‘precept of justice that punishment for crime should be graduated and proportioned’” to both the offender and the offence. “Juveniles are categorically different than adults,” the court said, “because they have not reached the stage of development at which a definitive judgment can reliably or fairly be made that their incorrigibility or degree of culpability warrants their permanent, irrevocable expulsion from society.
“For Evan Miller and Kuntrell Jackson were sentenced to life without parole as a mandatory consequence of their convictions for murder, with no consideration of their individual crimes, characters, life circumstances, or even of their young age,” the court said. The New Zealand Law Society joined Amnesty International and others in an amicus brief urging the Supreme Court “to consider international law and opinion … when applying the Eighth Amendment’s clause prohibiting cruel and unusual punishments.” The court’s decision is at www.supremecourt.gov/ opinions/11pdf/10-9646g2i8. pdf and the amicus brief the Law Society joined is at www.lawsociety. org.nz/__data/assets/pdf_ file/0011/53687/Amicus_brief,_ Amnesty_International_et_ al,_16_January_2012.pdf. LT
“That is not, however, the factual or constitutional worst of it.
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Providing a top defence service Two words kept cropping up when LawTalk talked to Public Defence Service (PDS) director Brendan Horsley this month. They were the words “top notch”. The aim of the still expanding PDS, he says, is to provide a “top-notch” defence service. “We have a vision of achieving that difficult balance between quality and cost-efficiency. “My personal vision for the PDS is that it not only provides those sorts of services to its clients, but also becomes a training ground for new members into the criminal bar – that we are seen as a viable and exciting job option for young lawyers and for senior lawyers also, who are looking to work with a group of motivated lawyers to train these young lawyers … and to really contribute to the continued excellence of the criminal bar.” One aspiration is that the PDS “is seen as an employer of choice for all manner of criminal lawyers, but in particular those junior and intermediate lawyers coming into the criminal practice world.” Another is that “externally we are recognised as providing a top notch service to defendants, to our clients, that nobody thinks they have been short-changed because they’ve been assigned to the PDS and that, if anything, people are choosing the PDS as their lawyer of choice. “I think that would be a real measure of success. “I also think we have a role to play across the justice sector. I think we can commit ourselves to being professionally excellent and that has natural flow-on effects not just for our clients, but also for the efficient running of courts, the efficient running of the duty solicitor scheme. “Also, we can provide a lot of input into criminal policy development. “We will be an organisation of experienced people with good, practical knowledge and I think that that knowledge can be tapped into by law commissions, policy developers and all sorts of interested people. “Certainly there are opportunities for the PDS to feed back in
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LAWTALK 800 / 20 JULY 2012
Public Defence Service Director Brendan Horsley (centre) with Northern Public Defender Jonathan Down (left) and Southern Public Defender Sandy Baigent.
a coherent way what will be a lot of empirical data about cases that have come before them. We’re picking up 10-15,000 cases a year. We see a lot of people and I think that that’s a valuable single store of information,” he says. “I think that as we grow up and become a more established and sophisticated service, people more and more will be able to ask us questions about how things work and equally we will develop into an organisation that will feed back in when we identify problems. “When we see things not working for the best across the sector, there’s no reason why we shouldn’t be feeding that back into the relevant policy makers, into law review, and providing a really top-notch service back into that. “It’s about having the best possible justice system that you can and doing the best by your clients and the best by New Zealanders as well. Hopefully, what comes out at the end is a better deal for everybody.” That, however, is for the future. Right now, Mr Horsley sees the PDS as offering a “great training ground for young lawyers” and another option for smart, young lawyers outside of going to a Crown prosecution firm or practising as a barrister. “One of the critical things that is the difference between young lawyers with the PDS and younger barristers going out by themselves, for instance, is that the PDS lawyers have a support network of senior lawyers around them. And they have their own peers as well. “When we have an issue that is a little bit out of the ordinary or difficult, we have a lot of senior people who are available to provide advice, and not just advice within the particular office that they come from, advice from anywhere throughout the country.” Mr Horsley gives two examples. Tauranga deputy public defender Rob Stevens, formerly from Wellington, has particular expertise in search and seizure. And Mr Horsley himself has nearly 10 years of appellate experience in both the Court of Appeal and the Supreme Court. The PDS, then, is providing a “very facilitative, consultative approach to practising law – one that recognises that you’re
not an island, that everybody is together in this and you share ideas. And it makes us a much more effective whole,” he says. “As we’re getting bigger and bigger, I think you’ll find that sort of economy of scale, that knowledge base, only gets bigger and it’s a very effective tool for ensuring that difficult and novel issues are dealt with at the level of expertise and experience you can expect.” Speaking of getting bigger and bigger, the PDS is going through a “pretty dramatic explosion, both geographically and in terms of building up our case load”. What began as an initial pilot in Auckland city in 2004 proved so successful it was expanded in 2008 to the greater Auckland area. Cabinet was so pleased with the results that it decided to expand the PDS to the most heavily used courts throughout New Zealand. That expansion has been happening for two years now. Since June 2010, total PDS staff has risen from around 50 to 147 by July 1. In that time, the number of lawyers has increased three-fold, from around 40 to 120. In the northern area, the PDS covers courts in Auckland, Manukau, Waitakere, North Shore, Hamilton and Tauranga, led by Northern Public Defender Jonathan Down. The Southern Public Defender, Sandy Baigent, is responsible for Hawkes Bay, incorporating Napier and Hastings, Wellington and Dunedin. An office has yet to be established in Christchurch. Mr Horsley acknowledges that the expansion of the PDS has led to some anxiety within the criminal bar. However he does not see the scenario as an “us and them situation”. “We are criminal defence lawyers. We are members of the Law Society and we have the same sorts of concerns about big issues that other lawyers will have. “We’re keen to see the best possible legal aid system as well. I certainly appreciate that there has been, over the last year and a half, maybe a little longer, a massive change in legal aid. We’ve had the advent of fixed fees. We’ve had the expansion of the PDS, all of which has had an effect on the private bar and I can certainly understand that the private bar is active and is talking about these issues. “I also think that the relationship between the PDS and the private bar is a lot better and a lot stronger than perhaps it has been portrayed in the media.
the debate. The PDS was, perhaps, an obvious target for concerns to be expressed about legal aid reform, but actually I think what you’ve seen is that the PDS has responded very professionally. “Personally, I think that we have actually now got very good relationships with the private bar and with the various institutions that represent the private bar, including the New Zealand Bar Association, the Law Society and the Criminal Bar Association.” The PDS is, in fact, a corporate member of the New Zealand Bar Association and its lawyers are members of the New Zealand Law Society. “We are very supportive of the Law Society,” he says. “We are very keen to not be an insular organisation. We encourage our people to deliver seminars, to be involved in professional training. “We have a number of staff who are involved as faculty members of the [NZLS CLE] Litigation Skills Course. We host training and we present seminars on criminal matters. We work with NZLS CLE and that is something we are looking to expand as well. “We have got a lot to offer the private bar and I think people are beginning to recognise that and they are seeing that we’re doing a good job,” Mr Horsley says. “I think it is an exciting future.”
Director of the Public Defence Service Brendan Horsley came to the role in August 2011 with more than 20 years’ experience in criminal, civil and commercial law. The vast majority of his career has been as a prosecutor. For almost a decade before joining the PDS, Mr Horsley was with the Crown Law Office. All that service was in the criminal law team, as a team leader over the latter few years. Before that, he spent nearly three years in competition and regulatory work with the Commerce Commission. Mr Horsley began his legal career as a criminal defence lawyer with Bernard Bull in Gisborne. He moved from there to Gisborne firm Woodward Iles (now Woodward Crisp), which was then the Crown prosecutor, before coming to Wellington. LT
“We are very supportive of a strong criminal bar. “We are keen to have initiatives such as joint training. We have a real advantage with training because of our numbers. We can easily get links to external people to speak to us about topical issues and one of the things we are trying to initiate is sharing these seminars and that type of training with the private bar. “So I see us as having a mutual respect and a very supportive relationship. I think that the private bar would now acknowledge that the PDS is the best place to receive a good training in criminal law. “I think we provide a different opportunity, particularly for the younger ones coming through. We provide some real opportunities that I don’t think the private bar can offer. “I’d like to think that some of the emotion’s gone out of
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LAWTALK 800 / 20 JULY 2012
LawTalk reaches another major milestone with this issue. The New Zealand Law Society journal that was started in 1974 now numbers 800 issues.
The magazine has a pre-history, too. Before issue one appeared, there were two newsletters simply entitled The New Zealand Law Society’s News Sheet. The first was dated February 1974 and the unnamed editor asked readers to suggest a name for the publication. “Titles already suggested include Legal News, the New Zealand Barrister and Solicitor, the New Zealand Law Practitioner and Moot,” the editor wrote. “We don’t like any of them much. Can you suggest a better one?” The call was repeated in the second issue, along with suggestions already made, including Law talk. Then came the third issue, the first one entitled LawTalk. The first issue led with a story about the new Law Society Executive Committee (now the Law Society Board) meeting for the first time. The then President, Guy Smith, said that the new Executive Committee should take much greater responsibility for Law Society affairs than the Standing Committee it had replaced. Mr Guy featured in issue two. It led with a story featuring tributes made during a special sitting of the Supreme Court to mark Mr Guy’s sudden death. He had only been introduced to the profession two issues earlier, the second issue of The New Zealand Law Society’s News Sheet, which led with a story about him taking office. For the record, the first issue of The New Zealand Law Society’s News Sheet led with a story which was critical of the Labour government’s national superannuation scheme, saying the government was “moving much too quickly”. The aims of the new journal were spelled out in LawTalk issue 1. “Our aim: to provide you with news about law and lawyers, practice and practitioners, society and the societies.” In
LAWTALK 800 / 20 JULY 2012
The aims of the new journal were spelled out in LawTalk issue 1.
“Our aim: to provide you with news about law and lawyers, practice and practitioners, society and the societies.” 1974 there were, of course, district law societies around New Zealand. Some of the early issues of LawTalk were small, especially by today’s standards of mainly 36-page issues. A number of them were just two pages long, despite carrying advertising. By issue 50, the magazine had settled into a four-page magazine. That issue featured the admission of Mark Treffers, who also featured in the first news sheet in 1974 as the winner of two Commonwealth Games swimming medals. He won a gold medal in the 400m individual medley (although that issue called the “medley” a “relay”) and a silver medal in the 1500m freestyle. Mr Treffers now works for Minter Ellison as a partner in the Australian Capital Territory. Issue 100, dated 31 August 1979, was a six-page publication. It reported on the proposed restructuring of New Zealand’s court system, replacing the Magistrates’ Courts with the District Courts, the then Supreme Court with the High Court and introducing a Family Court. By issue 200, dated 1 August 1984, the layout style had altered to feature individual stories. LawTalk 200 ran display advertisements and had a bigger classified section. Around that time, the magazine was in the eight- to 12-page range. By the end of 1984, the journal had introduced some colour pages. Issue 300, dated 9 March 1989, led with a story featuring the swearing in of the new Chief Justice, Sir Thomas Eichelbaum. A big milestone was passed on 22 June 1998 with issue 500. Perhaps because it was a landmark issue, it numbered 46 pages, in contrast with issue 499 at 24 pages and issue 501 at 28 pages. Understandably, the first story in that issue was entitled “LawTalk: Looking back 24 years on”. Written by the then Managing Editor Sue Ewart, it traced the history of the magazine to date. And, as Ms Ewart wrote as the last sentence of that story, “ideas
for improvements are always welcome.” Landonline was the focus of the lead story in issue 600. Dated 31 March 2003, the story announced the national implementation of Landonline stage two, which enabled electronic lodgement of routine title dealings. Issue 600 also included the Law Society’s annual report for 2002. “Legal aid battle continues” was the lead story in issue 700, 3 December 2007. The story outlined the Law Society’s continuing push for higher rates of remuneration for legal aid providers. Issue 700 also announced that Christine Grice had been appointed acting Executive Director of the Law Society. Now the Society’s Executive Director, Ms Grice is a former Law Society President. LawTalk’s aims have changed over the years. The latest change began last year, when we began running more features and less news about the law. That reflected the fact that many of the stories LawTalk used to run were not as readily accessible as they are today. As the internet has developed, many of these stories are now readily accessible using that medium, reducing the value of printing them in the Law Society’s journal. The change continued into this year, when we implemented further enhancements, including a redesign of the magazine. The key objectives of the changes we implemented are: •
to make LawTalk more tuned to the information needs of someone practising law by providing more practical and technical information and to recognise the availability of news through sources such as LawPoints, my.lawsociety and other widely-distributed sources;
to provide more information about the role and activities of the Law Society; and
to assist the Law Society to meet its objectives as regulator of the legal profession. LT
LAWTALK 800 / 20 JULY 2012
THE BOOKSHELF • Commercial Legislation, Third Edition • Company Law Statutes, Ninth Edition • Crimes Act 1961, Sixteenth Edition • District Court Rules 2009 • Employment Legislation • Evidence Code • Family Law Legislation, Fourteenth Edition • Financial Adviser’s Legislation • Immigration Legislation • New Zealand Intellectual Property Materials • Property Law Statutes, Sixth Edition • Relationship Property Legislation, Third Edition
Resource Management Legislation
Other titles in the Butterworths Legislation Series include:
• Securities Legislation
• Vernon Rive (ed) Resource Management Bulletin Environmental and Resource Management Law (looseleaf ed) Butterworths Legislation series
BUTTERWORTHS RESOURCE MANAGEMENT LEGISLATION, 4TH EDITION
RML Resource Management Legislation
The legislation has been consolidated as at 1 May 2012 and the book includes the Resource Management Act 1991, Subparts 1 and 5 from Part 8 of the Local Government Act 2002, Parts 2, 5 and 6 of the Local Government (Auckland Council) Act 2009, and the Environmental Protection Authority Act 2011. (LexisNexis, June 2012, 9781-927183-31-1, 550 pages, paperback, $74.74 (GST incl, p&h excl). Butterworths Legislation series
21/05/12 4:37 PM
KENNEDYGRANT ON CONSTRUCTION LAW, 2ND EDITION By Tomas KennedyGrant QC Reviewed by John Green* This book is a truly impressive publication in every respect. It comprises 958 pages. The text is set out in 31 chapters. The full table of contents runs to 40 pages and there is a summary of contents for ease of reference. The author’s helpful introduction sets out the scope and structure of the book and the introductory remarks put the component parts of the text in perspective. This is the second edition of the work first published in 1999. Although the basic structure of the book remains unchanged, this new edition is, in large measure, a comprehensive new text. The first edition has been extensively rewritten and the coverage of New Zealand law substantially updated and widened. In addition, there is a greater international focus with coverage of the recent suite of International Federation of Consulting Engineers (FIDIC) contracts, as well as the current New Zealand conditions of contract
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and engagement, and more extensive reference to authorities in other common law jurisdictions. The section of the book dealing with dispute resolution (Part IX) has been substantially expanded and updated to reflect the significant changes and developments in contractual and statutory dispute resolution since the first edition was published. In express recognition of the fact that construction law is not a selfcontained system of law, the author has placed the law relating to building and construction in New Zealand, from acquisition of land to completion of projects, in the wider context and framework of the general law. The author has endeavoured to state the law as at 31 December 2011. There is a general consideration of the basic principles of contract law and the general law of torts as it applies to those involved in the construction field, in particular, the torts of trespass, private nuisance and negligence. There is substantial coverage of the relevant regulatory statutes and controls and the impact of the tort of negligence on construction law is examined, although not in any substantial depth. That is not a criticism. The subject has significant relevance (in light of the leaky building crisis) as the courts have sought to define where duties of care exist and by whom and to whom they are owed. However, so narrow and extensive is the topic, that it is more properly the subject of a singular text and any more extensive coverage would have distracted from the broad scope and clear focus of this work.
is comprehensive. It provides detailed treatment of the major issues arising out of construction and engineering projects with extensive references to standard forms, statutes, regulations, case law and legal commentary. The work is divided into 9 Parts. Part 1 provides an introduction to the rest of the book, Part 2 places construction law in the wider context of the general law, Part 3 outlines the statutory controls that exist in New Zealand, Parts 4-7 discuss contracts for professional services, construction contracts, subcontracts and supply contracts, Part 8 examines the impact of the tort of negligence on construction law and Part 9 describes the procedures available for the disposal of claims and disputes arising out of, or in connection with the construction process. The book is logically structured, written with clarity, and geared to the needs of contractors, construction professionals and lawyers. The index is detailed and easy to use. The tables of cases and statutes are comprehensive and case and legislation citations are clear and easy to find. The international relevance and place of New Zealand construction law is evidenced by the numerous crossreferences to authorities in Australia, Canada, England and Wales, and Singapore, which are clearly signalled in the text of the footnotes. The footnotes are extensive and enable further research when necessary. This work is truly indispensable. It is already a standard work of reference, and the author is to be congratulated.
Central to the book’s purpose is the comprehensive examination of the four broad types of contract involved in building and construction projects: contracts for professional services, construction contracts, sub-contracts and supply contracts.
Kennedy-Grant on Construction Law, 2nd edition by Tomas Kennedy-Grant, LexisNexis, April 2012, 978-0-408717-86-1, 958 pages, $184 (GST incl, p&h excl). Available in paperback and e-book.
This is where the real value of the text lies and demonstrates the importance of this work. The coverage
* John Green is a chartered arbitrator, adjudicator, mediator and Director of the Building Disputes Tribunal.
THE BOOKSHELF ENVIRONMENTAL AND RESOURCE MANAGEMENT LAW, 4TH EDITION Editor-in-chief Derek Nolan Reviewed by Catherine Iorns Magallanes* The third edition of Environmental and Resource Management Law was published in 2005 and has been well regarded as the authoritative text on the area and well used as a practitioners’ handbook. Since then, an online edition was published in 2008 which included two new chapters (on Climate Change and on Landscape and Visual effects) as well as more general updating. Yet in the last few years, significant changes have been made to New Zealand’s environmental laws and agencies such that even the 2008 edition was becoming outdated for the purpose of a practitioners’ reference book. This fourth edition was published in 2011, with laws current to mid-2011, in order to update the text in response to these various changes. The authors of the different chapters are nearly all private practitioners who had sole or joint responsibility for one chapter each; the exception is Auckland University’s Dr Kenneth Palmer who was responsible for four chapters. The structure of the third edition has been kept, as well as the two new chapters from the 2008 online edition, plus the entire text has been updated. New laws covered include the Resource Management (Simplifying and Streamlining) Amendment Act 2009, the Marine and Coastal Area (Takutai Moana) Act 2011, and the Environmental Protection Authority Act 2011. New initiatives discussed include the Environmental Protection Authority (albeit briefly, due to its being so new) and the Emissions Trading Scheme and Registry. The stated purpose of the book is to serve primarily legal and other environmental and resource management practitioners. The previous editions have done this well and this fourth edition continues to do the same. Firstly, and perhaps most importantly, the coverage is comprehensive. Secondly, the statements of the legal position are written clearly
and succinctly. This is presumably quite an achievement for the editor, with responsibility for oversight of so many different authors and thus different writing styles and approaches to the topics. Thirdly, the relevant New Zealand law is well summarised – legislation and case law – and references to the detail in sections or cases are footnoted, as are further references such as to academic literature. Where relevant, international instruments are covered and/or scientific background information is provided. While it is probably too comprehensive to be prescribed for many environmental law courses at university, I can attest to its use by students both for introductory background to topics as well as for their more detailed research papers, thereby fulfilling the authors’ “hope” that it be of use to students. In terms of structure, it is divided into sensible chapters and then much smaller sections within each chapter. This smaller size of the different sections makes it easy to navigate – even to skim – in order to pin-point what you need. One feature of the fourth edition that makes it significantly more userfriendly than the third edition is a new layout, including much larger section headings and page numbers. With more than 1,300 pages of substantive text, one uses this book via its table of contents or index and thus via looking up chapter, section or page numbers. Indeed, the previous edition’s table of contents only references section numbers, not pages of the book, so small section numbers and headings made searching slower than it needed to be. While the index of the fourth edition still refers only to section numbers, the table of contents refers to both. Overall, the new layout makes searching the text faster, as well as making it quicker to skim through looking for related material. I note that there is not much for those who prefer visual aids such as diagrams: I recall only one table and one diagram in the 1,300 pages. One thing the editor might like to consider for the next edition is the way that the book reflects almost too well New Zealand’s legislative focus with land-based environmental protection. Thus, while there is a large chapter on the coastal environment (102pp) and
a chapter on marine pollution (70pp), these topics are approached more from the land-based Resource Management Act perspective. The section on “Other legislation affecting coastal management” includes discussion of the Marine Reserves Act and the 2002 Bill, but does not include the Marine Mammals Protection Act, for example, and the brief reference to the Fisheries Act only refers to the interface between the Fisheries Act and the RMA. In contrast, the protection of dolphins, sea lions and whales has been topical in New Zealand for a number of years and has been the subject of litigation (eg, in relation to the squid fishery “by-catch”) as well as legislative and other measures (such as in relation to set-netting bans). It would be nice to see this concern addressed and to see as much attention paid in this text to the protection of marine fauna as is paid to marine pollution, for example; even if this would mean bridging the divide and addressing environmental protection aspects of the Fisheries Act, for example. Hopefully the new EEZ legislation and perhaps the Marine Reserves Bill will encourage more attention to this neglected area, which can be reflected in the next edition. Environmental and Resource Management Law, 4th edition edited by Derek Nolan, LexisNexis, October 2011, 978-1927149-20-1, 1,348 pages, $195.50 (GST incl, p&h excl). Available in paperback and e-book. * Catherine Iorns Magallanes is a senior lecturer in law at Victoria University of Wellington.
Charity Law in New Zealand to be published as free e-book Probably appropriately, a book on New Zealand charity law is to be published as an e-book which is free of charge. Information contained in the Charities Commission’s last newsletter before it was absorbed into the Department of Internal Affairs advised that the book is being written by Dr Donald Poirier, a senior member of the registration team. It will soon be published on www.charities.govt. nz in a range of formats, suitable for reading on-screen or downloading to an e-book reader. LT
LAWTALK 800 / 20 JULY 2012
PROPERTY LAW SECTION NEW ZEALAND LAW SOCIETY
NZLS EST 1869
NZLS Property Transactions and E-Dealing Practice Guidelines
www.lawyerseducation.co.nz. The new guidelines reflect recommended practice for residential property transactions and e-dealings. Part 2 of the guidelines, on e-dealing, is endorsed by the RegistrarGeneral of Land for recommendation to lawyers using Landonline. The guidelines replace the NZLS Property Transactions Practice Guidelines published in September 2009 and the NZLS E-Dealing Guidelines published in October 2008.
The new NZLS Property Transactions and E-Dealing Practice Guidelines came into force on 9 July, to coincide with the introduction of the revised ADLSi/REINZ Agreement for Sale and Purchase (9th edition).
The guidelines relating to payment will not have the force of contract where clients have contracted using the 8th edition of the agreement. When advising clients before the agreement is signed, ensure the latest version of the agreement is used.
Property Law Section members can access the guidelines through the PLS website at www.propertylawyers.org. nz/members.guidelines. They are available to non-PLS members on request from firstname.lastname@example.org.
The ADLSi 9th edition agreement is available in hard copy and WebForms and a marked up version of the form is available on the ADLSi website www.adls.org.nz. LT
For the first time, the guidelines relating to payment – under the Same Day Cleared Payments System – will be given the force of contract in the 9th edition of the ADLSi/REINZ Agreement for Sale and Purchase. An overview of these new guidelines relating to payment as well as other changes, some banking FAQs, and useful LINZ compliance review watchpoints will be discussed during an upcoming NZLS CLE-Property Law Section webinar on 31 July. For more information, and to register, please visit
Registry As at 6 July 2012, the following lawyers who offer services directly to the public had neither renewed their practising certificate when it expired on 30 June 2012 nor advised the Law Society that they were ceasing practice.
Auckland Branch CANNON Gaylyn Joy COETZEE Albertus GEDDES John McKail HARE Graham Charles JACKSON Christopher Robert KEATING Mark Robert Campbell MERCER Anthony Gerald POME’E Maria Ilaisaane Valu SALTER Briton Trevor THOMAS Anthony Ross TURNER Robin Anne WALLIS Richard Digby
Canterbury-Westland Branch LILLIE Stuart Arthur Campbell Manawatu Branch HOOGENDYK Hendrika Cornelia JOHNSON Talbot Wayne Otago Branch ROSS Fiona Anne Waikato Bay of Plenty Branch JOHNSON Larry Harold JOHNSTON Bruce Alexander PATEL Mahendra Bhai Wellington Branch CLARKSON Catherine Marjorie OKKERSE Michael John Stock
If these people subsequently apply for and are issued with a practising certificate, their names will be restored to the register of lawyers (accessible from the home page of www.lawsociety.org. nz). The new certificate would then be effective only from the date of issue and not from the date at which their previous certificate expired. Lisa Attrill, Registry Manager Email: email@example.com, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989
LAWTALK 800 / 20 JULY 2012
Family and ACC legal aid fixed fees By Michele M cCreadie, Director Legal Aid Services Fixed fees for most family legal aid cases and ACC legal aid cases commence on 23 July. An information pack for family and ACC legal aid lawyers is now available on the Ministry of Justice website under information for legal aid providers/manuals. This contains the provider information packs which include links to the new fixed fee schedules and forms (invoices and amendment to grant).
What are fixed fees? Fixed fees are a new method of payment for legal aid lawyers. Instead of receiving an hourly rate, lawyers will be paid fixed amounts for completing specified activities. The activities and associated fixed fees appear in the family and ACC fixed fee schedules.
What is changing? For applications received after 23 July, which are approved to be managed on a fixed fee basis, we will be paying legal aid lawyers for the completion of the relevant activities associated with the case. If the fixed fee is inadequate due to the complexity of the case, you can submit an “amendment to grant” application form. We will consider the request using the amendment criteria and, if approved, will manage the case as Fixed Fee Plus.
New fixed fee forms New invoice and amendment to grant forms have been developed for fixed fee cases. There are two ACC and eight family forms. They can be downloaded from our website as PDFs or as part of the Word template package. The invoice forms include a list of the fixed fee activities and relevant rates. You will need to tick the activities you have
Philanthropy initiative gains Queen’s honour By Rachael Breckon Lawyer Bill Holland was “very pleased” when he received the New Zealand Order of Merit but was also a little taken back. Mr Holland, partner at Tauranga firm Holland Beckett, established by his father in 1936, acknowledged the commitment he had made to his local community. Mr Holland is a Legacy Trust trustee, sits on the board of Bay of Plenty economic development organisation Priority One, and is a committee member of Instep, a Priority One initiative aimed at increasing career knowledge in schools. Mr Holland’s community involvement doesn’t end there. He is also a Vicar’s Warden and Vestry member and a member of the Territorial Employer Support Council. A community award would not have surprised him, but he was a “bit stumped” as to why he was receiving a national award. After some deliberation he realised the reason for his Queen’s Birthday Honour must have been in regard to his foundation role with the Acron Foundation. The Acorn Foundation is a charity set up to support charities. It invests bequeathed funds to ensure the donor’s initial contribution continues to grow, and then makes donations to the donor’s stated charities. In other words, people can donate to charity organisations posthumously and potentially for centuries. Recently Mr Holland has been on the road with Stephen Tindall promoting this model, which Mr Holland had gone as far as the United States of America to research. The idea of giving to the same charity for infinity is not without obvious flaws, the first being its demise due to poor management and secondly due to a future where the charity would have succeeded in its goal and no longer be needed.
completed and, except for hearing time activities, you do not have to specify the time spent on each one. The six-month time frame for submitting an invoice also applies to fixed fee cases. Please refer to the provider information packs for clarification.
What is not changing? Civil (except ACC), Appeals, Hague Convention, Intellectual Disability, Mental Health and Private Mediation proceedings will continue to be managed under the existing framework and Proceeding Steps. All legal aid applications received before 23 July 2012 will continue to be managed under the existing framework.
What do providers need to do? To be ready for the new fixed fee framework, providers need to: •
read the provider information packs on the ministry’s website; and
familiarise themselves with the fixed fee schedules and new forms on the ministry’s website. LT
“If they found a cure for cancer, a lot of causes would no longer exist,” Mr Holland says. If this occurs, the foundation will then redirect the donor’s bequest in a pre-organised fashion. The benefit of drip feeding is also beneficial to charities. A lump sum donation on a charity’s books can stop them from becoming eligible for other forms of funding, Mr Holland says. Passive income for the charity also means convenors are able to spend less time filling in grant forms. Mr Holland illustrates the importance of this with the example of a woman from the Stroke Foundation, who spends a lot of time trying to secure funds. “This is absolute nonsense. She should be out helping people that are suffering from strokes,” Mr Holland says. To ensure the Acorn Foundation’s long-term credibility, outside organisations appoint the four unpaid trustees. One is appointed by the Mayor of Tauranga, one by the Mayor of the Western Bay, and two by the President of the New Zealand Law Society’s Waikato-Bay of Plenty branch. In just nine years, the Acorn Foundation is quickly establishing itself at the forefront of philanthropy in the area. “People that have children tend to leave about 10% to charity and people that don’t have children tend to leave about 50% to extended family and 50% to charity,” Mr Holland says. “If all [future donors] die tomorrow – which I certainly don’t want because I am one of them – there would be about $100 million [invested in the foundation].” LT
District Courts about to make history History will be made in the District Courts on 23 July. From that day, all District Court court takers will be announcing openings, adjournments and closings of court sessions in both Te Reo Māori and English. The decision for this change was made by the District Court Judicial Governance Body. It has the full support of Chief District Court Judge Jan-Marie Doogue, Principal Family Court Judge Peter Boshier and Principal Youth Court Judge Andrew Becroft. In recognition of the significance of the decision, it will be implemented during Te Wiki o Te Reo Māori – Māori Language Week, which runs from 23 to 29 July. The theme of the week this year is Arohatia Te Reo – Cherish the Māori language. The judges’ decision to make this change has received the support and assistance of the Ministry of Justice, which is providing court takers and staff with training in appropriate Te Reo Māori phrases. The use of the Māori language in courts is already established in courts of special jurisdiction, such as the Māori Land Court and the Waitangi Tribunal, and is now part of proceedings in the Rangitahi Youth Courts. LT
LAWTALK 800 / 20 JULY 2012
BRANCH NEWS WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869
YLC Mentoring for law students
are still welcome to join Counsel in Concert. Rehearsals continue at 12:15pm each Tuesday at Crown Law, Unisys House, 56 The Terrace, Wellington. For more information contact firstname.lastname@example.org. nz.
The Wellington branch Young Lawyers’ Committee (YLC), in collaboration with the Victoria University of Wellington Law Students’ Society (VUWLSS), has established a mentoring programme for senior law students. The programme pairs up young Wellington lawyers with law students from Victoria in their 4th or 5th year, to provide some professional mentoring and career guidance. YLC and VUWLSS launched the new initiative at a function on 18 July. At the function, students and mentors met and were given coffee vouchers to kickstart their mentoring relationships. From there, the programme organisers hope mentors and student buddies will forge relationships that will guide students through the transition from academic to professional life. Organisers say future networking functions will be “sector specific” and will aim to network both young lawyers and students who are working in or interested in a particular field of law.
NEW ZEALAND LAW SOCIETY NZLS EST 1869
Judge Barry Lovegrove and his daughter Shanelle.
Judge moves daughter’s admission There are few reasons why a judge would want to be a lawyer for a day. For Judge Barry Lovegrove it was the opportunity to be his daughter Shanelle’s moving counsel in a recent Wellington admission ceremony that made him request an exemption for the day.
Devil’s Own golf tournament Entries are now open for the Devil’s Own Golf Tournament held every year since 1932 in Palmerston North. This year’s 78th event will be held at the Manawatu Golf Club from 14-17 September. The defending champion this year is Auckland property lawyer Phil Sheat. Not everyone enters with the aim of winning, however. Some attend despite their golfing abilities, knowing they will meet like-minded lawyers on Devil’s Own weekend. Colourful pants are becoming a hallmark of the event. There is an expanding tradition of lawyers dressing brightly as they and their caddies chase their golf balls round the course.
Counsel in Concert
Father and son lawyers: Chris and David Corry.
Crown Law is seeking legal choristers and musicians to take part in Counsel in Concert 2012.
Generations collide at admission ceremony
Now in its fourth year, Counsel in Concert showcases legal musicians in a now annual charity concert. The two performances of this year’s concert will be held at St Andrews on the Terrace at 12:15pm and 5:30pm on Tuesday 23 October. Choir rehearsals began on 17 July but choristers and musicians
The study of law is not without precedent in the Corry family. David Corry, who was admitted in the Wellington High Court recently, had his father Chris Corry, a barrister at Quayside Chambers, as his moving council.
LAWTALK 800 / 20 JULY 2012
The connection doesn’t end there. In the picture, Chris Corry holds a book of Hansard debates from 1931 which includes comment from grandfather, David Jones, who served as Minister of Agriculture and Mines from 1931 to 1932.
All young Wellington lawyers are encouraged to get involved. Those interested in joining the programme can email YLC at info@younglawyers. co.nz.
Chris Corry was moved by his uncle Antony Corry when he was admitted in 1965.
The format is Friday practice round (optional); Saturday stroke play qualifying round (18 holes); Sunday two-round matchplay; Monday, semifinals and finals, fourball (morning) and foursome, nine hole.
CONTACT CHRISTINE WILSON christine.wilson @lawsociety.org.nz
BR ANCH NEWS
NEW ZEALAND LAW SOCIETY
NZLS EST 1869
Effective networking A seminar on Effective Networking – making the most of every opportunity will be held for Canterbury-Westland branch junior practitioners on 15 August. Head of coaching and development at ASB Bank, Laurie Sharp, is the guest presenter. Mr Sharp has 34 years’ banking experience. His current role at ASB is working on professional skills to help make a difference to customers’ banking experience.
Auckland August events The Auckland branch has a variety of events planned for August. All members are invited to the annual members’ Quiz Night, which has an Olympic Twist this year, a deviation from the 2011 rugby theme. The event will be held on 1 August from 6:30pm at Kensington Swan. Mayor Len Brown will give lawyers insight into the council’s 10-year plan in the first of the Auckland branch series Our City, Our Future on 15 August at the DLA Phillips Fox Tower.
Simon Power will be the guest speaker at the first official combined young accountants and young lawyers event on 9 August at Westpac on Takutai Square, Britomart. Chief executive of BurgerFuel Worldwide, Josef Roberts, will speak to Auckland Young Lawyers about growing a worldwide brand on 16 August at Kensington Swan. For more information on these events and more go to http://my.lawsociety. org.nz/branches/auckland/events or contact the Auckland branch events coordinator frances.levy@lawsociety. org.nz.
He focuses primarily on soft skills including: coaching and leadership, presentation and communication skills, negotiating, networking, changing business trends and business development.
AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869
Auckland Young Lawyers promote the profession Auckland Young Lawyers Committee members gave insight into a career as a lawyer to nearly 200 Māori and Pacific youth last month. Sunil Nathu of Bell Gully and Sam Beswick of Meredith Connell presented four 25-minute interactive workshops on a career in the law at the Church of Jesus Christ of Latterday Saints Education Resource Services – Careers Evening held at the Telstra Clear Stadium, Manukau. Over 500 young people from South Auckland aged 13 to 20 attended the event. Mr Nathu and Mr Beswick fielded questions and talked about their careers to date, the legal profession, the qualifications required, training needed, career development, remuneration benefits and what to study at school in order to get into law.
At the launch of the new GLNO website, front row (from left): Krishneel Prasad, Nid Satjipanon, Nader Luthera, Birsha Ohdedar, Ciaron Murnane, Toko Metua. Back row (from left): Charlene Iefata, Jenni Toma, Neil Shaw, Shaista Shameem, Mehzabeen Aziz.
Grey Lynn Neighbourhood Law Office website launch Information on the Grey Lynn Neighbourhood Law Office (GLNLO) is now available online. The Community Law Centre’s website launch was celebrated at a private function at Bell Gully’s Auckland premises last month. GLNLO chairperson Jacqueline Lethbridge says: “the GLNLO website launch is a major milestone in the history of GLNLO as a community law centre, since it opened its doors in June 1977.”
The website contains information about free legal advice services offered, legal clinics and ongoing education and seminars on legal topic areas of interest and this information is now easily accessible online via the events calendar on our website,” says Nader Luthera, GLNLO’s project and communications adviser. Learn more about GLNLO by visiting their website www.glnlo.org. LT
LAWTALK 800 / 20 JULY 2012
Cost assessor – why you would want to be one By Niamh McMahon*
Costs assessors needed - can you help?
I became a cost revisor (as it was known then) around 1995. At the time there was a shortage of cost revisors.
The NZLS Lawyers Complaints Service is looking for more voluntary costs assessors to help resolve complaints about lawyers' fees.
I remember seeing an advertisement in the Auckland District Law Society publication at the time. I didn’t apply. Apparently nobody else did either.
This is an opportunity to provide a valuable contribution to both the profession and the clients it serves.
That resulted in some senior cost advisors making phone calls to various lawyers to twist their arms to put their names forward. I received one of those phone calls and for one reason or another I didn’t feel able to say no. That’s how I became a cost revisor.
We are seeking costs assessors with all round general experience in most areas. Some areas require all rounders and also lawyers with the following experience: • Otago - family • Canterbury-Westland - criminal and family law • Nelson - estates/conveyancing • Auckland - family, immigration, criminal, employment, civil litigation (especially leaky homes) • Hawkes Bay - criminal • Wellington - commercial, employment, criminal, relationship property, trusts and estates. To be eligible, applicants should preferably have at least seven years’ experience practising in New Zealand as either a barrister or barrister and solicitor. Costs assessors are appointed under delegated authority by lawyers standards committees under s184(1) of the Lawyers and Conveyancers Act 2006. Their role is to analyse the bill of costs and the client file, meet with the parties if appropriate and report to the standards committee as to a fee that is fair and reasonable. Any report will be copied to the parties and the standards committee will make the final determination. For more information or to be considered for an appointment to the costs assessor panel, please contact: Ms Gillian Evans New Zealand Law Society DX SP20202 PO Box 5041 Wellington 6145 Tel (04) 463 2942 Fax (04) 463 2984 Email: email@example.com
LAWTALK 800 / 20 JULY 2012
So, before I go any further, I want to say that I wasn’t on any crusade to save lawyers from their clients or to save clients from their lawyers. I didn’t have any particular prurient interest in other lawyers’ problems. I had no experience in conducting a hearing of any sort. I had no idea how to write a decision and on top of that, no training was offered. What I did have was an interest in law, not only as a profession but also as a business. I understand the importance of providing high quality work. But I also recognise that a bill needs to be rendered and most importantly, it needs to be paid.
Invitation When the Lawyers and Conveyancers Act 2006 was passed, I received a letter from the New Zealand Law Society “inviting” me to continue on under the new system as a cost assessor. I’m sure all of the existing cost revisors received a similar letter. At the time there was a strong opinion held by some former cost revisors that cost complaints should be dealt with separately from professional standards. I agreed with that view but under the old system I came across a few fee disputes that should have been dealt with as disciplinary matters. So, I accepted the “invitation” and I am now a cost assessor. I provide cost assessments on a wide
range of issues. I usually complete six to eight cost assessments a year, although that can vary. I find that they each take about eight hours, all up. I write my assessments on the weekends so that they don’t cut into my working day. I have provided some support to new cost assessors by assisting them with the process and helping them to write assessments. I have also assisted some very experienced cost assessors with peer reviews of their assessments where the matter was either very complicated or controversial. I think I would be overstating it if I said I enjoyed cost assessments. I don’t, but they have to be done.
Benefits There are benefits to the profession in having some self-regulation. I think it also helps the public to have confidence in the legal profession to know that there is a process available where costs can be assessed by other lawyers. That confidence is boosted by the fact that the service is free of charge, the cost assessor is not paid and the sanctions can be meaningful, if appropriate. I do get a sense of satisfaction once the cost assessment is completed, particularly where either the client or the lawyer has been unfairly treated. But of course, that’s not the end of the matter. A Lawyers Standards Committee receives the assessment and decides if it accepts it. After that, there may be further hearings about the matter at the standards committee level. Then there are rights of appeal to the Legal Complaints Review Officer (LCRO). So, the sense of satisfaction at having completed the assessment can sometimes be replaced with a sense of anxiety about whether the LCRO agrees with it. There are some benefits to being a cost assessor. It keeps you in touch with how other lawyers practise law and how clients perceive them. It keeps you up-to-date with the Lawyers
Practising certificate renewal More than 11,000 practising certificates had been issued by the New Zealand Law Society when this issue of LawTalk went to print. In the last issue of LawTalk, we reported that as at 25 June 2012, 10,551 lawyers had renewed their practising certificates. By 5 July, that number had reached 11,346. Next year, the Law Society will have a Lisa Attrill system that will make the renewal process simpler for lawyers, Registry Manager Lisa Attrill says. Lawyers can complete their declarations online. Ms Attrill says that the benefits for lawyers in making their declarations online are positive. “This is a simpler and more efficient process for lawyers as it is received directly into the Registry system, so there is no delay in the receipt by the Law Society, and it only takes a minute or two to complete. Any suggestions received this year for improvements are welcomed and will be reviewed as part of an effort to improve the process,” she says. Support and information about this will be provided closer to the time.
Law Society website,” Ms Attrill says. Due to possible mode of practice and data integrity issues, practice details such as changes to a lawyer’s employment can only be updated by completing a change of details form available on our main website. New Zealand Law Society photo ID cards are now available as a membership benefit at a cost of $10 plus GST. Information and an online application form can be found at www.lawsociety.org.nz/home/nzls_services_for_ lawyers/photo_identification_card. LT
Correction In the item Didn’t renew? in LawTalk 799, p7, there was a statement that people who had a gap in practice may not give legal advice during the period they do not have a practising certificate. This gave an incomplete picture. Section 21(1) of the Lawyers and Conveyancers Act 2006 would apply in that situation. This section states that: “A person commits an offence who, not being a lawyer or an incorporated law firm: (a) provides legal services in New Zealand; and (b) describes himself, herself, or itself as (i) a lawyer; or (ii) a law practitioner; or (iii) a legal practitioner; or (iv) a barrister; or (v) a solicitor; or (vi) a barrister and solicitor; or (vii) an attorney-at-law; or (viii) counsel.” LT
In the meantime, Ms Attrill encourages all lawyers to login to the Law Society’s website and ensure their personal details are correct and that their areas of practice are listed. In addition, lawyers now have the chance to include mobile phone numbers on both the Register and the Find a Lawyer site. Including areas of practice and mobile numbers can assist members of the public who may be searching for a lawyer to engage. “Your login ID is printed on your practising certificate and the lawyer login can be found on the home page of the main
and Conveyances Act 2006 and its various rules and regulations. That’s no bad thing. It helps to reinforce the view that the key to a successful client relationship is clear communication. Most cost disputes arise because of poor communication between the lawyer and the client.
Life is full of risk. It is how you confront risk that counts. People flock to Queenstown from around the globe to willingly place themselves at risk every day, and not just for its stunning scenery. The RMLA invites (even challenges) you to attend the RMLA’s 20th annual conference, where we will tackle risk head on, and at the same time ensure you get to enjoy all of the stunning scenery and exciting adventure tourism activities on offer.
I understand that the New Zealand Law Society is looking to appoint more cost assessors. If you feel it’s time for you to do something for the profession, then I would encourage you to put your hand up and volunteer for the task. You won’t be overrun with accolades and affirmations but you will be providing an important service to both the profession and to the public. You might also learn a thing or two along the way. *A partner of McMahon Butterworth Thompson, Niamh McMahon predominantly practises commercial law. Ms McMahon likes to give something back to the profession. As well as being a cost assessor, she was until recently convenor of ADLSi’s documents and precedents committee and she regularly presents continuing legal education seminars, including for NZLS CLE Ltd. LT
For more information or to receive registration information, please contact: Terri Growcott Conference Innovators Ltd T 03 379 0390 E firstname.lastname@example.org
For RMLA membership information, please contact: Karol Helmink Executive Officer RMLA T 09 626 6068 E email@example.com
www.rmla.org.nz LAWTALK 800 / 20 JULY 2012
UPCOMING PROGRAMMES Programme
Director: Jonathan Krebs Deputy Director: Janine Bonifant
This highly regarded residential week-long course is open to applicants with at least three Christchurch years’ litigation experience. Based upon the National Institute for Trial Advocacy (NITA) teaching method, selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. Applications close 22 June 2012.
Introduction to High Court Civil Litigation Skills
Sandra Grant John Hardie Judge Rod Joyce QC Nikki Pender Paul Radich Tom Weston QC
Surveys of recently admitted practitioners repeatedly identify civil litigation as the area Wellington in which most practitioners in their first three years of practice want formal training. This Auckland programme has been developed in response to this need and to complement both the Christchurch skills based pre-admission courses and the NZLS Litigation Skills Programme.
29-30 Oct 12-13 Nov 19-20 Nov
GST - what lawyers need to know
Allan Bullot Graeme Olding
GST is part of most commercial transactions and those involved in the legal side of Your computer these transactions need to have an in-depth knowledge of how GST is applied. How you Webinar minimise the risk of GST in commercial documents, including possible subsequent IRD penalties; determine if GST applies to disbursements and how to bill and deal with the GST component of insurance receipts – are all issues with important practical implications for you and your clients. This webinar will help you become aware of what you should be advising your clients when dealing with GST.
Litigation Against Directors and Companies
Colin Carruthers QC Victoria Heine
Following recent successful prosecutions, are you confident that you are giving the best advice to company directors and officers? This seminar gives an overview of current law and law reform proposals, including the range of new enforcement actions under the Financial Markets Conduct Bill and enforcement under the Commerce Act. Key practical and strategic issues which need to be considered when advising directors facing regulatory investigations, or litigation will also be discussed. A live two hour webinar will be held for smaller centres.
Dunedin Christchurch Wellington Auckland Webinar
Chair: Mathew McKay
Private International Law - litigating in the trans-Tasman context and beyond
David Goddard QC Transactions and people cross borders with great frequency. It is common for all lawyers Christchurch Prof Campbell to encounter transactions, relationships and disputes that have connections with more than Auckland McLachlan QC one country. The issues are as diverse as the jurisdiction in which a billion dollar financing Wellington agreement may be enforced, and trying to enforce a New South Wales District Court judgment against a judgment debtor living in New Zealand.These issues affect all practitioners and you especially need to be aware of the new High Court Rules; and new regime for trans-Tasman proceedings which will shortly be in force.
The annual NZLS CLE Tax Conference is an important event for all those working in this ever- Auckland changing and demanding area of the law. You can look forward to first class presentations around the latest developments in case law and black letter law. The day provides a great opportunity for NZ’s relatively small number of tax practitioners to come together and share ideas and experiences.
24 Jul 25 Jul 26 Jul 27 Jul 26 Jul 5 Sep
2 Aug 9 Aug 10 Aug
CRIMINAL Litigation Skills
See listing in Civil section above.
Duty Solicitor Training Programme Duty solicitors are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. You will: • complete pre-course reading on the key tasks of a duty solicitor • learn about penalties, tariffs and sentencing options • observe experienced duty solicitors (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty solicitor at a practice court • be observed and assessed while appearing as a duty solicitor (a full day)
Dunedin Invercargill Wellington Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei
13 Jul 13 Jul 3 Aug 3 Aug 3 Aug 3 Aug 3 Aug 21 Sep 21 Sep
31 Aug 31 Aug (in Dun) 14 Sep 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 26 Oct 26 Oct (in Man)
1 Sep 1 Sep (in Dun) 15 Sep 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 27 Oct 27 Oct (in Man)
Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see www.lawyerseducation.co.nz or email firstname.lastname@example.org or contact CLE information, tel 0800 333 111.
Online registration and payment can be made at www.lawyerseducation.co.nz
FAMILY Wills - advising your client
John Donovan Chris Kelly
Poor advice and poorly drafted wills create problems. The presenters, by discussing scenarios, Your computer will cover the issues of blended families, defacto relationships, family trusts, capacity and Webinar undue inﬂuence. If you are involved in will drafting, this webinar is a must.
After Death - claims against estates
Greg Kelly Jacinda Rennie
Money brings out the worst in some people, and claims made after death can tear families Your computer apart. This webinar will discuss the various claims that can be made against estates and Webinar consider advice that can be given to claimants, beneficiaries and estate trustees. The areas covered will include family protection, testamentary promises and relationship property Webinar claims as well as how to document agreements that have been reached.
PROPERTY Residential Property Transactions
Debra Dorrington Simon Ellis Nick Kearney Duncan Terris
This very popular two-day, limited-number workshop, for solicitors at the start of their Auckland property law career and legal executives with some experience, follows three files from client instructions to settlement and beyond.
New NZLS Property Guidlines
Robbie Muir Duncan Terris
The Property Law Section has updated the NZLS Property Transactions and E-dealing Your Computer 31 Jul Guidelines, which will take effect on 9 July when the new ADLS/REINZ 9th edition of the Webinar Agreement for Sale becomes available. The guidelines relating to payment – under the Same Day Cleared Payments System (SCP) - will be given the force of contract for the first time in the new Agreement.
GST - what lawyers need to know
See listing in Commerical/Company section previous page.
GENERAL Building Proﬁ tability: Irene Joyce Leverage, Leadership and Management
There is now a reputable body of evidence that supports the link between law firm profitability Christchurch and effective leverage. However, increasing profitability through leverage is not just about adding more fee-earners. It means that partners must make a shift from the all-consuming role of “producer”, and take on the leadership and management of others. The workshop will identify the day-to-day skills required to motivate staff and achieve high performing leveraged teams.
Stepping Up Foundation for practising on own account
Director: John Mackintosh
The new national Stepping Up course replaces the various local Flying Start courses. Auckland All lawyers wishing to practise on their own account whether alone, in partnership, in an Wellington incorporated practice or as a barrister, will be required to complete the course. Developed with the support of the New Zealand Law Foundation. (From 1 August 2012 (date subject to ministerial approval) Stepping Up will be a compulsory prerequisite for lawyers applying to be barristers sole).
6-8 Sep 8-10 Nov
Writing Persuasive Opinions
Judge John Adams Simon Cunliffe Margot Schwass
Successful opinions are persuasive. Persuasive opinions are clear, succinct, jargon- Wellington free, cogently structured, legally acute and tailored to the needs of your reader/client. Auckland Comprising a mix of presentations and small-group work, this workshop will demystify the practice of writing complex legal opinions. It will provide the chance to practise and receive feedback on your writing from experienced tutors in a supportive, creative and enjoyable setting. Note: places are limited so book early to avoid disappointment.
26 Sep 28 Sep
Trust Account Supervisor Training Programme
Mark Anderson, John Hicks or David Littlefair, and David Chapman, Bob Eades or Lindsay Lloyd
To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, Wellington attend the assessment day and pass all assessments. Make sure you register in time Auckland to do the preparatory work before the assessment day as listed on the right. Christchurch
12 Sep 14 Nov 21 Nov
Lawyer as Negotiator
Building on participants’ own experience, this one and a half day workshop provides hands-on Wellington practice and feedback, as well as a conceptual framework for preparing for and undertaking Auckland negotiations. It uses cutting edge research to examine different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, for addressing specific issues which participants might wish to raise and for generally enhancing skill and confidence in this vitally important aspect of practice.
30-31 Oct 7-8 Nov
GST - what lawyers need to know
See listing in Commerical/Company section previous page.
Programme brochures, online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz
OVERSEAS Urgent need for indigenous prisoners beyondblue CEO Kate Carnell has commended research published in the Medical Journal of Australia on 2 July, which found there was an urgent need to develop and resource culturally relevant mental health services for indigenous Australians in custody. The study found that 73% of indigenous men and 86% of indigenous women in prison had a mental disorder, compared with the 20% prevalence in the Australian community. “We believe that an early intervention approach is essential. Many of the mental health issues that lead to incarceration need to be addressed during the formative years,” Ms Carnell said.
Registry The following people have applied to the NZLS for certificates or approvals.
Admission under Part 3 of the Lawyers and Conveyancers Act 2006
Canterbury Westland Branch KISSICK, Anna Louise LYNCH, Matthew James MCLOUGHLIN-WARE, Laura Jean Conway (nee WARE) PHIMMAVANH, Matthew Bounhieng ROSANOWSKI, Sarah Patricia STEVENS Ariana Muriwai Trudi TOTH, Jason Andras VINK, Jeroen Peter WEIR, Eric David
ELLICOTT Paul Robert William
Otago Branch EHLERS Ryan David John EHLERS Sandra Bevan
Wellington Branch CARTER Timothy Robert OGILVIE Sarah Grant
Waikato Bay of Plenty Branch CLARKE Alistair Richard COOK Jonathan Andrew James DHANJEE Roxy Deepika HICKEY Chantal Louise MARAMA Sonya Tuaine Theresa Te Roro OWEN Jacqui Marie WAGHORN Julie Rochelle (aka Jewels WAGHORN)
Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006
Auckland Branch GONG Xinhe (William)
YORKE Scott Benseman
The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at http://www.lawsociety.org.nz/home/for_lawyers/registry/ applications_for_approval/ Comments concerning the suitability of any of the above-named applicants for the certificate or approval being sought should be made in writing to me by 26 July 2012. Any submissions should be given on the understanding that they may be disclosed to the candidate. Lisa Attrill, Registry Manager Email: email@example.com, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989
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This year, beyondblue is working with The Lowitja Institute and other indigenous community groups to organise a roundtable to identify and address the most urgent mental health issues in their communities. “This is part of beyondblue’s ongoing Aboriginal and Torres Strait Islander Strategic Framework to be implemented over the next three years. We are strongly committed to working with the communities, the health sector and all tiers of government to get better mental health outcomes for indigenous Australians,” Ms Carnell said.
War criminal given 50 years jail The Special Court for Sierra Leone has sentenced former Liberian President Charles Taylor to 50 years imprisonment for shipping arms to rebels in Sierra Leone in return for “blood diamonds”. The sentence came in late May, a month after Taylor became the first former head of state since World War II to be convicted by an international court. The court found him guilty of 11 counts of war crimes and crimes against humanity, including murder, rape, torture and the use of child soldiers. Taylor’s crimes were of the “utmost gravity in terms of scale and brutality”, Presiding Judge Richard Lussick of Samoa said when imposing the sentence. The 50-year jail term imposed on the 64-year-old is one of the longest ever handed down by any international tribunal.
Libya releases ICC staff The International Bar Association’s Human Rights Institute (IBAHRI) has welcomed the 2 July release of four International Criminal Court (ICC) staff members detained in Libya since 7 June. Their 26-day detention followed a visit by ICC counsel Melinda Taylor with Mr Saif Al-Islam Gaddafi – son of Libya’s deposed and now deceased president, Muammar Gaddafi – indicted by the ICC for crimes against humanity. An item on the four ICC staff who were detained featured in LawTalk 799, 6 July 2012, p28.
UK Private Client Services & Estate Administration
Cobbetts is a leading UK law firm based in Birmingham, Leeds, London and Manchester. Our private capital team provides sensitive, timely and thorough advice on a wide range of personal matters, including: • Administration of UK estates • Obtaining Grants of Representation • Contentious trusts and probate • Powers of Attorney • Settlements and Taxation • Wills For further details, please contact: Jennifer Morries on +44 (121) 2229368 or firstname.lastname@example.org Alexia Loughran on +44 (121) 2229277 or email@example.com
www.cobbetts.com Cobbetts LLP is a limited liability partnership
LAWYERS COMPLAINTS SERVICE Incompetence in Hague Compensation order Convention case after loss of clients’ A family lawyer (A) was fined deposit and her fee cancelled after a Lawyers Standards Committee found she had acted incompetently when representing a father who was seeking the return of his son from overseas under the Hague Convention. A complaint against A was brought by the boy’s grandmother, who had initially contacted A on the father’s behalf. She complained of overcharging, incompetence, failing to follow instructions, failing to provide important information and failing to act promptly at crucial times. The grandmother said that A had claimed to be familiar with Hague Convention processes but in fact had needed to research them, resulting in delays and additional costs. She said A had also failed to instruct a lawyer in the United Kingdom. The standards committee said a family lawyer with experience in this area would have instructed a UK lawyer as soon as practicable, but A had not done so. It said she had also failed to lodge documents in time, to progress matters in a timely way, to keep the client informed and to provide invoices. The standards committee found that A had breached her duty to always act competently and with reasonable care (Conduct and Client Care Rules, Rule 3). She had also failed to maintain proper standards of professionalism in her dealings (Rule 10), and had breached the standards of “competent, ethical and responsible practitioners” (B v Medical Council  3 NZLR 810 at 811). Against that backdrop the standards committee also found that her fees had not been fair and reasonable, a breach of Rule 9. The standards committee found A guilty of unsatisfactory conduct, fined her $750, and ordered her to cancel her fee. It also ordered her to pay $750 costs to the Law Society. LT
A Lawyers Standards Committee has ordered a lawyer (G) to partially compensate a couple for the loss of their house deposit after he failed to take the “minimum basic steps” that would have enabled them to cancel their contract. The Legal Complaints Review Officer (LCRO) confirmed the decision.
The facts The seller, a property-development company, was represented by a law firm (ABC) with whom the seller had a long-standing relationship. The buyers were a couple who lived overseas and understood little English. In December 2006 they signed a sale and purchase agreement for a yet-to-be-built Auckland apartment, conditional on them obtaining finance. They paid a total of $53,900 as a deposit, with most of this ($49,925) being held by ABC as stakeholder. The buyers were initially told by the seller’s real estate agent that ABC would represent them. Some days after the agreement was signed, the agent added another firm, (DEF)’s name to it as solicitors for the buyers. The agreement was sent to DEF, which assigned the file to a legal executive, who made no contact with the buyers until July 2007 when she sent them copies of correspondence from ABC, without offering any advice or comment. In October 2007, ABC began acting for the buyers, at the instigation of the seller’s agent. The couple informed DEF it had new lawyers, without specifying which firm. Over the next few months the buyers continued to struggle to obtain finance as the building neared completion. In November 2008, the seller’s agent again intervened, telling the buyers ABC had a conflict of interest and that
the couple needed to find new lawyers. He gave them DEF’s contact details. Without confirming its instructions with the buyers, DEF had written to ABC on 22 October 2008 to inform them that they, DEF, now represented the couple. In early December 2008, ABC served a settlement notice on DEF, despite the buyers’ finance condition not being satisfied. Later that month, after the notice had expired but with the agreement still conditional, ABC transferred the whole deposit to the seller’s mortgagee bank. In March 2009, still without finance, the buyers asked ABC for their deposit to be refunded. ABC responded that it couldn’t deal with them as they were represented by DEF, but the buyers denied having instructed the other firm. They complained to the Law Society.
Own-motion investigation In a separate decision, the standards committee had ordered two lawyers from ABC to pay the buyers a total of $45,000 compensation, as the firm had acted despite a conflict of interest (see “Unsatisfactory conduct: Practice to pay compensation for clients’ lost house deposit”, LawTalk 781, 23 September 2011). The standards committee had also begun an own-motion investigation into the role of DEF’s principal, G. The standards committee criticised DEF’s failure to advise and protect the buyers at several key points. When it first received the agreement in December 2006, the firm had failed to contact the buyers to confirm their instructions or to provide any advice on the agreement, or to find out if the conditions had been or could be satisfied. DEF had also wrongly represented to ABC in October 2008 that it had resumed acting for the buyers. When the settlement notice was served on DEF in December 2008, the firm also failed to take steps that could have
LAWTALK 800 / 20 JULY 2012
L AW YERS COMPL AINTS SERVICE prevented the buyers forfeiting their deposit. The standards committee accepted that for the most part DEF’s errors were made by staff, not by G. It also found no shortcomings with his supervision in those areas, as he had provided his staff with firm manuals and in-house instruction by a Law Society presenter. However, the committee found that G’s conduct after the settlement notice was received was a different matter, as he had been made aware of the notice and the steps he had then taken personally had been inadequate and unacceptable. G said he had tried over three days to contact the relevant lawyer at ABC, with no success. He had then left a message stating that DEF did not represent the buyers and that the settlement notice was ineffective. The committee said this wasn’t enough. Given he believed the buyers were not his clients, G should have notified ABC of this in writing. He should also have tried to contact the buyers immediately to tell them about the settlement notice and to find out if some other firm was representing them so that it could be notified. G had not taken “the minimum basic steps one would expect a prudent solicitor to take in such a situation”, and the standards committee found him guilty of unsatisfactory conduct. It found his omissions had contributed to the buyers’ loss and it ordered him to pay them $5,000 compensation and to pay the Law Society $750 costs.
A “new concept” G applied to the LCRO, who confirmed the standards committee’s decision, although with reservations about the principal’s supervision of his practice. The LCRO ordered him to pay $1,600 towards the costs of the review. G argued first that a breach of standards by itself does not automatically justify an adverse disciplinary finding. He cited several legal and medical disciplinary decisions as authority that a threshold of seriousness must be crossed. The LCRO rejected this. He said that with the introduction of the “unsatisfactory conduct” category by the Lawyers and Conveyancers Act 2006 (LCA), the relevant threshold is now “much reduced” compared to the cases G
LAWTALK 800 / 20 JULY 2012
cited. The LCRO quoted Duncan Webb’s view that unsatisfactory conduct is a “new concept” that covers “a professional lapse”. Now, “orders may be made by the professional body for wrongs which were not previously considered professional breaches. Oversights, slips, and other errors which fall foul of the ‘reasonably competent lawyer’ test will amount to unsatisfactory conduct” (Webb, Professional conduct: Unsatisfactory conduct, at www.justice.govt.nz/ tribunals/legal-complaints-reviewofficer, under “Forms, Practice Notes and Guides”). Professor Webb also emphasises that unsatisfactory conduct involves a “reasonable consumer” test based on the expectations of ordinary people, a shift away from the previous peer-based standard reflecting the expectations of the legal profession.
Compensation and causation G also argued that the loss of the deposit had been caused not by his conduct but by ABC releasing it despite the agreement still being conditional. He believed the compensation order was unreasonable and excessive. The LCRO said the compensation provision in the LCA – which covers losses suffered “by reason of” a lawyer’s conduct (s156(1)(d)) – should be interpreted consistently with the principles of causation applied by the courts. It must be shown that the loss arose from the lawyer’s breach of obligations and would not have arisen but for that breach. The LCRO found it had been reasonable for the standards committee to conclude that the loss would not have occurred but for the conduct of, to a greater or lesser extent, all three lawyers who were ordered to pay compensation. As well as the “but for” test, the LCRO said the courts have considered the loss of chance, and here the buyers had been deprived of the opportunity to protect their deposit. Had they received good legal advice on their options for cancelling, it was “highly probable” they would have prevented their deposit being paid over. The LCRO said that when the settlement notice was issued, G should
have, at the least, contacted the buyers to tell them what had happened and to find out if they believed his firm represented them. He had control of the file at that point and so should have known his firm hadn’t given notice that the conditions were satisfied, and a discussion with the buyers would also have revealed whether or not they had given notice independently. The LCRO also said that the $5,000 compensation order represented a fair assessment of the level of G’s culpability.
Supervision: manuals and seminars not enough The LCRO said he did not necessarily agree with the standards committee that the principal’s supervision of his staff had been adequate. He said it wasn’t enough to simply provide manuals and seminars. A principal must also ensure that staff were adhering to the manuals and the advice given in the seminars. The LCRO also said it was unacceptable that staff should be accustomed to acting on directions from a real estate agent rather than independently verifying instructions and advising the client directly. The LCRO emphasised that this issue should be borne in mind by any firm that receives referrals from real estate agents. If DEF had followed the same approach with all its clients, the LCRO said, this would likely reflect shortcomings in the practices and procedures for which G was responsible. However, he concluded that without further investigation it couldn’t be said that G had breached his supervisory obligations. He therefore confirmed this part of the standards committee’s decision. LT
Different fees complaint process under new act The Legal Complaints Review Officer (LCRO) emphasised recently that complaints about lawyers’ fees are now dealt with in the same way as any other complaint about a lawyer’s conduct. This is different to the costs revision process under the Law Practitioners Act 1982. The current complaints process can be used to adjust the level
of a lawyer’s fee only if it warrants a finding of unsatisfactory conduct. After a commercial tenant and landlord had negotiated a new lease, the landlord’s lawyer (B) passed on his fees to the tenant under the terms of the new agreement. The tenant disagreed as to what costs it was liable for under those terms. It complained to the Law Society about B’s bill, asking for a “costs revision”. A Lawyers Standards Committee found that B’s costs and his charging policy had been reasonable. The tenant then applied to the LCRO, who upheld the committee’s decision to take no further action on the complaint, but for a different reason. The LRCRO ruled that the complaints process was not the proper forum for resolving this matter, as it was a dispute about liability relating to which terms of the lease documentation governed the issue and how they should be interpreted. The LCRO also observed that the tenant may have mistakenly believed that the old costs revision process under the Law Practitioners Act 1982 continued under the Lawyers and Conveyancers Act 2006 and the rules made under it. Previously a client could apply to have their bill reviewed by a costs reviser appointed by the Law Society. Bills would be adjusted through this process, sometimes by only modest amounts. The LCRO said that although a standards committee might ask for a report from a costs assessor under the new complaints process, a bill can be adjusted only if the committee finds the lawyer guilty of unsatisfactory conduct on the basis of a breach of the fees provisions in the Conduct and Client Care Rules. These provide that a lawyer must not charge more than a fair and reasonable fee, taking into account various specific factors (see Rule 9). The LCRO said that adjusting a bill under the new process “requires some degree of certainty that a lawyer’s bill is demonstrably too high”. LT
WILLS MAUREEN SHAW Would any lawyer holding a will for the above-named, born on 13 February 1951, who is residing in Rotorua, but previously from the Hamilton area, please contact Prue McGuire, Barrister, PO Box 2060, Rotorua 3040, ph 07 350 2063, fax 07 350 2065 or email firstname.lastname@example.org.
Raymond William Ward Would any lawyer holding a will for the above-named, late of Upper Hutt, beneficiary, born 25 May 194l, who died at Wellington on 6 June 2012, please contact Letizea Ord of Ord Legal, PO Box 10909, Wellington 6143 or email email@example.com.
Alan Wayne Hatchard Would any lawyer holding a will for the above-named, late of 179 Ellicott Road, Dinsdale, Hamilton, who died on 17 June 2012, please contact Graham Leslie Hatchard, 8 Achilles Rise, Flagstaff, Hamilton 3210, ph 07 854 3666 or email firstname.lastname@example.org.
MARINA JAKO MILICICH Would any lawyer holding a will for the above-named, late of 56 Roaches Road, RD 4, Morrinsville, who died on 10 June 2012, please contact Jillene Peters, Harkness Henry, Lawyers, Private Bag 3077, Hamilton 3240, ph 07 838 2399, fax 07 839 4043 or email email@example.com.
Laszlo Vegh Would any lawyer holding a will for the above-named, late of 2 Kilgour Street, Seacliff RD 1, Waikouaiti, who died on 4 January 2012, please contact Jin Govind, Senior Trust Officer, ph 04 978 4868 or email firstname.lastname@example.org.
BRIAN DAVID KENNEDY Would any lawyer holding a will for the above-named, who died aged 64 at Wellington Hospital on 28 July 2011, please contact Paul Whitmarsh, Whitmarsh Law, PO Box 30852, Lower Hutt 5040, ph 04 550 4053, fax 04 589 5318 or email email@example.com.
Lesley Ruth MUNGAVIN (Nee Dagg)
Would any lawyer holding a will for the above-named, late of 5B Winiata Street, Brookfield, Tauranga, journalist, who died on 11 June 2012, please contact Anna Russell of Mackenzie Elvin, PO Box 14016, Tauranga 3143, ph 07 578 5033, fax 07 578 9514 or email firstname.lastname@example.org.
The Minister of Justice is seeking expressions of interest from barristers or solicitors of the High Court or Justices of the Peace who wish to be considered for the role of Visiting Justice for the following areas: •
Taupo / Turangi
The central function of Visiting Justices is to hear charges and appeals relating to offences against prison discipline. Full details including position description and application form are available from the Ministry of Justice website www. justice.govt.nz Applications close on 3 August 2012.
The Attorney-General is seeking expressions of interest from barristers or solicitors of the High Court with at least five years experience who wish to be considered for the role of a Coroner for the Auckland area. The central function of a Coroner is to provide an independent coronial system for investigation and to prevent deaths and promote Justice through: 1. Investigations, and the identification of the causes and circumstances, of sudden and unexplained deaths, or deaths in special circumstances; and 2. The making of specified recommendations or comments that, if drawn to public attention, may reduce the chances of the occurrence of other deaths in similar circumstances. Full details including position description and application form are available from the Ministry of Justice website www.justice.govt.nz Applications close on 3 August 2012.
LAWTALK 800 / 20 JULY 2012
WILLS Donald Bailey Busfield Would any lawyer holding a will for the above-named, born on 26 February 1956, who previously lived at Merida Avenue, Meadowood, North Shore, Auckland until 2005 when he moved to 9/55 Pembroke Street, Hamilton. Currently at Selwyn Sunningdale home, Peachgrove Road, Hamilton, please contact James and Dorothy Busfield, PO Box 65, Tokoroa 3444, ph 027 342 0486 or email email@example.com.
MISSING PERSON Valerie June Riley Would any lawyer knowing contact details for the above-named, born on 5 May 1968, of Auckland, whose mother is seeking to make contact, please contact Kerrie Pihema, Rokez Investigations Ltd, ph 04 386 3260 or email firstname.lastname@example.org.
Fearon & Co 56x100 ad_BW.qxd:Layout 1
ENGLISH LAW AGENCY SERVICES SOLICITORS Established 1825
Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:-
Exhilaration doesn’t just come from the extreme moments. It can appear during the quiet successes. It can stem from the culmination of applied effort and determined focus. And it can be experienced in your day-to-day work. This is nowhere more apparent than in our Christchurch office. From a career perspective there is so much to be gained from joining Anderson Lloyd Christchurch. Progress is not just stirring here – it’s gaining greater momentum by the day. The national significance of what’s happening is huge. The unique, evolving environment has altered the legal landscape and the challenges and complexities ahead really are career defining. This is your chance to be at the heart of it. Here you’ll enjoy the best the South has to offer – a legal career packed with the potential to progress, and a quality of life that’s second to none. You can enjoy the mountains and many attractions of the region while experiencing comparable levels of action in your work. Whatever your experience, pick up the phone and tell us your plans to build an accomplished career with Anderson Lloyd in Christchurch. Direct all enquiries to:
KELLY PANKURST HR Manager Private Bag 1959, Dunedin 9054 Phone: 03 471 5406 email@example.com
• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations
VISIT OUR WEBSITE www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 00 44 (0)1483 540840 Fax: 00 44 (0)1483 540844 General Email: firstname.lastname@example.org
Martin Williams 00 44 (0)1483 540843
PROPERTY John Phillips
00 44 (0)1483 540841
Francesca Nash 00 44 (0)1483 540842
Regulated by the Solicitors Regulation Authority of England and Wales
SITUATION VACANT GENERAL PROPERTY PRACTITIONER WANTED Paxton-Penman et al We are looking for a talented general property practitioner with approx 4-5 years’ PQE to join us. We are a unique firm specialising in property and commercial matters with offices in Auckland and Warkworth. If you are passionate about the law, have a great sense of humour and are committed to excellence then please forward your CV and cover letter in confidence to stephanie@ppetal. co.nz.
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C unningham & C lere Office of the Crown Solicitor – Wellington Litigator (2 – 6 years’ experience) As the Wellington Crown Solicitor’s office we undertake criminal prosecutions, regulatory enforcement and litigation for the Crown. A vacancy for a litigator has arisen, and applications are invited from solicitors who are seeking to advance their career in a highly collegial work environment. Although our core work is the prosecution of indictable offences the firm also acts for a wide range of Crown and other entities providing representation and advice with a focus on civil litigation, public law, regulatory enforcement and professional disciplinary work. We are seeking to appoint a solicitor who has 2 – 6 years’ litigation experience to work across our client base. Strong written and oral communication skills are essential as is sound decision making on legal and procedural matters. You will be conscientious and resilient, be able to work with minimal supervision and able to manage your workload effectively. Previous court experience is essential. Criminal experience is advantageous but not a prerequisite. All applications should include a covering letter, curriculum vitae and academic transcript. Please send applications to Luke Cunningham & Clere, PO Box 10-357 Wellington 6143, Attention – Jenny Paget, or by email to email@example.com. No agencies please. Applications close on Monday 6 August 2012.
Junior Barrister - Criminal Law Applicant will have: • • • • • •
Excellent Academic Record Strong legal research and submission writing Confidence to appear regularly in Court Ability to deal with high quality and stressful workload Would suit an applicant with 1 to 5 years’ experience MOJ approval cat 1 or 2 preferred
Applications to : Chris and Michele Wilkinson-Smith City Chambers, Shortland Street, Auckland Chris@defence.co.nz
SOUTHERN CROSS CHAMBERS There are currently two rooms available in these well appointed, well positioned, longstanding central city Chambers. Comprising 14 separate barristers’ offices, a large common room, kitchen and library over two floors in the Southern Cross building, the Chambers provide a wonderful working environment for those practicing at the Independent Bar. The positions would either suit someone contemplating leaving a firm and going to the Bar, or someone already at the Bar wanting to join a friendly convivial set of Chambers. For more information/enquiries, please contact Andrew Gilchrist, phone (09) 309 2097, mobile 027 481 2817, email firstname.lastname@example.org
We are a highly regarded, thriving, mid-sized law firm located in Auckland’s CBD. Due to continued growth, we are now looking to fill two new roles: • Senior property and commercial solicitor (five + years’ PQE); and • Junior property solicitor (two + years’ PQE). The successful candidates will need to have a great rapport with clients and colleagues, and excellent technical and communication skills. We have a strong team approach and you must be able to work closely with others. Our firm culture is genuinely committed to a work / life balance. Please send your expressions of interest to email@example.com
Warkworth – Property/Family Lawyer • At least 5 years’ PQE • Escape the rat race • Be part of a succession plan We are a well established Warkworth practice looking for an experienced lawyer to join our team. The work has an emphasis on property, trusts and estates, relationship property and family matters. There is also an opportunity to do wider civil litigation and commercial work. This is a rare opportunity to become part of our succession plan. A friendly yet professional working environment is on offer with a good work/life balance and reasonable hours. Get out of the rat race and come and live near the beaches only 40 minutes north of the Harbour Bridge. Send your CV and covering letter John@dysonsmythe.co.nz
LAWTALK 800 / 20 JULY 2012
SITUATIONS VACANT Civil Litigators and Employment Lawyers, Tauranga Sharp Tudhope is a long-established legal practice in the Bay of Plenty region. Highly respected and positioned as a pre-eminent commerical and property firm, the partnership has an eye toward the future and is actively growing its profile. The firm engages with a diverse range of clients comprised of commercial entities, utility companies, consumer trusts and private clients. With a collegial culture and offering the benefits of working in a beautiful beach location, these are prime opportunities! We are seeking two civil litigators with 2-3 and 4 years’ PQE respectively. Some employment law experience is preferable, but not essential. You will work closely with an expert in the field of civil litigation who is keen to coach and mentor highly motivated people seeking challenging work in all aspects of this interesting practice area. With your solid experience, you will enjoy and benefit from working as part of a committed team where excellent client service is paramount. In return, you will appreciate the resources and training provided in this firm, assisting you to leverage your career to the next level and beyond!
Leading law firm Simpson Grierson is looking to add intermediate and senior solicitors to their busy practices. We have two urgent needs in Auckland and Wellington for stellar lawyers in the following areas: Banking and Finance (Auckland), 2-6 years’ PQE Enjoy the benefits of running deals in this busy and leading banking team. Work includes lending transactions such as corporate and institutional work, capital markets issuances, and advising on relevant industry regulation. You will need 2-6 years’ of strong relevant experience. Commercial Litigation team (Wellington), 7 years’ plus PQE The team acts for large corporate and public sector clients covering energy, networks and utilities; financial services; insolvency; trade practices and commercial property. The ability to analyse complex commercial and regulatory issues and experience in court are key. If you are looking to join a successful team and make a strategic career move then apply now. For further information in strict confidence please contact: Madeline Bower, Human Resources Manager T. +64 9 977 5242 or E. firstname.lastname@example.org Bridget McIlraith, Human Resources Manager T. +64 4 924 3439 or E. email@example.com
Contact Claudia Arieli, Rebecca Laney, Vanessa Hopkins or Lindzi Simpson on 09-377-2248 or email jobs@ nicherecruitment.co.nz. Ref: A010025
Commercial Manager, Christchurch This highly successful global technology company with its HQ in Christchurch has a 12-month fixed term opportunity for an experienced commercial lawyer (5+ years’ PQE). You will have extensive experience creating and negotiating large contracts for the domestic and international markets and be able to demonstrate a high level of business acumen. Some in-house experience would be desirable, however we would also consider a commercially savvy solicitor from private practice. Due to the nature of the business it would be helpful if you had a technology background, however this is not essential. A strongly values-based company, the successful applicant must have an ethical and moral approach that will not compromise on the commercial viability of the customer’s contracts. Along with an attractive remuneration package, the organisation will provide hotel, car hire and flights to people relocating to Christchurch as well as support in moving and finding accommodation. For further information in strict confidence please contact Ben Traynor or Clare Savali on 04 471 1423 or email firstname.lastname@example.org. Ref: BT10065
Phone: +64 4 471 1423 Email: email@example.com www.nicherecruitment.co.nz
INSURANCE AND LITIGATION SOLICITOR Our client has a newly created opportunity for a solicitor with at least 4 years’ litigation experience to join their growing insurance team in Wellington. This is a fantastic chance to join one of New Zealand’s leading insurance practices. You will be providing indemnity advice, defending litigated liability claims and pursuing recovery actions, policy drafting as well as giving business advice. You will run your own files including attending mediations, directions conferences, hearings and preparing for trials. REF: 30253
CORPORATE/COMMERCIAL AND PROPERTY LAWYERS Now the scene of a major rebuild offering challenging revolutionary work, a number of leading commercial law firms in Christchurch are recruiting corporate/commercial and commercial property lawyers to meet the demand across these areas of practice. The ideal candidates will have between 3 and 10 years’ experience in company law, property including property acquisition, development and financing as well as general commercial matters. REF: 30478 To apply, please visit www.momentum.co.nz and enter the reference number on the home page. Alternatively, email your CV to firstname.lastname@example.org quoting the reference number. For further information in strict confidence, please contact Carla Wellington for REF: 30253 or Jen Little for REF: 30478 on (04) 499 6161. AKL Level 12, AXA Centre, 191 Queen St
WGTN Level 8, Simpl House Cnr Willis & Mercer St
PO Box 105-735, Auckland
PO Box 11 003, Wellington 6142
P +64 9 306 5500 F +64 9 306 5511
P +64 4 499 6161 F +64 4 499 7171
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