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Practising Well Supporting Kiwi lawyers since 2009 Be sure to check out our PRACTISING WELL resources at






“It was a wonderful experience. It was a process of measuring myself against the best that America and the rest of the world could produce.” p. 10

“If you get too comfortable with your skill set, you don’t grow as a lawyer and, in the end, that hurts business.”


p. 5



Dressing up success



The role of clothing in professional culture is one that has intrigued humanity for centuries...

Global law firm networks provide value The rise of the global law firm network has been a phenomenon of the last two decades... Awards for commitment and integrity


The inaugural New Zealand Law Society Auckland Branch Law Awards gave the region’s lawyers the chance to celebrate the success...



How to get the ‘real’ work done

Learn, grow, advance…

Justice Blanchard bids farewell to the bench

By Robyn Pearce


The bench will not be the same without Justice Sir Peter Blanchard...

It’s amazing how much time can be taken up doing everything but the real work...



How high you want to climb up the professional ladder depends on knowledge, experience and determination...

Law Society success on key EEZ Bill submissions

Managing your career by making yourself discoverable!

The Local Government and Environment Committee’s report back on the Exclusive Economic Zone and Continental Shelf...

“Standing on a street corner waiting for no one is power,” said poet Gregory Corso. He was writing at a time before the explosion of the net...









People in the law

Law Reform Report

The Bookshelf

Law Foundation

Branch News


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

LAWTALK 797 / 8 JUNE 2012




s we all know, the legal profession is undergoing a process of rapid and farreaching change. Whether it’s changes to legal aid, or simply the way technology is affecting how we go about our day-to-day business, practising law in the early 21st century is quite different from (say) 20 years ago. But while many processes and systems have changed, the end goals remain the same. Networking and information sharing are vitally important in such times. In a pastoral sense, it’s important to resist the temptation to adopt a “siege mentality” and think we’re in it all alone. And in the purely professional sense, it’s always a good thing to be in contact with others and to share information. In the public sector, the Government Legal Services programme (GLS) has been established to support government lawyers in the effective and efficient delivery of legal services to the Crown through greater


LAWTALK 797 / 8 JUNE 2012

collaboration and sharing of legal resources and expertise across core Crown agencies. The GLS is an initiative of departmental chief legal advisors and the Solicitor-General, sponsored by the Attorney-General. In my own role as Chief Legal Advisor for the Ministry for Culture and Heritage, I have organised legal interest group gatherings in the cultural sector among organisations and entities that might benefit from a shared information pool. It makes sense: on both a personal and a professional level. Finally, a blatant plug for the public sector! Public sector law is sometimes overlooked as a career option for young lawyers, which is a shame. Training opportunities are numerous, and the work can often be interesting and highly varied, encompassing many of the disciplines that are encountered in the private sector. There are constant intellectual challenges, a wide variety of career paths and great collegiality. Nerissa Barber New Zealand Law Society Vice-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.

STREET ADDRESS: 26 Waring Taylor Street, Wellington Postal address: DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand EDITOR: Frank Neill Ph +64 4 463 2982 WRITERS: Rachael Breckon Ph +64 4 463 2910 Hannah Grant Ph +64 4 463 2902 DISPLAY Advertising: Frank Neill Ph +64 4 463 2982,

Coming up … NZ’s biggest criminal law conference

Health and Responsibility.

The biggest criminal law conference ever to take place in New Zealand will be held in Queenstown from 12-16 September.

Inaugural world indigenous lawyers’ conference

Shrinking International Criminal Code is the theme of the event, the 13th International Criminal Law Conference. Organised in association with the New Zealand Criminal Bar Association, this conference has received support from the New Zealand Law Foundation. The organising committee, chaired by Judge David Wilson QC of the District Court in Auckland, is putting together a challenging programme which will explore contemporary issues of particular significance to national and international criminal justice. Speakers will be drawn from leading judges, practitioners and academics. The programme will include such diverse topics as empirical jury research, juries and social media, developments in evidential DNA, cybercrime, sentencing, neuroscience and brain injuries in the criminal justice system, special intervention courts, and bill of rights issues. There will also be two presentations on topics from the international criminal law field, delivered by sitting judges of international criminal tribunals

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The Australasian Association of Bioethics and Health Law conference will be held in Auckland from 12-14 July at the Viaduct Events Centre.

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The theme of this conference is Harm,


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See aabhl2012.

Te Hunga Roia Māori o Aotearoa (the Māori Law Society) will host the inaugural World Indigenous Lawyers’ Conference in Hamilton from 5-8 September. Registrations are now open for this Hui-a-Tau, which is targeted at anyone interested in learning and contributing to the theme Law as a tool for indigenous peoples’ development: worldwide strategies and international perspectives. To be held at Waikato University, the conference aims to assess how the law can be used as an indigenous development tool. “It promises to be a superb event with international speakers, academics, and practitioners affording New Zealand practitioners and students inperson access to seminal international indigenous legal jurisprudence,” Te Hunga Roia Māori o Aotearoa copresident Tama Potaka says. Discussion and debate over topical issues facing indigenous people, in particular, constitutional reform and the ownership and management of natural resources is planned. The conference programme and presentations will touch on a crosssection of law that has a particular impact on indigenous people including: family law, youth justice, banking and finance, the court system, alternative dispute resolution, and corporate governance. See hui-a-tau-2012.cfm. LT

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LAWTALK 797 / 8 JUNE 2012



Dressing up success By Rachael Breckon The role of clothing in professional culture is one that has intrigued humanity for centuries. Henry David Thoreau said: “It is an interesting question how far men would retain their relative rank if they were divested of their clothes”. Perhaps Elizabeth Bowen was more correct when she said: “On the subject of dress almost no one, for one or another reason, feels truly indifferent: if their own clothes do not concern them, somebody else’s do.” Philosophy aside, international legal websites still emphasise the importance of impeccable dress as part of the culture of legal practice. New Zealand clothing advice tends to be centred around job interviews. However corporate personal stylist Angela Stone says professional services providers can be “so engrossed in their careers” they forget the importance of presenting fashionably and in an up-todate manner. Ms Stone says the number one problem in New Zealand is that people need to get out of their black. Colour is not only usually more flattering, it stands out, is memorable and shows confidence, Ms Stone says. Clothes should also fit well, be tailored and be modern without going “over the top”. This needs to be matched with a modern haircut, good shoes and hosiery to project a polished appearance. While research continually shows first appearances count, the success that comes from projecting a professional image may also have a positive psychological effect. Dr Hajo Adam and Dr Adam Galinsky from Northwestern University have introduced a new term to describe the systematic influence that clothes have on the wearer’s psychological processes – “enclothed cognition”. Their recently published research shows clothes can impact on a person’s cognitive process. This involves the cooccurrence of two independent factors – the symbolic meaning of the clothes and the physical experience of wearing


LAWTALK 797 / 8 JUNE 2012

them. They explored the effects of wearing a lab coat. A pre-test found that a lab coat is generally associated with attentiveness and carefulness. They found in trials a person’s performance increased on attention-related tasks when wearing the lab coat. When participants were told the same coat was a painter’s coat, their performance decreased.

Quick tips • Follow your boss’s lead – if in doubt ask • Wear colour • Make sure clothes/suits fit well • Invest in good shoes • Wear tailored clothes • Be modern • Wear hosiery • Have well cut hair • Have a good dry cleaner

Dress worn in the High Court, Court of Appeal and Supreme Court Formal dress is expected at all times in the higher courts: • a dark (black, blue or dark grey) suit or skirt; • white shirt or blouse; • a tie for men; • black shoes; • dark socks or neutral/dark coloured pantyhose/stockings; and • a gown.

Dress worn in the District Courts A more individual style of dress is acceptable in the District Courts, but the way you dress should still show respect for the court: • • • •

preferably a dark suit or skirt; tie for men; covered shoulders for women; and gowns for jury trials. LT


Learn, grow, advance… By Hannah Grant How high you want to climb up the professional ladder depends on knowledge, experience and determination. Whether you aim to reach the upper echelons of the legal profession, move up from your current position or you are just starting out, developing professionally is essential.

such a comprehensive professional development programme gives Simpson Grierson competitive advantage in the marketplace. “In the JRA Best Places to Work Climate Survey we stand out with professional development. It’s a really nice learning environment and we pride ourselves on having very well trained lawyers.”

It is well known that in order to be successful, you need to think strategically about your skills, objectives and the areas in which you need to develop to reach your career goal/s. It is therefore beneficial that your workplace encourages and facilitates professional development for this end. Dunedin law firm, Downie Stewart’s business philosophy is “selling knowledge” and the best way to achieve that is through staff training and development, says partner Gerard DeCourcy. “We have bi-weekly professional meetings which enable our lawyers and legal executives the opportunity for the unstructured sharing of information about new law, new processes and latest LINZ requirements so they can be constantly up to date. “We also send our employees off to conferences, lunches and seminars,” he says. Professional development is not only important for the individual but is also in a firm’s interest as ensuring a lawyer maintains necessary (or exemplary) knowledge and skills means they are able to provide the most comprehensive legal advice to clients. Mr DeCourcy says Downie Stewart attracts and rewards people who are proactive about their careers. “If you get too comfortable with your skill set, you don’t grow as a lawyer and, in the end, that hurts business,” he says. Professional development is critical to staff satisfaction and creating a good workplace culture, Julie O’Brien of Simpson Grierson says. Ms O’Brien is Professional Development Manager at Simpson Grierson and says that they are the only firm in New Zealand with a dedicated

Professional development is essentially investing in your staff. Although many firms make extra training for junior lawyers compulsory, it is often up to more experienced lawyers to pursue professional development opportunities on their own accord.

If you get too comfortable with your skill set, you don’t grow as a lawyer and, in the end, that hurts business.

Gerard DeCourcy

“Each person is encouraged to grow and develop in ways that enhance the vitality of our firm, the excellence of our work product and the service delivered to our clients,” says Kirstin Wood, Human Resources Manager at Duncan Cotterill. “There’s no complacency here.” Duncan Cotterill’s professional development opportunities include weekly lunch sessions where learnings on topical cases are discussed and there are practical training presentations. “We also try and help drive businessdeveloping networking skills as we know every lawyer isn’t born with those skills. We have the luxury of being the right size so that junior lawyers are exposed to associates and partners and clients as well.

professional development training team.

“Professional development is really important. Lawyers need to be constantly kept abreast of what’s going on in different areas of practice,” says Ms Wood.

“With our professional development programme we look for the learning needs of our staff and then organise annual training workshops around those needs. If there is an individual need we will also get a coach in or send them out for training.

Regardless of where you are in your career, pursuing development opportunities can be useful both as a way of thinking through what you want to do long-term and as a way of developing and evidencing the skills that you will need to move on.

“We run partner training, author training, training weekends and have team building budgets. Our in-house workshops include business writing and grammar boot camps,” she says.

With the proposed mandatory Continuing Professional Development scheme for all New Zealand lawyers on the horizon, if you do not actively engage in professional development, now is a good time to start. LT

Ms O’Brien asserts that having

LAWTALK 797 / 8 JUNE 2012



Awards for commitment and integrity The inaugural New Zealand Law Society Auckland Branch Law Awards gave the region’s lawyers the chance to celebrate the success, innovation, volunteer work and contribution to the community of their peers. The awards ceremony was held at the Northern Club on 24 May. Candidates for the awards were judged by a panel consisting of members of the Law Society’s Auckland branch Council, and each award winner will receive $2,000. “We often hear of our colleagues’ achievements in a social or work setting, or too frequently at the end of their careers,” Law Society VicePresident and Auckland branch President Chris Moore said. “The purpose of the awards is to recognise and appreciate the tremendous contribution that lawyers make to the community in the service of their profession. “We would like to warmly thank the award sponsors and the award ceremony sponsor, Smartbox, who have made possible what has been a highly successful initiative,” Mr Moore said.

Bell Gully Outstanding Service to the Community Award – Arunjeev Singh Arunjeev Singh is an example of a lawyer committed to helping the community. Bell Gully partner Mathew McKay presented Mr Singh with his award. Mr Singh is a Papatoetoe barrister specialising in immigration, family and criminal law. Most of his clients are referred through charities – Hope N Help Charitable Trust; Citizens Advice Bureau Papakura and the Voluntary Law Association of India New Zealand Inc. His involvement with the local community began when he was invited to attend community meetings as the only recognised turban-wearing lawyer in the Auckland Indian community. From there he became involved in mediation services and was then


LAWTALK 797 / 8 JUNE 2012

Arunjeev Singh

sent people who couldn’t afford representation. He is the only lawyer on each charity’s roster who is willing to take clients as and when he is available. Charity referred clients are given priority if they are in situations of financial or social hardship. Most of Mr Singh’s pro bono clients are the elderly or women. Clients are not only from India. He also advises people from Fiji and Sri Lanka. Most come to him due to social issues that mean they can’t seek help from other organisations because of privacy and confidentiality issues.

Rebecca Savage and Clayton Kimpton

“I’ve never felt that what I do is outstanding,” Mr Singh says. “It is just part of my everyday life. It’s my contribution towards a country and community that has given me such a good life.”

In her short career, she has already appeared in the District Court, Youth Court and High Court on numerous criminal matters.

Mr Singh’s prize money will go to the Voluntary Law Association of India New Zealand Inc. As well as the Bell Gully Outstanding Service to the Community Award, Mr Singh also received a 2010 Papakura Community Volunteer Award from the Papakura District Council.

Kensington Swan Young/New Lawyer of the Year Award – Rebecca Savage

As a judge’s clerk at the Auckland High Court, Ms Savage produced numerous high quality research and memoranda.

She currently works in the general litigation team at Meredith Connell, providing regular advice to a number of government departments, and continues to prosecute jury trials in the District Court. She shows commitment to the community as a foundation member of Auckland Young Lawyers, a volunteer at the Grey Lynn Community Law Centre, her church, and the A Girl Called Hope charity.

Rebecca Savage won the Kensington Swan Young/New Lawyer of the Year Award.

As an undergraduate at Auckland University, she was as a tutor, mentor and Education Vice-President of Auckland University Law Students’ Society.

Kensington Swan chief executive partner Clayton Kimpton presented Ms Savage with her award.

Ms Savage is currently in London as a Pegasus Scholar, working in barristers’ chambers for six weeks.


Chris Moore and Michael Battersby

Meredith Connell Most Innovative Lawyer Award – Michael Battersby Auckland lawyer Michael Battersby won this award for his unique service, the Business Growth Law. Chris Moore, a Meredith Connell partner, presented Mr Battersby with his award. Business Growth Law was recently registered with NZTE on the Business Capability Voucher Scheme (now approved by the Government). Business Growth Law aims to provide legal foundations for sustainable and stable business growth by identifying business goals and the path to them. It is based on Mike’s 20 years in business law and his involvement in a successful project which saw a four-person software company grow to become a large multi-national that is now listed on the ASX. The programme was developed by analysing 70 different files and isolating out areas that provide the foundation for “the critical path to world domination”. The inspiration for the programme came from the way software companies do business – developing a product that can stand alone. Lawyers have a lot to contribute to business, but clients often turn to their accountant for advice on investment instead of their lawyer. Business Growth Law provides lawyers with a way to interface with clients who don’t necessarily see the benefit of commercial lawyers.

Minter Ellison Rudd Watts Outstanding Contribution to the Profession Award – Antony Mahon Immediate past chair of the New Zealand Law Society’s Family Law Section, Antony Mahon received this award for the tireless work he has done on behalf of the section’s members

Peter Rowe and Antony Mahon

and for the enhancement of the Family Court. Minter Ellison Rudd Watts partner Peter Rowe presented Mr Mahon with his award. Professionally, Mr Mahon has for 25 years specialised in all areas of family law, including: child law, relationship property, trusts, protection of personal and property rights, family protection and testamentary promises cases. Mr Mahon has been a member of the Family Law Section Executive since 2007. Mr Mahon is regularly involved in appeal work from the Family Court and has successfully taken cases on appeal to the High Court, Court of Appeal and Supreme Court and has contributed significantly to the jurisprudence of family law in the area of child appeals. Mr Mahon organised and presented at the Family Law Symposium on the review of the Family Courts, held at Parliament on 3 June last year. The former chair of the Auckland Family Courts Association, he copresented the NZLS CLE seminar on Child Development in 2004. Mr Mahon is on the Faculty for the NZLS CLE Lawyer for Child training and has co-presented that training since 2007. He chaired the Advanced Lawyer for Child seminar in 2008. He is a tireless mentor of young lawyers, and is always ready and willing to assist the up and coming generation.

NZLS Auckland Branch – Russell McVeagh Lifetime Achievement Award – Ian Haynes An immeasurable contribution to the legal profession over 50 years saw Ian Haynes bestowed the NZLS Auckland Branch – Russell McVeagh Lifetime Achievement Award. Russell McVeagh partner Fred Ward presented Mr Haynes with his award.

Fred Ward and Ian Haynes

Just one measure of Mr Haynes’ service to the profession is the number of high-level positions he has held. He has been President of the New Zealand Law Society, a Law Society Board member, President of the Auckland District Law Society and a member and convenor of the Law Society’s Costs and Conveyancing Committee. One of the many notable contributions Ian made while NZLS President was to initiate and promote the national law society reform model. Mr Haynes continues to serve the profession as a member of the Law Society’s Property Law Section Executive, Chairman of College of Law New Zealand and Chairman of the Spencer Mason Trust. Through his service, Mr Haynes has been instrumental in enhancing the image of the legal community locally and nationally. He was one of the principal architects of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, and continues to advise the Law Society on the application of those rules and their principal Act. He has, on behalf of NZLS, prepared various submissions on property law bills and legislation, as well as having appeared before Parliamentary Select Committees and the Law Commission to support those submissions. Mr Haynes has also led a number of NZLS travelling seminars on professional standards and was the inaugural Judicial Conduct Commissioner. Mr Haynes is one of the 30 distinguished members of ADLS Inc, and in 2000, was made an Officer of the New Zealand Order of Merit for services to the legal profession. He is also a member of the LAWASIA Council and Executive Committee and an inaugural Fellow of the College of Law Practice Management. LT

LAWTALK 797 / 8 JUNE 2012



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 The usual editorial discretion applies.

Tim Jeffcott has joined Hamish Fletcher Lawyers in Nelson as a principal, heading the litigation team. Tim specialises in civil litigation, including commercial litigation, disputes resolution, technology and corporate law. He will assist with relationship property and employment law. Tim served three years as a Disputes Tribunal referee at the Auckland District Court.

Brett Carter has been appointed to the new role of principal counsel (informed consumer) at the Commerce Commission. Brett, who has 12 years’ experience in commercial and criminal litigation, will lead the commission’s consumer law legal team. Brett joined the commission in 2006, first as legal counsel and since 2008 as senior legal counsel. David Blacktop has been appointed in the new role of principal counsel (competition) at the Commerce Commission. David will lead the commission’s competition law legal team. David has joined the commission from Bell Gully, where he was a senior associate in the competition and regulatory law team.

Chris Dearsley has joined Wynn Williams as a solicitor in the commercial team and Richard Hargreaves has joined the firm as a law clerk in the insurance team. Wackrow Williams & Davies Ltd has promoted Bernadette Arapere to a director of the firm. Bernadette (Ngati Raukawa ki te tonga, Ngati Tuwharetoa, Ngati Maniapoto) was formerly a historian at the Waitangi Tribunal and for iwi groups. She joined Wackrow Williams & Davies in November 2004 and provides advice on civil litigation, Treaty of Waitangi litigation and negotiations, property, trusts and Māori land.


LAWTALK 797 / 8 JUNE 2012

Hamish Evans was recently appointed chairperson of Young Hunter. Hamish is a partner in the civil and commercial litigation team. He practises civil and criminal litigation with a focus on employment, medicolegal, insurance and insolvency law. Simon Graham and Daniel Weatherley have been promoted to senior solicitors at the firm. Simon is in the civil and commercial litigation team providing assistance

with employment, insolvency, immigration and insurance law issues. Daniel is also part of the commercial litigation team. His civil practice includes insolvency, receivership, debt recovery, consumer law, negligence, insurance and judicial review. Justine Joseph has joined Young Hunter’s property and commercial law team, based at the Redcliffs office. Justine advises on a wide range of transactions from residential and rural conveyance through to small business work, leasing and trust issues. Deborah Riley has joined Brookfields Lawyers as a solicitor. After graduating in 2006, Deborah worked in an administrative and research position at the former Auckland City Council, then travelled to the UK where she held a number of legal advisory roles with local authorities. Deborah is in Brookfields’ environmental and public law team, working with public and corporate clients on resource management and governance matters. Lee Scott (nee Murray) joins Legal Personnel as a consultant to recruit solicitors and legal support staff for

PEOPLE IN THE L AW private practice and in-house roles. Lee holds an LLB/BA from Auckland University and comes with experience working both as an employment lawyer and legal recruiter.  Her most recent role was as the national HR Recruitment Advisor with Bell Gully in Auckland.  Before this, she worked in London and Paris recruiting lawyers at all levels for US multinationals.

Lavanya Dunraj and Toni Field have joined Fencible Law Ltd. Lavanya joins the firm with 12 years’ New Zealand legal experience, with the past eight years having been in private practice as Botany Law. Before this, she had many years’ experience in practice in South Africa. Her main focus at Fencible Law will be family law. Toni is a registered legal executive with 15 years’ experience. Her primary focus with the firm will be property law. In “On the move” in LawTalk 795 (11 May), we ran an item about Simon Barr and Karen Grau being promoted at Luke Cunningham & Clere and Sally Carter joining the firm. Unfortunately the name “Luke” was omitted on the first reference to the name of the firm. We apologise for this error.

PEOPLE Three lawyers are among the latest round of State Owned Enterprise (SOE) board appointments, announced by SOE Minister Tony Ryall on 11 May. Auckland lawyer Raewyn Lovett has been appointed deputy chair of Quotable Value. Ms Lovett is a partner of Duncan Cotterill. Wellington barrister Jane Meares of Clifton Chambers has been appointed to the board of the Electricity Corporation of New Zealand. Ms Meares was formerly with Treasury and a partner of Bell Gully. The former senior equity partner and head of the IT and telecoms team at DLA Piper in the UK, Danelle Dinsdale has been appointed to the board of Crown Fibre Holdings.

About to be built, Wynn Williams House as drawn by the architects.

Law firm news Wynn Williams is moving back into the Christchurch CBD. Wynn Williams House will be constructed on the corner of Montreal and Hereford Streets, the site of the iconic St Elmo Courts building. The firm has been working with the owners, Richard and Ashton Owens, to help them get this exciting project off the ground.  “As one of Christchurch’s first legal firms, we wanted to be one of the first to move back into the central city,” the firm says.  The new building will have basement carparking, ground floor retail, plus four floors and a penthouse for office space.  The building will feature the latest earthquake reengineering, including base isolation and laminated timber beams giving a classification of 180% of the (new) building code. 

Sharp Tudhope made history 115 years ago as the first law firm to open its doors in Tauranga and made history again recently as the firm moved into new offices in what is tipped to be the Bay of Plenty’s first official Green Star rated commercial building. The move from Grey Street to the third and fourth floors of the new building on Devonport Road took place on 28 May. Henry Sharp opened the first office in Spring Street in 1896. That same year, Archibald Tudhope opened offices on Willow Street and in the absence of high-tech machinery, the two organised a few bulls to literally pull their two offices together. Over the years, the company has resided in just three premises, spending 30 years in its Grey Street offices. Sharp Tudhope also has a second office in the Auckland CBD. LT

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LAWTALK 797 / 8 JUNE 2012



Justice Blanchard bids farewell to the bench By HANNAH GRANT The bench will not be the same without Justice Sir Peter Blanchard.

short time – No 1 Downing St – and sat with law lords listening to cases from New Zealand, Mauritius and the West Indies.

Justice Blanchard’s retirement from the Supreme Court marks the end of a distinguished judicial career. The knowledge and experience that Justice Blanchard bought to the judiciary makes his seat hard to fill.

A member of the Law Commission from 1990 to 1993, Justice Blanchard conceptualised and worked on the development of a new property law act. “When I left the commission, I continued to work on the Act part-time, mostly in my holidays to get it finished. Across my career, this is the thing that I am most proud about as a few years later it [Property Law Act 2007] was enacted,” he says.

Justice Blanchard entered the profession by obtaining not one, but two LLMs: the first from Auckland University and the second from Harvard, where he gained a Fulbright Scholarship and a Frank Knox Fellowship. He recalls his time studying at Harvard with fondness. “It was a wonderful experience. It was a process of measuring myself against the best that America and the rest of the world could produce. “It also turned my legal world upside down for a while because the solutions that the Americans came up with were different to what New Zealand would come to for the same problems. “It taught me to look at and think differently about the law. The solutions were not necessarily better ones but perusing them was a valuable process,” he says. He left American shores for England, where he worked at the prestigious firm Paisner & Co (now Berwin Leighton Paisner) in London. “They would send me off to Bermuda and the Canary Islands to negotiate multimillion pound contracts,” says Justice Blanchard casually. A year in England was enough for Justice Blanchard though. He returned to his motherland to be a partner at Simpson Grierson in 1992. He was appointed to the Court of Appeal in 1996 and to the Supreme Court in January 2004, which, he says, was very challenging. “I was a relatively junior judge and had come to the bench with no litigation experience. In fact, I was the first New Zealand judge to be appointed from a commercial background without being a litigator. It was challenging and I had to learn fast.” Our processes of transferring lawyers to


LAWTALK 797 / 8 JUNE 2012

Justice Blanchard

It was a wonderful experience. It was a process of measuring myself against the best that America and the rest of the world could produce.

JUSTICE BLANCHARD the bench are a little more mysterious than the English who have a more formalised system of appointing judges, says Justice Blanchard. “I’m not entirely sure that it works better than our system, though, because if you look at an issue such as having a more appropriate balance of females on the bench, England hasn’t produced the goods, whereas we have,” he says. Justice Blanchard was appointed a Privy Councillor in 1998 and sat on the Privy Council in 2000 for a month. This meant he had one of the most famous addresses in the world for a

Another highlight of his career, Justice Blanchard explains, was appearing as one of the counsel for the Crown before the Waitangi Tribunal on the Ngāi Tahu claim. “It involved detailed exploration of the history of what occurred between 1840 and 1860 when extremely large land purchases occurred. It was extremely fascinating to learn about the Māori world which at the time I knew very little about.” Justice Blanchard was awarded the DCNZM (Distinguished Companion of the New Zealand Order of Merit) in 2005 for his services to the judiciary. He was re-designated a Knight Companion of that Order in 2009. Justice Blanchard does not accept the recent media coverage of “higher than normal” complaints about the judiciary. “You have to look very carefully at the complaints, as a substantial proportion are coming from the same people. It is a misconception that there are more complaints if you look at the substance of what’s going on.” And of giving it all up: “I’m happy to be retiring in Auckland, largely because I am at heart an Aucklander. It’s where my mother still lives and our children and grandchildren live. I’m not making any commitments for at least six months apart from relocating and taking a good holiday,” he says. A final sitting to mark the retirement of Justice Blanchard was held in the Supreme Court in Wellington on 7 June. LT

LAW REFORM REPORT Trial process reforms could erode an accused’s rights The Law Society is concerned that proposed reforms in the Law Commission’s issues paper, Alternative Pre-Trial and Trial Processes: Possible reforms, would erode an accused’s rights within the criminal justice process. The difficulty with any reform that promotes protection of the complainant within the criminal justice process, the Law Society says, is that the integrity of the process itself is compromised. It is a long standing tenet of the New Zealand criminal justice system that the accused is entitled to a fair trial, says Jonathan Krebs, convenor of the Law Society’s Criminal Law Committee.

Recent submissions: The Law Society has recently filed submissions on: • Alternative Pre-Trial and Trial Processes: Possible reforms; • Financial Markets Conduct Bill; • Review of the Judicature Act 1908 – Towards a Consolidated Courts Act; • Prisoners’ and Victims’ Claims (2012 Expiry and Application Dates) Amendment Bill; • Legal aid fixed fees: draft family and ACC forms; • Marine and Coastal Area (Takutai Moana) Act 2011: proposed policy for regulations; • Productivity Commission Investigation into Strengthening Economic Relations between Australia and New Zealand; and • Legal aid disbursements policy review. The submissions are available at publications_and_submissions/ submissions.

“We need to have a serious look at these proposals which would make fundamental changes to processes that have been followed in our country for a very long time,” he says. The Law Society is also opposed to the proposal that would see a judge making a decision before a trial as to whether the evidence is sufficient to go to trial. “This would mean a single person would decide what evidence they wanted to hear, and would then decide the outcome of the case. “This is a fundamental departure from the common law adversarial tradition which reflects important values that inhere in our society and legal structures,” says Mr Krebs. The Law Society supports the Law Commission’s proposal that an alternative resolution process outside of the criminal justice system would resolve certain sexual offence cases. However, the Law Society says, the process would need further consultation around the specifics before introduction.

Financial Markets Conduct Bill still a work in progress The Financial Markets Conduct Bill is a wholesale review of the legislation underpinning New Zealand’s financial markets and will have a significant impact on business and the economy, the Law Society notes in its submission on the Bill. Given the post-GFC litigation still working its way through the courts, the Law Society believes there should be a review of the new legislation soon after it comes into force. The review would consider whether the legislation is working as intended and ensure that lessons from current court cases can be incorporated. In its submission, the Law Society recommends that further work is done on liability and enforcement issues. The absence of specific limitation

periods for seeking compensatory orders and pecuniary penalties is also noted, and the Law Society says shorter limitation periods should be carried over from the Fair Trading, Securities and Securities Markets Acts. The Law Society is seriously concerned about the (rebuttable) presumption that materially adverse misstatements have caused a product’s loss in value. “This provision is novel and unjustified, and is a fundamental departure from civil law norms. The Law Society strongly urges the removal of clause 480 from the Bill,” says Stephen Layburn, convenor of the NZLS Commercial & Business Law Committee. The Law Society says it also opposes the potential extension of civil liability for professional advisers in connection with securities offers (such as aiding and abetting provisions), on the basis that this would increase compliance costs and undermine professional relationships.

Legal aid update Provider contracts: the Ministry of Justice agreed to hold a further round of good faith negotiations with the New Zealand Law Society to improve the workability of the new legal aid provider contract. Under the agreement, a new version will now need to be finalised by 8 June. Family & Civil (ACC) Fixed Fee Forms: the Law Society commented at short notice on draft forms for family and ACC legal aid fixed fees, and asked that reasonable time be given in future, to enable genuine consultation. Disbursements policy: the Law Society commented on a review of the legal aid disbursements policy, and opposed a number of the proposed changes.

NZLS Law Reform Committee update The Law Society’s Law Reform Committee held its annual meeting in Wellington on 8 May, and discussed NZLS law reform activities over the

LAWTALK 797 / 8 JUNE 2012



Law Society success on key EEZ Bill submissions The Local Government and Environment Committee’s report back on the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill includes key changes that were recommended by the Law Society in its submission on the Bill at the beginning of this year. The changes include the removal of provisions that would have enabled economic development to be weighed against environmental effects; and provision for a greater range of New Zealand’s international obligations. “The Law Society’s submission was positively received at the hearing, and the committee’s report confirms that key recommendations have been given effect,” says Environmental lawyer Robert Makgill, who presented the Law Society’s submission to the committee. The Law Society had warned that allowing economy to override environment when making decisions on marine consent application would be contrary to the Law of the Sea Convention 1982 (LOSC) and the principle of sustainable development. The Law Society submitted that to allow economy to override environment was contrary to the purpose of the Bill, which is to “achieve a balance between the protection of the environment and economic development”. The submission pointed out that the

requirement to balance environmental protection and economic development has been defined by the International Court of Justice in a number of major decisions as meaning sustainable development. Mr Makgill says that “sustainable development is not about weighing environmental effects against economic outcomes and finding which one comes out on top. It is a much more complicated exercise, relying on science and other assessments to achieve a balance or equilibrium between environment and development.

This is good news for decisionmakers, applicants and potential submitters, because the Bill is much more aligned with existing domestic legislation.

Robert Makgill past year and significant law reform projects for the forthcoming year. Sir Grant Hammond, President of the Law Commission, was a guest speaker and outlined the commission’s work programme and law reform issues of interest to the committee.

Coming up The Law Society is currently preparing submissions on numerous bills and government discussion documents. Lawyers are welcome to contribute comments to the Law Reform Committee, specialist committees and sections preparing the submissions. For a full list of upcoming submission deadlines and information about how to participate, visit http:// reform/work_in_progress. For more information on NZLS law reform activities, contact vicky. LT


LAWTALK 797 / 8 JUNE 2012

“Of course, that does not mean that economic development will not outweigh environmental effects in certain situations. Often this comes down to a question of the scale of adverse environmental effect and the ability to mitigate. “Provision under the Bill for a simplistic weighing exercise would, therefore, have been inconsistent with the LOSC and the principle of sustainable development under international law,” Mr Makgill says. The committee certainly appears to have heeded the Law Society’s concern with the report, stating that “the policy intent behind [the Bill] was not to create an overriding economyversus environment test or a costbenefit analysis of the economic and environmental implications of an application.” While provision for the weighing

exercise has been removed, the Law Society’s submission that the purpose of the Bill should be defined as either sustainable development or sustainable management was not accepted. However, Makgill says, “the purpose of the Bill is now clearly one of sustainable development. This is good news for decision-makers, applicants and potential submitters, because the Bill is much more aligned with existing domestic legislation. In particular, it enables integration of decision-making between the EEZ and our territorial waters, which are regulated by the Resource Management Act 1991.” The Environmental Protection Agency (EPA) is now directed to a number of matters that need to be taken into account when considering consent applications, including environmental and economic matters. This reflects the Law Society’s recommendation that these matters should be provided for separately as matters to be considered by the EPA when considering a consent application. Recommendations were also made to amend the Bill to refer more generally to New Zealand’s international obligations, rather than solely LOSC. It now refers to “various international conventions” and expressly includes the “Convention on Biological Diversity”. The report notes that there was some disagreement between the committee as to the final wording of the relevant clause. “The recommended wording has been watered down, and there is no longer a requirement for decision-makers to act consistently with international law,” Mr Makgill says. “Rather, the Act is to be interpreted under international law. This change seems reasonable, as it recognises that questions of whether decisions under the Bill are consistent with international law is a legal question and really a step too far for those who will be required to exercise powers and duties under the Bill on a day-to-day basis.” On 22 May, the Minister for the Environment released a discussion document on regulations under the Bill for public consultation entitled Managing our oceans: A discussion document on the regulations proposed under the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill. Submissions close 20 June 2012. LT

EFFECTIVE PRACTICE Practice management software phaseout raises concerns Originally developed in Tauranga, LAWbase has been one of New Zealand’s longest-established legal practice management systems. It is also probably the biggest, with over 500 law firms claimed as users. The system was purchased from the original owner, Baycom Software Laboratories Ltd by CCH in May 2002, which later sold it to LexisNexis in June 2008 for $2.2 million (Financial Statements of LexisNexis NZ Ltd for year to 31 December 2008). For some time LexisNexis has been working to cease support of LAWbase and offer alternative practice management software systems. This has resulted in concern among quite a few smaller law firms who feel they are quite happy with LAWbase and do not want to take up one of the alternatives. LexisNexis has told LAWbase clients with over 15 users that they will no longer support the system from the end of March 2013. They have all been offered the chance to move to a system called Affinity. Smaller firms are to be offered another system called PCLaw and LexisNexis says the timetable for this will be announced probably in the second half of 2012. The concerns cover matters such as a perception that Affinity is unnecessarily complex, suspicion over likely future price rises and costs (law firms are currently being offered discounts if they move), the replacement of a New Zealand-built system with one from overseas and the disruption caused by having to introduce a new system. Some law firms are reportedly planning to stay with an unsupported LAWbase and hire private contractors to keep it going. “Affinity has so many things that it can do that you wouldn’t want to do,” one lawyer who prefers the simplicity of LAWBase told LawTalk.



LexisNexis is running workshops around New Zealand at present to answer many of the questions being asked by LAWBase users. The company’s New Zealand Head of Strategy and Customer Discovery and Innovation, Grant McKenzie, said LexisNexis had decided to “sunset” LAWBase for a variety of reasons. The main one was around the technology that it was built on. “The underlying programming is outdated and no longer in regular use,” he said. “Further development and integration of LAWBase is not feasible with the advancement and upgrades of the base technology.” This would make the maintenance fee prohibitive and unacceptable, especially in the current economic climate. He described LAWBase as like a spider’s web: “Every time you go to fix something in the LAWBase code, something else will break. This is the fickle nature of dealing with legacy programs.” Aware of the dissatisfaction, LexisNexis says it has given customers plenty of advance notice. It also stoutly defends Affinity and PCLaw, the alternatives being offered. Mr McKenzie says Affinity is a Pacific product (not American as some lawyers believe) developed with local needs in mind. PCLaw is from Canada, but LexisNexis is New Zealandising it to fit this market. Worldwide PCLaw has 35,000 users and Mr McKenzie says the benefit will be not just local R&D but its global R&D for major functional changes. Whatever happens, the changes around LAWBase mean there is a minor revolution starting to take place in New Zealand’s legal software market, with over a quarter of our firms having to make a decision on a very important part of practice management. LT

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Global law firm networks provide value The rise of the global law firm network has been a phenomenon of the last two decades. Mergers and acquisitions apart, law firms which want to preserve their independence yet provide a fuller international service to their clients have the option of joining – or being invited to join – one of a number of international law firm networks. Many of the networks began as a grouping of law firms in a particular region. These have then spread throughout the world. AVRIO Advocati, for example, started in 1987 with the merger of two European law firm groupings. It has now grown to include members in locations as diverse as Argentina, Australia, India and Hong Kong. The State Capital Group began in the United States in 1989 as an alliance between the law firms of 17 former State Governors. While it retains a strong US focus, it has expanded throughout the world to 84 countries and includes Christchurch firm Wynn Williams. Membership is usually by invitation and often results from contact or a past relationship with a member firm. Some memberships are non-exclusive. World Services Group says its members can belong to groups, associations, alliances, networks or be part of national or international firms and companies. New Zealand firm Simpson Grierson belongs to two networks (Lex Mundi and Pacific Rim Advisory Council) – the only New Zealand firm with multiple membership. Some networks actively seek law firms in a particular jurisdiction. At present, for example, the International Business Law Consortium says it has a particular interest in adding a suitable member firm in New Zealand (along with 11 other countries). There is obviously a membership fee. Information on the size of these is perhaps understandably difficult to find. However, Mackrell International, which groups 79 firms in 52 countries, lists its annual fee. For a firm with 31-40 lawyers it costs £4,000 a year to belong. It is not known if this is low or


LAWTALK 797 / 8 JUNE 2012

high for other networks. One of the longest-standing New Zealand memberships is the one Auckland mid-sized firm Martelli McKegg has had with Meritas. Meritas was founded in 1990 and Martelli McKegg has been a member since 1991/92. The network brings together 171 firms in 75 countries and membership is by invitation. Partner Andrew Nicoll says the benefits of membership have more than paid their way over the years. “It’s a very good referral source, based on the idea that each firm is a safe pair of hands,” he told LawTalk. Because all members tend to be independent, medium-sized firms in their market, there’s a shared understanding of client needs. “We have an expectation that a member firm we would refer someone to would have a similar way of dealing with their clients.” Martelli McKegg participates in an annual regional meeting – normally held in Australia, but in New Zealand this year – and Mr Nicoll was able to experience the delights of New Orleans in 2011 when he attended the full Meritas AGM. Being in a friendly gathering of lawyers from all over the world gives a great chance to experience other people, other ideas and other ways of doing things. “You get out of it what you put into it,” says Mr Nicoll. Meritas differs from many of the networks in that firms are required to evaluate the quality of work with each referral they make. Andrew Nicoll says this is a great way to see how the value of the firm’s work is perceived. A visit to the Meritas website shows that Martelli McKegg is performing very close to the best possible rating for the quality and cost of its referral work. John Heimsath, a partner at Auckland commercial firm Heimsath Alexander, is enthusiastic about the benefits from membership in the 70-firm World Link for Law. This joins New Zealand to 46 other countries. Mr Heimsath says Heimsath Alexander initially joined because of its strong links with an Australian member. A trip to the network’s 2011 conference in Sydney has resulted in the development of quite a few referrals and connections. Duncan Cotterill is a member of TAGLaw, which brings together over 140 firms in 82 countries. Founded in 1998 and invitation-only, it is one of the largest networks. Duncan Cotterill partner Bruno Bordignon says one of the biggest advantages of membership is “being able to connect clients

internationally to law firms that you know and have met”. Mr Bordignon says members of the network catch up on a regular basis. “You also know that you will get priority treatment for any matter where you contact a member firm.” The TAGLaw connection has also been used to help Duncan Cotterill staff who have gone to work in the United Kingdom, and Duncan Cotterill has been involved in programmes involving law clerks from other TAGLaw firms. Anthony Harper, which is a member of 145-firm ALFA International, has developed particularly strong relationships with the five Australian firms which also belong. They meet regularly, and the latest such gathering was hosted by Anthony Harper in Auckland on 24 May. Delegates from the six firms joined business leaders and advisers for a special ALFA International/CERA briefing on the impact of Canterbury’s earthquakes on the New Zealand economy. Corporate Advisory Partner Paul Hartland says Anthony Harper has been a member for over three years and has found it a valuable network to be part of. “It helps us obtain quality assistance for our clients who are looking outward. We have real confidence in knowing people in most of the firms to whom we make referrals and knowing we will get good competent service from members, who prioritise for you.” While there is not a requirement to use members exclusively for referrals, Mr Hartland says his firm gets virtually all of the inbound New Zealand work from ALFA International members. The six Australasian member firms have developed a policy for staff exchanges, and Anthony Harper has used the network to help its staff find work offshore and also to assist lawyers coming to New Zealand. Mr Hartland places a lot of value on the way the network enables Anthony Harper to maintain its autonomy while still developing strong relationships with other firms. “This has enabled us to remain nimble and focused without the complexities and layering you’d have if you were part of a large, integrated international law firm.” The following table excludes law firm networks which are focused on one region (such as Europe) or have fewer than 20 member firms. Nailing down the exact number of firms can be difficult, but the information in the table is based on research undertaken in May 2012 from the websites of the

EFFECTIVE PR ACTICE organisations concerned. Branches or multiple offices of a law firm are not counted, but all countries where a firm is represented are.

New Zealand law firm networks New Zealand has three well-established networks of independent firms which have formed relationships to benefit through combined purchasing, marketing, referrals and in a number of other areas. The largest is Napierheadquartered NZ LAW Ltd, which has 61 member firms. Law Alliance New Zealand (also based in Napier) has 35 member firms, and Lawlink (with its head office in Auckland) has 18 member firms. With around 1950 law firms in New Zealand, that means about 5% are in one of the three local networks.

Exceeding cost estimates “Every solicitor will encounter, in one way or another, the kind of problem which gives rise to this appeal. The solicitor is instructed to conduct certain litigation on the client’s behalf. He gives his best estimate of the cost of doing so. He asks for a payment on account. The litigation becomes more complicated than had been envisaged. The estimate is exceeded. More money is requested on account. The client is by now dissatisfied with the service he has been receiving and believes that the costs are excessive and that the solicitor is achieving nothing. The fractious relationship is terminated and the solicitor’s bill is assessed.” So begins the judgment of Lord Justice Ward in Cawdery Kaye Fireman & Taylor v Minkin [2012] EWCA Civ 546, decided on 1 May 2012 in the English Court of Appeal. His decision (with which the other members of the Court agreed) considers the interesting question of whether a firm of solicitors was entitled to suspend the work it was carrying out in accordance with its terms of business because the client had failed to pay. The firm’s terms of business allowed it to suspend or terminate its services if the account was overdue “without reasonable justification”. Lord Justice Ward wasn’t convinced that even though the bill exceeded the firm’s estimate that was reasonable justification. The terms of business made it clear that estimates were not intended to be fixed or binding and that other factors might mean that the estimate would be varied from time to time. Hopefully standard stuff… LT




NZ members

Name of NZ member





Hesketh Henry

ALFA International




Anthony Harper





Euro Juris International












International Alliance of Law Firms




International Business Law Consortium




International Network of Boutique Law Firms




Ius Laborus




Lex Mundi




Simpson Grierson

Mackrell International









Martelli McKegg

MSI Global Alliance




Keegan Alexander





Lowndes Associates

Pacific Rim Advisory Council




Simpson Grierson

State Capital Group




Wynn Williams





Duncan Cotterill





The Interlex Group




Shieff Angland

The Law Firm Network




Burton & Company

US Law Network Inc




World Law Group




World Link for Law




Heimsath Alexander

World Services Group




Minter Ellison Rudd Watts

Fortune Manning

McVeagh Fleming

*Law and accounting firms, 1 NZ law firm belongs and 2 accounting firms.

Confidential Electoral Roll The Electoral Enrolment Centre is reminding the legal profession that there is an Unpublished Electoral Roll for clients who need to keep their personal details confidential for safety reasons. The roll can be viewed only by the Registrar of Electors for the electorate the person is enrolled in. This Unpublished Electoral Roll allows people to participate in the electoral process without being concerned that their contact details will be publicly available. Application forms to go on the roll, along with forms to enrol as an elector, are available from any PostShop, by

calling 0800 ENROL NOW (0800 36 76 56) or at A copy of a protection or restraining order, a statutory declaration from a member of the police, a letter from a barrister or solicitor, or a letter from the Women’s Refuge will need to be included with the application to provide evidence of the applicant’s situation. Once approved, people stay on the unpublished roll until their circumstances change. They need to advise their Registrar of Electors if their situation changes and/or if they move house or change their name or occupation. LT

LAWTALK 797 / 8 JUNE 2012


How to get the ‘real’ work done By Robyn Pearce* It’s amazing how much time can be taken up doing everything but the real work, as Deirdre, a senior partner of a successful law firm, recently reminded me. “Robyn, it’s Friday, it’s 5:50pm, my staff have all left for the weekend, phones are still ringing, and a stack of work a mile high glares at me. There’s so much to do, I feel like I’ve got the speed wobbles. And it’s been going on forever. “If that weren’t enough, it seems like I hardly see my kids, and I never get time for me. I rush home for the nanny at 7pm, and once I’ve bundled them into bed I’m back to work on my home computer. And I’ve not darkened the door of a gym for so long I doubt I’ll remember the difference between pulldowns and push-ups. “I want a life too! HELP!” And so we set an appointment. “Tell me about your workflow,” I asked. “I do believe in being here for my staff,” said Deirdre. “It’s an open door policy round here.” As soon as she said that, I knew I had one answer. In my opinion, that particular management technique is the cause of horrendous amounts of workrelated stress and poor productivity. Problem is, the team start to rely on a boss who’s always available. Before they know it, many bosses who run such a system end up doing the work of their team. If competent people keep interrupting you with questions they should be able to handle, ask them to come with two solutions every time they come with a question. Pretty soon you’ll find the interruptions have reduced. If they’ve had to work out the answers before they come, they’ll soon realise they don’t need to interrupt you for what amounts to a ‘rubber-stamp job’. If you’re too quick to supply the answer, you encourage laziness and dependency and, after all, it’s human nature to take the easy road. These kinds of people have been rewarded in the past for it, so why wouldn’t they wear out your carpet asking questions? It saves thinking!


LAWTALK 797 / 8 JUNE 2012

Look at each person in your team and consider what tasks they could or should be doing and assess if they are. Many executives don’t use their assistants effectively. When we do a task we could delegate to another who’s paid a lesser rate, we effectively pay ourselves at that lower rate (and it’s easy to slip into old habits). Do the maths! Do you need to take every phone call personally? Ask your PA to regulate the calls and only put through urgent ones. If the caller needs something sent to them, a quick email from the PA to you with the required action takes up a lot less time than a lengthy conversation that will also distract you from what you are currently working on. Since our meeting, things have changed dramatically, and for the better for everyone. First thing Deirdre meets with her PA, who now handles more phone calls, makes most of her appointments, and shields Deirdre from many more interruptions. This may seem obvious, but the process constantly needs to be revisited. The other short early morning meetings are with her direct reports. She makes sure they’ve got their work sorted for the day and takes any questions. Then, unless it’s a crisis, she’s instructed them now to save further questions until later in the day. No more wandering in with “just a quick question”. Also she now doesn’t accept morning

meetings with clients (again, unless it’s an emergency). It’s not hard to do. The PA just says she’s in meetings, and she is – with herself, doing top level work for clients. For many of us it’s our most productive time. Use it for the hard work, the creative work, the thinking work. Result? Staff are more focused and take more personal responsibility. Work output for all of them has increased, interruptions have dramatically reduced, and it highlighted very poor habits of one staff member, who left shortly after these steps were set in place. Deirdre’s now a consistent gym attendee, takes regular lunches and looks far more relaxed (despite a big work load). Will this work for you? Not everyone reading this article can control interruptions, (and there are many more strategies I could suggest) but if you’ve got the opportunity, block out some quality time every day for tasks that need concentration. Of course there’s some value in ready access to advice from seniors, but with sensible controls. Let’s declare war on unrestricted “open door” policies! *Robyn Pearce, who is based in Auckland, is a time management consultant and has been helping people for over 20 years. For more strategies on effective time management go to

The Family Courts Early Intervention Process By Judge Peter Boshier It is two years since the Family Court launched its Early Intervention Process (EIP). A review is timely. The hallmarks of EIP are firstly triage on receipt of a Care of Children Act application to find out what it is about and how it is best handled. It then enters either the “urgent” or “standard” track. If it is an urgent track case, it will be directed to a judge immediately and will then be handled within strict timeframes and solely by judges until conclusion. On the other hand, if the case is directed down the standard track, it proceeds through a number of events without being referred to a judge and will only receive judicial attention at a Rule 175 conference, in the event that alternative dispute resolution has not been successful. The concept behind EIP was to have predictable events clearly set out and timeframes which would drive expectations. The Family Court bench has revisited the model and decided to leave it unchanged. However, there are some things to reinforce. i. In the standard track, cases should not proceed beyond counselling if no notice of defence has been filed. The

I acknowledge there are some difficulties with the EIP which I would like to see remedied. For the most part, they have their basis in the fact that EIP is not rules-based and, therefore, adherence to events and timelines is dependent on cooperation and implementation between judiciary, court administration, Family Court lawyers and litigants. Slippage in event numbers and timelines is the major difficulty that we encounter. Concerted, though not strict adherence, is proving highly productive.

correct next step is to set an application down for formal proof and to dispose of it. It is unclear that this is happening as it should as there has been an unhealthy build-up of cases in the undefended stream. ii. Lawyers for Children should not be appointed for counselled mediations unless that is felt productive and, if it is just input of the children’s views for which appointment is sought, Lawyers for Children need not necessarily attend the mediation but rather have provided those views to the mediator and then have taken a step back. iii. Urgent track cases may be appropriate to transfer to the standard track at various points, and there is the need to constantly bear this in mind at judicial conferences when counsel are considering what should happen next and how a case is best resolved. iv. Applications under the Care of Children Act continue to be the focal point of the Family Court’s work. For instance, in the last calendar year, 25,310 applications were filed. This compares with 26,561 for 2010. This generally accounts for 38-40% of the Family Court’s workload. v. Latest statistics on Family Court professional expenditure shows that, from having peaked in the 2010/11 year, we are now firmly on the way down. In this respect, expenditure for the last four years is reflected in the following table:

I hope that in the present Review of the Family Court and as court processes are considered and refined, the EIP is largely retained but given a firm rules base. I would like to see events formalised in terms of their scope and timeliness, just as so many other features of Family Court legislation prescribe. Judge Peter Boshier is the Principal Family Court Judge.

*The figures above are rounded to the nearest $1,000 therefore the summation of some subtotals does not equal the totals. The costs for 2007/08 and 2008/09 differ from information released. The figures above are sourced from the Ministry of Justice's Financial Management and Information System. Abbreviations: CoCA- Care of Children Act 2004 cases; CYPF- Children, Young Persons and their Families Act 1989 cases; DV- Domestic Violence Act 1995 cases; PPPR- Protection of Personal Property and Rights Act 1988 cases. #Specialist reports 'other case types' includes s133 Cultural Reports. This is due to the volume and costs of these reports being comparatively small. The Guardianship and CoCA total represents s133 specialist reports, which reflect the majority of specialist reports costs. In the 20010/11 total provided to the Judges on 19 December 2011, the s133 Cultural Report costs were inadvertently included in the Guardianship and CoCA total; the minor change in costs in this table show the corrected figures which are consistent with all other years.

LAWTALK 797 / 8 JUNE 2012


THE BOOKSHELF New Zealand’s publishers pump out an impressive number of legal books each year, but our output is slight when compared to other jurisdictions. Law is a fruitful area for publishers: it changes all the time, it is scattered and needs to be gathered, and it is becoming increasingly specialised. The following summary is a grab-bag of legal books or helpful reference works for lawyers published outside New Zealand over the last few months. The themes are hopefully as applicable to lawyers in New Zealand as in the country of publication. As always, the information provided is intended to assist New Zealand lawyers by giving details of new sources of legal information which may help them in their work. It does not constitute an endorsement by the Law Society. To assist with inquiries for further information, the best way to purchase or inquire about the books listed below are as follows: The Federation Press New Zealand agent is Paul Greenberg, Greene Phoenix Marketing, (021) 722 210 and the publisher’s website is at www. Hart Publishing’s New Zealand distributor is University Bookshop Ltd ( and the publisher has a website at www. where books may be purchased online (shipping is an extra charge which is calculated after products are selected). Kluwer Law International has a website at where books may be purchased online (shipping and handling are an extra charge which is calculated after products are selected). Michael Rubenstein Publishing Ltd has a website at www. where books may be purchased online (delivery is an extra charge). Oxford University Press orders can be made directly by phoning 0800 442 502 or emailing Registration in the Oxford Law Direct service will secure a 20% discount off the recommended price, free delivery and priority dispatch. The OUP website is at


LAWTALK 797 / 8 JUNE 2012

A DICTIONARY OF FORENSIC SCIENCE By Suzanne Bell With over 1,300 entries this covers the key concepts within forensic science. International in scope, it includes a wide range of specialist terms from areas such as crime scene investigation, firearms, tool marks, trace evidence and forensic computing. Entry-level web links to online resources are listed on a companion website. Includes case examples, figures and photographs. The author is Associate Professor of Forensic Chemistry at West Virginia University. (Oxford University Press, April 2012, 978-0-199594-00-9, paperback, 288 pages, NZ$33.99). AN INTRODUCTION TO AIR LAW, 9th REVISED EDITION By IH DiederiksVerschoor Regarded as one of the leading works on international aviation law, the new edition includes the latest developments. Coverage includes sovereignty in airspace, market access agreements, interairline cooperation, air carrier liability, insurance and product liability, safety regulation, international and regional organisations, rights in aircraft and aviation security. (Kluwer Law International, April 2012, 978-9041137-29-6, hardback, 456 pages, US$135.00). COMPETITION LAW IN AUSTRALIA By L Griggs Extracted from the International Encyclopaedia of Laws, it will be of particular use to

lawyers representing parties with interests in Australia. Beginning with an introductory chapter, the book then looks at substantive prohibitions and the administrative enforcement of competition law. Relevant cases are analysed where appropriate. (Kluwer Law International, January 2012, 9789-041139-16-0, paperback, 160 pages, US$92.00). CONFESSIONS OF GUILT: FROM TORTURE TO MIRANDA AND BEYOND By George C Thomas III and Richard A Leo Tells the story of how, over the centuries, the law of interrogation has moved from indifference about extreme force to concern over the slightest pressure, and back again. The authors argue that laws react to fear, and none more so than those governing the treatment of suspected criminals. (Oxford University Press, May 2012, 978-0-195338-93-5, hardback, 336 pages, NZ$61.99). CONSENT IN INTERNATIONAL ARBITRATION By Andrea M Steingruber This takes a thorough, case-related analysis of consent in international commercial and investment arbitration. Dr Steingruber includes original arguments and puts forward new suggestions with regard to the changeable consensual character of arbitration. The book also has a particular focus on problems that frequently arise in practice of international arbitration, including complex multiparty arbitration and jurisdictional questions in investment arbitration. (Oxford University Press, March 2012, 978-0-199698-15-8, hardback, 416 pages, NZ$327.99).


IN SEARCH OF JEFFERSON’S MOOSE: Notes on the State of Cyberspace

By Michael Rubenstein

By David G Post

The author is Associate Professor at the University of Witwatersrand School of Law in South Africa. She argues that certain forms of domestic violence are a violation of international human rights law. This argument is based on the international law principle that where a state fails to protect a vulnerable group of people from harm, whether perpetrated by the state or private actors, it has breached its obligations to protect against human rights violations. (Hart Publishing, March 2012, 978-1-84946357-7, paperback, 368 pages, £22.50).

Are the days of hardcopy legislation numbered? Publication of several volumes of bound New Zealand legislation each year has done its bit to keep this country’s paper industry afloat. Thomson Reuters’ New Zealand business Brookers recently celebrated its centennial after beginning in 1910 with the invention of a process for annotating the books of legislation. Now it looks like the long-awaited changes to the status of New Zealand’s printed statutes might mean they become rarer and also probably more

Professor GeorGe Williams University of new soUth wales

Graeme Orr’s new treatise on Australian electoral law is most welcome and it is likely to be the indispensable reference for decades to come. But it is far more than a reference. Wisdom, common sense, and wit are present on almost every page, together with Orr’s acute analysis and encyclopaedic knowledge of the sources. I had high expectations and Orr exceeded them.

Daniel H loWenstein emeritUs Professor, UCla law sChool

At the heart of any democratic system lie the rules of engagement, the laws that define the who, how, where and when of elections. The law can also strengthen democracy by empowering the weak and circumscribing the powerful. From the basics of elections to the unresolved problems of regulating parties and money, this book sets out the legal framework of politics in Australia. For a country with a long and proud history of open democracy and electoral experimentation, the only surprise is that until now Australia has not had a basic text on the law of politics.

David Post is I Herman Stern Professor of Law at Beasley School of Law at Temple University. Inspired by Thomas Jefferson’s efforts to have the remains of a moose shipped to him in Paris in 1787, the author explores cyberspace – what it is, how it works, and how it should be governed. Jefferson’s ideal of small self-governing and loosely linked units is used as a model for the internet and cyberspace self-governance. (Oxford University Press, March 2012, 978-0-199858-21-7, paperback, 272 pages, NZ$33.99).

antony Green eleCtion analyst, aUstralian BroadCasting CorPoration

C o v e r d e s i g n Wide open Media

LAW BOOKS IN ACTION: Essays on the AngloAmerican Legal Treatise Edited by Angela Fernandez and Markus D Dubber

mining law & policy

MINING LAW AND POLICY: International Perspectives By John Southalan

Explains the key legal issues in the regulation of mining. The book is extensively referenced with examples drawn from over 250 laws and court decisions from 20 countries, and over 700 secondary materials including books, articles and government reports. Specialist chapters examine the legal issues in mineral rights, land access and use, mine development, environmental and social issues, financial and investment issues and government agreements. (The Federation Press, May 2012, 978-1-862878-49-5, paperback, 300 pages, A$115.00). international perspectives


By Bonita Meyersfeld

Comprehensive, insightful and clear, this is undoubtedly the best book yet written on the law of politics in Australia. Not surprisingly, it comes from the nation’s leading authority on electoral law.

John Southalan The Law Of POLiTics


Orr unearths the rules that apply to elections and referenda, campaigning and political broadcasting, and political parties and money, and discusses them in the context of political practice. A chapter is also devoted to the role of courts in overseeing elections, particularly the jurisdiction of petitioning or challenging election outcomes.

elections, Parties and Money in australia

The guide extracts the main principles from the most significant employment discrimination cases in the United Kingdom and EU. It is organised by types of discrimination, remedies, defences and definitions to provide a comprehensive annual guide to developments. (Michael Rubenstein Publishing Ltd, February 2012, 9780-955822-44-5, paperback, 128 pages, £95 plus postage. May be ordered online from

This book synthesises the law on elections, with a central focus on political parties, parliamentary elections and referenda at Federal and State levels. It documents the extraordinary detail of the legislation and the array of both fundamental and obscure cases the law has given rise to.

THE LAW AGAINST WAR: The prohibition on the use of force in contemporary international law

This collection of essays explores the history of the legal treatise in the common law world. The focus is on the legal treatise as “law book in action”: an active text produced by individuals with ideas about what they wanted the world to be. The treatise is examined as a genre of legal literature in its own right. (Hart Publishing, April 2012, 978-1-84946141-2, hardback, 262 pages, £50).

A translated and updated version of a book published in 2008 in French, this aims to study the prohibition on the use of armed force in contemporary positive international law. The author is Professor of Law at the Université Libre de Bruxelles, Belgium. (Hart Publishing, March 2012, 978-1-84946358-4, paperback, 569 pages, £30).

expensive. In its Statement of Intent for the period 1 July 2012 to 30 June 2017, the Parliamentary Counsel Office has provided an insight into its longrunning project to create an official online version of our legislation.

consultation with the judiciary, legal profession, and others, we will seek to make the New Zealand Legislation website an official source of legislation (again, assuming enactment of the Legislation Bill),” the PCO says.

The PCO says the officialisation of New Zealand legislation is expected to be completed in the 2012/13 financial year.

Looking beyond the day when our online legislation is official – and thereby able to be used in court and elsewhere – the PCO says there will be potential for the Crown to make further savings at that time by reducing or removing the current subsidy for printed legislation.

Officialisation involves comparing the collection of principal legislation (in force in New Zealand as at 3 September 2007) with amendments incorporated against the original printed version of each act and set of regulations and every amendment made to them. “Upon completion, and following

By Olivier Corten

“We currently assume that there will continue to be a demand for printed legislation, but we intend to move to a print on demand at full cost model for printed legislation.” LT

LAWTALK 797 / 8 JUNE 2012


CONTINUING YOUR PROFESSIONAL DEVELOPMENT The 2012 Social Media and Mobile Apps Forum, 26-27 June, Auckland If you want to learn more about social media than what was featured in the last edition of LawTalk, then a good place to start would be the Social Media and Mobile Apps Forum in Auckland late June. Social media and mobile applications have revolutionised the digital world. They are two very separate concepts but they continue to complement each other to achieve common goals and objectives. The Social Media and Mobile Apps Forum is packed with case studies to help you adapt useful practices best suited for your firm/organisation. It will also look at any privacy issues and understanding their implications, avoiding social media public relations disasters, using mobile applications to increase web traffic for your business and harnessing the power of social media through customer engagement. PROFESSIONAL LEGAL STUDIES COURSE

“Professional, flexible and pragmatic” ED CROOK, RUSSELL MCVEAGH

“We have used the College of Law programme for our graduates for over 7 years. We have found them to be professional, flexible and pragmatic.” The College of Law specialises in practical legal training. Developed and taught by experienced lawyers, we offer the best and most flexible Professional Legal Studies courses. Make a real contribution to your career or business. Call 0800 894 172, email or visit

Workshops at the forum include a social media marketing strategy intensive which will give you the opportunity to update your social media strategy and explore new tools and tricks, look at conversion opportunities through social channels and explain social media management and analytics applications. Another will focus on social media copywriting by brainstorming fresh and interesting ways for you to engage an audience, studying successful social media advertisements and with a storytelling session dedicated to illustrate copywriting tactics specifically for social media advertising and engagement. Find out more see social-media-mobile-apps-forum. LT

Death and the Law Conference Death comes to us all. But preparing for it, or dealing with the consequences of death can be stressful for the client and complex for lawyers. Providing sound legal advice and practical assistance in these circumstances requires a thorough understanding of the law and an appreciation of practical matters peculiar to death and dying. NZLS CLE Ltd’s recent Death and the Law Conference brought all legal aspects relating to death together and was extremely well received. Conference Chair, Professor Nicola Peart says the law relating to death “is a much neglected area.” “We all die. Both the preparing for death and dealing with things after death are major issues, so I was not surprised that we had over 100 people the conference in each centre. Particularly with the complexities that arise with reconstituted families and people living until much older ages and later stage changes to wills and trusts, issues addressed in this conference were very topical.” Key issues discussed at the conference involved changes to legislation relating to death, including the Wills Act 2007, the Succession Homicide Act 2007 and the Human Tissue Act 2008 which are central to the disposal of property and use of the body. The provisions relating to enduring powers of attorney in the Protection of Personal and Property Rights Act 1988 have also been changed. The repeal of gift duty, which may mean there is no estate to dispose of and give rise to restoration claims hitherto not commonly encountered on death, was also touched on. “The presenters did a huge job with preparing their presentations and produced very practical and useful papers,” she says. Find out more or purchase the papers at www. Death+and+the+Law.html. LT


LAWTALK 797 / 8 JUNE 2012

Managing your career by making yourself discoverable! By Jennie Vickers and Lauren Hosker* “Standing on a street corner waiting for no one is power,” said poet Gregory Corso. He was writing at a time before the explosion of the net and social media but his sentiment is perfect for the change to career management that we are witnessing globally. LawTalk 790, 2 March 2012 had an intriguing short piece called The death of the CV, commenting on a Wall Street Journal Article. The message was that access to information through social media has made the traditional CV of less value. As the economy picks up and lawyers return to career planning instead of career survival, being discoverable is going to become the name of the game. Social media is the tool to provide a street corner which is more High St than Shortland St! Lawyers’ focus around social media has, for so long, been about control and restrictions, managing risk and PR disasters for clients. As a result, many lawyers themselves have steered away from having a social media presence. However, now that our clients have embraced social media as a new communications channel, it is our turn to do so, for our own personal profiles and career development. The traditional model of candidates reacting to job adverts is being added to by proactive searching by recruiters, hunting out the perfect candidate who matches all the multi dimensions their client is seeking. The prince found the foot that fitted the slipper because he went to everyone in the kingdom in person. This is clearly not an option outside of a fairy story! If your profile, your expertise and your brand value are not out there on the corner, the dream job recruiter is not going to find you even if you are the perfect fit. Social networking sites such as LinkedIn, Facebook and Twitter are all popular sites for searchers when it comes to hunting out the perfect fit. Dan Schawbel, Managing Partner of Millennial Branding in the US and founder of the Personal Branding Blog, believes that those who do not have an online presence within any of these websites will not appear to be relevant to employers, and will risk being passed

over for more “savvy applicants that have more ‘visibility’”.

am still waiting for him to write his first entry!).

None of this is to suggest that face-to-face networking is any less important. Seth Apple is a practice development manager at a US law firm and he recommends that associates and those seeking to build their careers inside and outside their firms should send out “Reverse APBs”. Instead of an APB being a call out for a missing person these APBs stand for: Attendance, Participation and Branding. Social media can again be a valuable tool in these activities and achieving the desired visibility.

4. Start asking for recommendations and testimonials of your work and add them to LinkedIn.

Becoming discoverable is less work and a lot less daunting than you might think. As an experiment, if you Google “Jennie Vickers” you get 4,630 hits. Have a go with your own name and then try these five things and search again two weeks later: 1. Have a conversation with someone you trust and talk about your work passions, your ambitions, your goals, the work you are most proud of and then listen when they reflect it back to you. Out of a good conversation will emerge your strengths and your passions then capture them in a few words or concepts which describe your expertise. 2. Get linked in with LinkedIn. If you have a profile go in, make more connections, talk about the expertise and strengths identified in step 1, add an update every day for five days about something relevant to your expertise, add some skills and accomplishments and bring your profile to life. If you are not LinkedIn then get started and do not restrict people’s ability to ask to connect to you. You can decide who you connect to but do not make it hard for people who want to. 3. Start up a blog. gives access to a free blog builder and the set-up is fairly simple. If you cannot work it out, ask your kids to do it for you and then get writing. Even my guidedog Luke has a blog, Philip Milne Dog on a diet, and Barrister that took about an hour to set up (I

5. Take a crack at Twitter by re-tweating useful information relevant to your expertise and then when feeling courageous, start to put your own useful advice out there. For many who embrace this “being found” concept, even these five simple tasks might seem daunting. “Executive as Expert” and “Attorney as Authority” are programmes which have developed out of the need to assist time-poor, media-shy business executives and lawyers make the transition from career management by reaction, towards expertise positioning, using the web and social media. The programmes were launched last year by ZeopardLaw’s sister business, recognising the challenge many New Zealand lawyers and executives faced in being proactive in managing their careers. So finally, if making yourself visible on the web street corner is not for you, then I caution you with the words of author Diana Gabaldon who said “...sitting and waiting is one of the most miserable occupations known to man – not that it usually is known to men; women do it much more often.” If you do not want to be miserable, stop sitting and waiting and get out there onto the web. *Auckland lawyer Jennie Vickers runs Zeopard Consultancy, focusing on different and improved ways of doing business including creativity and innovation, mind mapping, memory skills and creative communications, problem solving, project management, legal management and risk management. ZeopardLaw is part of the Zeopard Consultancy. Lauren Hosker is an AUT Student of Communications.

Independent Resource Management Specialist Advice, strategy, advocacy, dispute resolution for your clients Waterfront Chambers Wellington 021 803 327 or PA 04 499 6653

LAWTALK 797 / 8 JUNE 2012


District Courts Rules 2009: Amendments & Review By Judge Susan Thomas, Judge Brooke Gibson & Judge Paul Kellar of the District Court Civil Committee. In their third year of operation, the District Courts Rules 2009 continue to strive towards their objective of securing the just, speedy and inexpensive resolution of disputes. The Rules seek to meet many needs. The complexity of matters coming before the District Courts varies enormously. Furthermore, there is a vast range in the value of claims in the District Courts. In 2011 alone the value of claims ranged from $646 to $199,000. The increasing numbers of self-represented litigants provide further challenges. The underlying philosophy of providing access to justice requires a flexible response to meet those needs. Amendments to the Rules come into force on 14 June 2012. The overall scheme of the Rules remains the same. In light of the fact that a mere 1% of civil claims in the District Courts ever result in a trial, from the outset the Rules encourage information exchange between parties in preparation for a Judicial Settlement Conference. The notice of claim process and exchange of information capsules seek to enable each party to understand the perspective of the other. Often this is enough to resolve the case; a notice of pursuit of claim is filed in about 3% of cases only. The Rules do not seek to avoid litigation. The Rules do, however, cater for the reality that for many litigants, the most important factor is getting a cost-effective result without undue delay. The Rules serve this interest by bringing the parties together at a Judicial Settlement Conference. Often, this is the first opportunity the parties have had to communicate directly with each other. The Conferences are presided over by Judges with a civil designation who are trained to conduct them. The success of these Conferences is apparent by the fact that only onefifth of claims where a notice of pursuit is filed are allocated a hearing. If a Judicial Settlement Conference is unsuccessful, the focus then moves to trial. Experience has shown that by this point many of the issues have been resolved, with only a few remaining to be litigated. This is demonstrated by the fact that over twice as many simplified trials are allocated as full


LAWTALK 797 / 8 JUNE 2012

trials. Given that trial is the most costly part of the process, this narrowing of issues is welcomed by litigants. The guiding principle at this juncture is to allocate a form of trial suitable to the complexity of the case and the needs of the litigants. Of course, there are cases where trial is inevitable. The Rules have always included the ability to apply for leave to proceed under the traditional statement of claim procedure. Whether leave is given depends on a range of factors including the complexity and urgency of the case, the financial position of the parties and the quantum claimed. Since the inception of the Rules, 11 applications have been made. Seven were granted, 1 was refused, 2 were withdrawn and 1 is currently undecided. Similarly, the judge who presides over an unsuccessful judicial settlement conference may direct that formal pleadings be filed. The District Courts (General) Amendment Rules 2012 further promote the objectives of the Rules and clarify existing capabilities. They are intended to go some way towards addressing some of the concerns raised by the legal profession by recognising that in some cases early access to a process aimed at litigation might best suit the interests of the parties. Overall they reinforce the idea that the Rules provide access to justice to both those litigants with straight forward claims and those with more complex matters. Crucially, litigants may seek summary judgment much earlier in the process. This could previously only be done following a failed Judicial Settlement Conference. Under the amendments, the summary judgment procedure is now available within 20 working days after filing the Notice of Claim so as to enforce agreed settlements (mediation, dispute resolution and agreements reached at a Judicial Settlement Conference) and for Construction Contracts Act 2002 claims. For any other proceedings commenced under the Rules, apart from Part 14 appeals, an application for summary judgement may be made within 20 working days after a Notice of Response is required to be served. Where there is no response, judgment by default may be sought. The time limits for filing have been shortened. If the summary judgment application is dismissed, the court will allocate a short, simplified or full trial at the time of giving judgment and convene a Judicial Directions

Conference. A Judicial Settlement Conference may be also convened. To increase efficiency, the time periods for service and giving notice have in general been reduced from 30 to 20 working days. However, expired time periods may be extended as a new rule clarifies that expiry alone does not bring an end to proceedings. The ability to apply for default judgment has been expanded to include cases where a defendant’s response discloses no defence or contains an admission of facts. A party can now apply for costs immediately if the other party’s claim is or is treated as being discontinued. Parties now have a 10 working day window to amend pleadings if no response has been served. If a response is served, parties may amend pleadings at any point up to when a trial date is set and following that may amend with leave of the court. An amended pleading may introduce a new cause of action (unless it is statute barred) or a fresh ground of defence. There are various other changes. A short trial may now be allocated following a failed Judicial Settlement Conference. A party must provide the other party with copies of essential documents referred to in the information capsule on request. Third parties must file an information capsule. New daily recovery rates have been set. Many changes to the forms have been introduced and work on these continues. The amendments are available to view in full on www. In addition to these amendments, the Rules Committee is undertaking a general review of the Rules to gain further feedback from the profession, litigants and other stakeholders to ascertain how the stated objectives can better be met. Initial meetings between the judiciary and practitioners are already under way and surveys are planned of selfrepresented litigants. These initial meetings have so far been met with enthusiasm and resulted in constructive suggestions for improvement. Following reports to the Rules Committee, a set of proposals will be put together for wider consultation. Anyone who wishes to make a submission in respect of the Rules is encouraged to do so and should forward the submission to jeff. LT

Publications enrich our legal heritage SUPPORTING INDEPENDENT LEGAL THINKING

Law Foundation support is helping build New Zealand’s stock of highquality legal issues publications, enriching our legal knowledge and heritage.

book argues that the case needs to be seen in the context of the time.

Our support funded the recent publication of an important new book, The Good Doctor – What Patients Want, by former Health and Disability Commissioner Ron Paterson, now of Auckland University. Professor Paterson was awarded the 2009 Law Foundation International Research Fellowship, which he used to research and write the book.

What’s the Hurry? Urgency in the New Zealand Legislative Process compared the use of urgency before and after the first MMP election. Based in part on the study findings, Parliament has now adopted changes that will confine the use of urgency to times when there is genuine need to quickly progress legislation, by introducing a change that allows for extended House sitting hours as an alternative to urgency.

Launched on 6 June, The Good Doctor is published by Auckland University Press, ISBN 978-1-86940-592-2. Three recent publications we funded were short-listed for New Zealand’s most prestigious annual legal publication prize, the JF Northey Memorial Book Award. Named after a former Dean of the Auckland University Law Faculty, the Northey Award is run by Auckland University’s Legal Research Foundation. One of the three books revisited a landmark early legal case that has often been criticised for dismissing the relevance of the Treaty of Waitangi to New Zealand law. A Simple Nullity? The Wi Parata Case in New Zealand Law and History, by Professor David Williams (Auckland Law Faculty), concluded that the arguments in the 1877 case were actually much more about the relative merits of religious and secular education policies than they were about the place of the treaty. The case involved land dispute between the Wellington Anglican Church and a local iwi. In dismissing the relevance of the treaty in deciding the case, Chief Judge James Prendergast said: “So far indeed as that instrument purported to cede the sovereignty – a matter with which we are not directly concerned – it must be regarded as a simple nullity.” In recent years this view has been attacked as being symbolic of Māori neglect by settlers, the Government and New Zealand law, although Williams’

Another of the short-listed Northey award books has already led to important practical change.

The study authors, Claudia Geiringer, Polly Higbee and Elizabeth McLeay of Victoria University’s Centre for Public Law, found that urgency was often used to simply extend sitting hours rather than to deal with real emergencies. The previous “dual role” was confusing, making it difficult for the media and the general public to understand what was going on when urgency was taken. The third short-listed book has generated considerable scholarly interest in Commonwealth countries, reaching fifth in Amazon UK’s nonfiction (legal) history charts in February this year. Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire focuses on New Zealand’s early years of settlement from the 1830s to the early 1860s. To quote the publisher, Oxford University Press: “It shows how native title became not only a key construct for relations between Empire and tribes, but how it acted more broadly as a constitutional frame within which discourses of political authority formed and were contested at the heart of Empire and the colonial peripheries.” The author, Dr Mark Hickford, wrote the book with support from the Law Foundation’s International Research Fellowship, which he was awarded in 2008. Lynda Hagen is the Executive Director of the New Zealand Law Foundation.

Lynda Hagen

Other recent NZ Law Foundation publications – a sample • Learning from the Past, Adapting for the Future: Regulatory Reform in New Zealand Susy Frankel (ed) NZLF research project – collected essays • From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand Elisabeth McDonald and Yvette Tinsley (eds) NZLF research project – collected essays • No Ordinary Deal – Unmasking the Trans-Pacific Partnership Free Trade Agreement Jane Kelsey (ed) Collected essays – publication supported by NZLF grant • Law Into Action – Economic, Social and Cultural Rights in Aotearoa New Zealand Margaret Bedggood and Kris Gledhill (eds) Collected essays – publication supported by NZLF grant • New Zealand Law Style Guide – 2nd Edition Geoff McLay, Christopher Murray, Jonathan Orpin Available online from www. • New Zealand Judicial Review Handbook Matthew Smith Research and publication supported by NZLF grant • We the People(s) – Participation in Governance Claire Charters and Dean Knight (eds) Papers presented to a Victoria University conference, February 2010. Both the conference and publication were supported by NZLF grant. More information on these publications can be found on the Law Foundation website

LAWTALK 797 / 8 JUNE 2012







Topics covered were: •

Identifying stress in the workplace

managing physical and emotional problems in high pressure environments;

Auckland lawyers were given tools to aid their emotional well-being at a seminar in early May.

the impact of stress, depression and anxiety on personal and emotional health;

identifying the warning signs of physical and emotional problems in yourself and others; and

the support offered by the New Zealand Law Society Practising Well service.


Gisborne lawyer wins congress grant

Maja Harris

Zealand College of Psychiatrists Dr Rob Shieff (MBChB) presented the seminar.

Gisborne junior lawyer Maja Harris was awarded a Law Foundation grant to attend the International Criminal Law Congress in Queenstown this September.

The branch held a seminar on identifying stress in the workplace and resources available within the community. Fellow of the Royal Australia and New


Ms Harris, who works primarily as a “flax roots” criminal defence lawyer is “passionate about criminal law”. Her client base is broad, with a range of summary matters. Her work also includes indictable sentencing, assisting in jury trials, and drafting Court of Appeal submissions. The return to her home town to work 15 months ago has already given her “plenty of advocacy experience,” she says. The Victoria University graduate applied to the Law Foundation for the scholarship to inspire her day-to-day practice, and expand her “knowledge and horizons”. The conference also draws on Ms Harris’ interest in international criminal justice.



In her final semester, Ms Harris studied at the University of Groningen in the Netherlands and during that time visited The Hague. Looking towards the conference, Ms Harris is particularly interested in the sessions on fact finding in international law with Dame Silvia Cartwright and Dr James Oleson. 1 - Dr Rob Shieff and Auckland branch manager Glenda Macdonald. 2 - Auckland lawyers Deborah Sim and Lisa Halford. 3 - Dr Rob Shieff speaking.


LAWTALK 797 / 8 JUNE 2012

For more information about the YLC or its activities, please email


Blenheim barrister Bryony Millar was re-elected President of the Law Society’s Marlborough branch at its annual meeting on 23 May. One of three active barristers in Blenheim, Mrs Millar began practising in 2002, when she moved from Christchurch to join Gascoigne Wicks.

Bryony Millar

Around five years later, in November 2007, she moved to the independent bar, where she practises mainly criminal and family law.

Mrs Millar is a Youth Advocate, Lawyer for the Child, Counsel to Assist in both the District and Family Courts, on the Crown prosecution panel and on the Blenheim Care and Protection Resource Panel. Outside the law, Mrs Millar combines her love of singing and love of acting in her involvement in musical theatre. She recently took part in a season of Monty Python’s musical comedy Spamalot. Mrs Millar was elected Marlborough branch President in 2010.


New step for impressive magazine

Rosemary Rutherford was elected the branch’s VicePresident and the 2012-13 council members are: Quentin Davies, Matthew Fairweather, Simon Gaines and Scott White. LT

at the

The Wellington Young Lawyers’ Committee quarterly magazine, YLC Advocate, is now available as an e-book. The latest issue, the Autumn 2012 edition, can be accessed from the YLC website, There is as yet no print version of this publication and until now it has been placed on the website as a PDF. The latest edition, which was published on 3 May, was prepared under the direction of new editors Lizzie Chan and Hamish McQueen and designer Rebecca Walthall. The new development comes just one year after the redesigned YLC Advocate was launched, under former Editor David Turner, now convenor of the Wellington Young Lawyers’ Committee. “We’re really proud of YLC Advocate,” David says. “It’s a really good resource.” As well as helping get the YLC brand out, the magazine provides both valuable information for young lawyers and a vehicle where they can get their articles published, David adds. It contains articles and case notes from young lawyers, photo spreads and reports from recent YLC events, and details of upcoming YLC events.

Looking for a smart place to lunch that’s not expensive?

Lunch: Mon – Fri 12.00 – 2.30 An inspired menu that is market driven and changes daily! 2 – 8 Maginnity Street, Wellington Tel: 04 474 1309

The Wellington YLC website is well worth a visit for many more reasons than accessing the very professional YLC Advocate. It contains a wealth of information, including upcoming events, a “what’s on in Welly” section, and information about the YLC itself.

LAWTALK 797 / 8 JUNE 2012








Jane Chart

Building on participants’ own experience, this one and a half day workshop Wellington 2 provides hands-on practice and feedback, as well as a conceptual framework Auckland 2 for preparing for and undertaking negotiations. It uses cutting edge research to examine different strategies and tactics, and offers tools for dealing with diffi cult negotiators, breaking impasses, for addressing specifi c issues which participants might wish to raise and for generally enhancing skill and confi dence in this vitally important aspect of practice.

30-31 Oct 7-8 Nov

Search & Surveillance

Michael Heron Dale La Hood

The Search and Surveillance Act 2011 brought major reform to search and surveillance powers and has subsequently had further amendments. This seminar will discuss the impact of the key changes – what are the new powers, how are they assessed, how can they be used? A live two hour webinar will be held for smaller centres.

5 Jun 6 Jun 11 Jun 12 Jun 13 Jun 11 Jun

Lending and Securities – changes to consumer and commercial credit laws

Sarah Simmers Stuart Walker

Building Profitability: Leverage, Leadership and Management

Dunedin Christchurch Wellington Hamilton Auckland Webinar

Credit law and lending practices have come under scrutiny as a consequence of Hamilton the global fi nancial crisis, third-tier lenders practices and recent litigation involving Auckland lenders. The government has proposed amendments to the Credit Contracts and Wellington Consumer Finance Act 2003 to protect consumers including introducing new responsible lending requirements. The presenters will summarise and offer their Webinar perspectives on these changes. A live two hour webinar will be held for smaller centres.

11 Jun 12 Jun 13 Jun

Irene Joyce

There is now a reputable body of evidence that supports the link between law Auckland fi rm profi tability and effective leverage. However, increasing profi tability through Wellington leverage is not just about adding more fee-earners. It means that partners must Christchurch make a shift from the all-consuming role of “producer”, and take on the leadership and management of others. It requires partners to act like owners rather than employees. The shift includes developing proactive leadership skills to manage staff performance and productivity. The workshop will identify the day-to-day skills required to motivate staff and achieve high performing leveraged teams.

11 Jun (Full) 13 June 23 July

Property Law Conference

Chair: Andrew Logan

The biennial 2012 Property Law Conference will be held on Monday 18 and Tuesday Auckland 19 June at the Pullman (formerly the Hyatt) in Auckland. The chair is long-time PLS Executive member Andrew Logan of Mortlock McCormick Law, Christchurch. With nine plenary sessions, two lots of breakout sessions and a stellar line-up of presenters this is an event not to be missed.

18-19 Jun

Corporate Governance Intensive

Chair: Justice Paul Heath

Corporate Governance is one of the major themes in the courts at present with many Wellington corporate governance issues arising out of recent fi nance company collapses. The Auckland issues are both civil and criminal, and there are a lot of lessons to be learnt. This intensive will take a close look at the issues highlighted by recent cases.

21 Jun 22 Jun

Expert Witness Programme

Director: Terry Stapleton

This two-day programme follows the tried and tested teaching methods pioneered Wellington by the prestigious United States National Institute for Trial Advocacy (NITA). There are the same learning-by-doing methods that have proved so successful in both the annual basic level NZLS CLE Litigation Skills Programme and the advanced course. This course concentrates on working with expert witnesses. The course is designed for all litigators from civil, criminal, family and other specialist jurisdictions with at least fi ve years’ experience.

21-22 Jun (Full)

Litigation Against Directors and Companies

Colin Carruthers QC Victoria Heine

With the recent successful prosecutions, are you confi dent that you are giving the best advice to company directors and offi cers? 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.

Fonterra Update and Federated Farmers (employment relationship issues)

Sean O’Sullivan Chris Spargo

Dunedin Christchurch Wellington Auckland Webinar

Presenters will cover two areas of dairy sector issues commonly encountered by Your rural practitioners. Firstly, Fonterra milking contract issues, the Trading Among computer Farmers Scheme and new rules being implemented by regional councils. Secondly, employment relations and contractual provisions in the rural sector. Webinar

Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see or email or contact CLE information, tel 0800 333 111.

13 Jun

24 Jul 25 Jul 26 Jul 27 Jul 26 Jul 28 Jun

Online registration and payment can be made at






SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Stepping Up – Foundation for practising on own account

Director: John Mackintosh

The new national course Stepping Up replaces the various local Flying Start Christchurch 19-21 Jul courses. All lawyers wishing to practise on their own account whether alone, Auckland 2 6-8 Sep in partnership, in an incorporated practice or as a barrister, will be required Wellington 8-10 Nov to complete the course. Developed with the support of the NZLF

Litigation Skills

Director: Jonathan Krebs Deputy Director: Janine Bonifant

This highly regarded residential week-long course is open to applicants with Christchurch 19-25 Aug at least three 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

Conflict of Laws and Trans-Tasman Enforcement

David Gooddard QC Transactions and people cross borders with great frequency. It is common Christchurch 2 Aug 9 Aug Prof Campbell McLachlan QC for all lawyers to encounter transactions, relationships and disputes that have Auckland 10 Aug connections with more than one country. The issues are as diverse as the Wellington jurisdiction in which a billion dollar fi nancing 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.

TRUST ACCOUNT TRAINING PROGRAMMES 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, attend the assessment day and pass all assessments. Make sure you register in time to do the preparatory work before the assessment day as listed on the right.

Hamilton Wellington Auckland Christchurch

11 Jul 12 Sep 14 Nov 21 Nov


Developed with the support of the Law Foundation Introduction to Company Law

Jeremy Blake Andrew Leete John Horner Anne McLeod Graeme Switzer Daniel Wong

This is a practical two-day workshop for practitioners in their fi rst three Wellington years’ of practice with small, medium or large fi rms. It will cover issues such as acquiring a business, funding, governance, distributions, expansion, shareholder disputes, fi nancial problems and the sale of shares. Participants will gain many practical tips to enable them to develop good practice and provide quality advice to their clients.

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 property law career and legal executives with some experience, follows three fi les from client instructions to settlement and beyond.

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).

Hamilton Tauranga Rotorua Dunedin Invercargill Wellington 2 Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei

Christchurch Wellington Hamilton Auckland

28-29 May (Full)

11-12 Jun 16-17 Jul 18-19 Jul 23-24 Jul

1 Jun, 20 Jul, 21 Jul 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 13 Jul, 31 Aug, 1 Sep 13 Jul, 31 Aug (in Dun) 1 Sep (In Dun) 3 Aug, 14 Sep, 15 Sep 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 21 Sep, 26 Oct, 27 Oct 21 Sep, 26 Oct (in Man), 27 Oct (in Man)

Programme brochures, online registration and booket purchases (with cheque, direct credit and credit card payment options) available at

Four top law students Four law students were among the 32 scholars who have won 2012 Freemasons scholarships. Sir Don McKinnon presented the scholarships at Parliament’s Legislative Council Chamber on 22 May. Louis Chambers Louis Chambers is nearing the end of study towards a BA LLB at Otago University. Last year Louis did an unpaid internship with the Environmental Defense Fund in the United States, learning about how large NGOs operate and about global environmental issues. Louis is president of the Otago University Debating Society and coordinates the Dunedin component of Generation Zero, a climate change campaign with a strong focus on youth involvement and participation that he co-founded. In 2009, Louis attended the UN climate change conference in Copenhagen with the New Zealand Youth Delegation and was a member of the selection panel who chose 12 youth delegates to attend the 2011 conference in Durban. Gretta Schumacher An avid debater, political theorist and legal student, Gretta Schumacher of Manurewa is working towards an LLB (Hons) and a BA at Auckland University. Following completion of her Honours

degree and admission, Gretta intends to continue post-graduate studies in the United Kingdom, ideally in Oxford University’s Bachelor of Civil Law programme. Gretta is actively involved in Auckland’s debating community, including with the Auckland Schools’ Debating Committee (where she was convenor of the Advanced Open Grade for 2011) and Auckland University’s Debating Society. She also helps SavY, a financial literacy programme active in Auckland and Hamilton secondary schools. She is a member of the law school’s Equal Justice Project and of Amnesty International’s Legal Network. James Mountier A keen and competitive sportsman since primary school, James is in his final year of an LLB (Hons) and B Com at Otago University. His dissertation topic is What goes on the field stays on the field – how far is too far, and when should the criminal court become involved. James is treasurer of the Otago University Football Club and coaches two men’s football teams, one of which topped its league last season. James is also on the committees of the University Grange Cricket Club and the Otago University Australian Rules Club. While at university James has been a Kiwi Host and an exchange student mentor.

New award to help NZ human rights watchdogs A new award is now available to help human rights advocates report on New Zealand’s compliance with its international treaty obligations. The New Zealand Law Foundation Shadow Report Award, worth up to $10,000, will be available each year to a non-government organisation or individual interested in human rights issues. United Nations organisations periodically review treaty compliance, and shadow reports provide supplementary or alternative information to help United Nations organisations fully understand the situation of individual countries. Law Foundation Trustee Andrew Butler said treaty monitoring bodies often express gratitude to NGOs for picking up domestic issues in shadow reports that


LAWTALK 797 / 8 JUNE 2012

might otherwise be missed. “The Foundation knows that shadow report preparation takes considerable time and effort, and this may be preventing NGOs from doing these reports. We are providing this award because we believe shadow reporting is a valuable contributor to the treaty monitoring process.” Applications are open to individuals or any organisation active in human rights in New Zealand. Applications close on 1 August. For more information and details on how to apply for this and other scholarships and grants, visit the Awards and Scholarships page on www. Closing dates are near for several other major Law Foundation awards, including:

Freemasons Grand Master Selwyn Cooper (centre) with 2012 Freemasons law scholars (from left) Louis Chambers, Gretta Schumacher, James Mountier and Hillary Max.

Hilary Max Hilary Max of Tauranga is in her fifth and final year at Waikato University, completing an LLB and BSc. Hilary has volunteered as a caseworker for the Hamilton Community Law Centre and helped at St Christopher’s orphanage in Fiji. Hilary is a companion and organiser with Camp Quality, supporting children with cancer, and a Hamilton YWCA board member. She is involved with Girl Guiding as an assistant Pippin leader. In addition, Hilary is a gymnastics instructor with Hamilton City Gymsports, where she coaches children aged 2 to 7. Hilary has been offered a role tutoring undergraduate students at the university’s Faculty of Law. She will also be acting as the academic coordinator at College Hall, a hall of residence on campus. LT • International Research Fellowship – New Zealand’s premier legal research award, worth up to $125,000 annually. Enables research in New Zealand or overseas that aims to make a significant contribution to an area of New Zealand law. Closing date 1 September. • Cleary Memorial Prize – for young barristers and/or solicitors, value $5,000 annually. Closing date 30 September. • Doctoral Scholarship – $35,000 a year for up to three years, for postgraduate study and legal research in New Zealand. Closing date 1 October (applications via Universities New Zealand). • Grants – the Law Foundation provides grants for legal research and public education on legal issues, as well as for development of legal professional training. The next grant applications deadline is 24 August. LT

OVERSEAS Grave concern at CJ’s arrest

Rights lawyer jailed

LAWASIA has expressed its “grave concern” for the rule of law in Papua New Guinea, following the recent arrest of the Chief Justice, Sir Salamo Inja, on charges of sedition.

A Chinese court has sentenced a disabled lawyer renowned for defending people evicted from their homes to two years and eight months in prison for causing a disturbance and fraud, Hong Kong Lawyer (May) reports.

Sir Salamo has been charged with sedition in the wake of the 21 May Supreme Court decision that upheld an earlier ruling ordering Sir Michael Somare be reinstated as Prime Minister. Police commissioner Tom Kulunga said the charge followed a complaint made by Prime Minister Peter O’Neil. The arrest and treatment of the Chief Justice “constitutes a disturbing threat to judicial independence in the country and violates obligations that have been assumed by Papua New Guinea,” LAWASIA says in a media release. “LAWASIA unequivocally emphasises the fundamental importance of the independence of the judiciary as a hallmark of rule of law in any democracy and urges the political actors in Papua New Guinea to be mindful of the universality of this tenet.”

Young lawyers’ group starts A new organisation of young lawyers in South Africa held its first meeting on 14 April. This follows the March formation of the Young Legal Practitioners Association (YPLA) during a meeting between young lawyers and the chief executive officer of the Law Society of South Africa, Nic Swart.

Filming in criminal courts A TV executive campaigning to lift the ban on cameras in criminal courts has said the limited rights announced in last month’s Queen’s speech will not end the battle for access, the Gazette, journal of the Law Society of England and Wales, reports. “We’re obviously interested in discussing what extras we can do down the road,” said Simon Bucks, associate editor at Sky News. The Crime and Courts Bill introduced in the Lords contains measures to allow filming and broadcasting of opening and closing legal arguments and judgments handed down. There will be no filming of defendants, witnesses or victims. Justice secretary Kenneth Clarke said overturning the ban would bring the concept of open justice “into the modern age” and make the courts “more accessible to the public than ever before”. But the legal profession expressed concerns. Law Society president John Wotton said: “We welcome measures designed to improve public confidence in and knowledge of the justice system, and support the principle of open justice. “We have concerns, however, that allowing TV cameras into courts may lead to selective and sensational reporting, and cause even more stress to victims of crime, witnesses and defendants alike.”

Ni Yulan, who was crippled by abuse in prison, and her husband, Dong Jiqin were sentenced by the court in the Xicheng district of Beijing. The couple were arrested in April 2011. Prosecutors alleged that Ni accepted payment for giving legal advice despite having been disbarred, and that she and her husband had failed to pay hotel bills of about $US11,000. Ni had been jailed twice before, both times on charges of obstructing official business. She was left disabled by a police beating in 2002 after filming the forced demolition of a client’s home and was then jailed. In 2008, she was jailed for defending the rights of people evicted from their homes to make way for Beijing’s 2008 Summer Olympics.

Lack of legal aid funding The Law Council of Australia has expressed disappointment at the Commonwealth Government’s failure to do more in this year’s Budget to improve access to legal services for disadvantaged Australians. Law Council of Australia President, Ms Catherine Gale, said on 9 May that there were clear indications that a lack of funding for legal aid was having a serious impact on the ability of many Australians to access legal services. Despite this, the Government has chosen to overlook this crucial issue in this year’s Federal Budget. “Failure to adequately fund the legal assistance sector means hard-working Australians, who have fallen on tough times, simply will not be able to afford legal help,” Ms Gale said. “Underfunding of the legal assistance sector creates additional costs down-stream, rippling into many different areas, including the justice system, public health system and the broader business community.”

Mediations on the increase The number of civil and commercial mediations has grown by almost a third over the past two years, reports the Gazette, magazine of the Law Society of England and Wales. The value of mediations over the same period has grown by almost a half, according to the Mediation Audit 2012, the dispute resolution body CEDR’s fifth biennial survey of civil and commercial mediators’ views. The annual number of mediations has risen from 6,000 to 8,000 and their value by 47% to £7.5 billion. Annual fee income from mediation totals about £20 million, with 90% of cases settling. LT

LAWTALK 797 / 8 JUNE 2012


LAWYERS COMPLAINTS SERVICE Lawyer suspended for preparing false land transfer documents Southland lawyer Louis Evans was suspended for one year by the Lawyers and Conveyancers Disciplinary Tribunal after he prepared a false statutory declaration and Landonline certificate. His extensive disciplinary record was a key factor in the tribunal’s decision. The charges While he was acting in the administration of an estate, Mr Evans had completed an electronic transfer of the estate property to the deceased’s sole executor. Probate had not, in fact, been granted to the executor, but Mr Evans prepared the transfer documents as if probate had been granted when he knew it had not. He admitted two charges of misconduct arising out of this. The first charge was that he prepared and submitted to the executor’s own lawyer a false declaration for the executor to sign, knowing the declaration was false and that it would be relied on. The declaration stated explicitly that the executor had been granted probate. The charge alleged Mr Evans had failed to promote and maintain proper standards of professionalism in his dealings (breaching Rule 10 of the Conduct and Client Care Rules), and that he had also misled and deceived a fellow lawyer (breaching Rule 11.1). The second charge was that Mr Evans had knowingly provided a false certificate to Land Information New Zealand. He had certified that the executor was entitled to be registered as owner and had the legal capacity to authorise Mr Evans to lodge the instrument. The charge specified that Mr Evans had breached the Land Transfer Act 1952 by providing the false certificate (s164A). It said he had also breached the Rules, which state that lawyers must not certify the truth of a statement unless they believe on reasonable grounds that


LAWTALK 797 / 8 JUNE 2012

it is true after taking appropriate steps to establish this (Rule 2.5). Aggravating features In deciding on the penalty, the tribunal took into account the wilfulness of Mr Evans’ conduct. It said his dishonest statement to the executor’s lawyer could not be explained as a mere slip, and clearly it had been made to cover up Mr Evans’ error or oversight (involving the loss of a client file with original documents on it). The tribunal said all lawyers must be able to rely on their colleagues to behave with absolute integrity. The tribunal also said Mr Evans’ misconduct had breached “the very heart” of the Landonline system, which depends on the integrity of lawyers working within it. Providing a false land transfer certificate was also a criminal offence, the tribunal noted. A third and particularly significant factor for the tribunal was Mr Evans’ past disciplinary record. In 1990, in a similar situation, he had made false statements to the trustees of a deceased’s estate. The next year he was found guilty of four charges of misconduct after he breached the audit regulations and trust account rules. In that case he was censured, fined and ordered not to practise on his own account until authorised to do so. Most recently, in 2006, he had made false statements to a client in a relationship property case. For that he was censured, fined and ordered not to accept work or hold himself out as competent to work in a court or tribunal for 10 years. Mr Evans had admitted the charges in all these previous cases. The tribunal said a consistent theme was his willingness to admit wrongdoing once confronted, but also his seeming inability to maintain a professional standard that prevented any repetition. Mr Evans’ lawyer told the tribunal that he had been co-operative, that he hadn’t personally benefited from his misconduct, and that there was already some punishment in him no longer being allowed to provide Landonline certificates. There were also several very

positive references, including from Mr Evans’ employer. The tribunal said he was clearly a popular man with clients, fellow employees and other lawyers. Penalty The tribunal suspended Mr Evans for 12 months and censured him. The Lawyers Standards Committee that brought the charges had sought only a six-month suspension, plus a fine and censure, but the tribunal decided a heavier penalty was needed to reflect the seriousness of Mr Evans’ repeated offending. The tribunal also ordered Mr Evans to pay $20,000 to the Law Society to cover its costs and to reimburse the Law Society for its payment of the tribunal’s own costs, which were $5,370. LT

Heavy fine for breaching trust account rules and other duties An Auckland barrister (A) was fined $10,000 by a Lawyers Standards Committee and ordered to refund fees after a string of transgressions, including breaching trust account rules, failing to act independently, acting without an instructing solicitor, and failing to provide client service information. The complaint and response In February 2010, A had agreed to act for Mr B and Ms C, an Asian couple, after being contacted by their friend Ms D on their behalf to discuss immigration matters. The two clients later complained of overcharging, poor service, inappropriate handling of funds, and failure to return documents. A told the committee he believed his fee had been modest. He also defended his handling of the clients’ funds and personal documents and possessions. He said that in June 2010 the couple had authorised him and Ms D to uplift their personal belongings from the Police. He and Ms D also went to a Women’s Refuge to collect other personal items, and there the lawyer was given money by a staff member,

L AW YERS COMPL AINTS SERVICE who was holding it for the client Ms C as she did not have a bank account. According to the lawyer, the couple’s friend Ms D was aware he had been given this money for his legal fees.


Ms C told the committee she was unaware her friend had agreed to A keeping this money for his fees. Ms C disputed that he had done enough work to justify that amount. A claimed he no longer had any of the couple’s personal documents and possessions. He said he had given them to the couple’s new lawyers. However, the new lawyers confirmed they did not have any of these items, as did the complainants. “Strict observance” required The standards committee found that A had failed to keep adequate records of fees paid or of the client funds he had dealt with, that he had had client funds placed directly into his account contrary to the relevant rules, and that he had been unable to produce relevant invoices and receipts when asked. The committee said that A’s failure to comply with the relevant requirements meant he had had no authority to deal with the client’s money or take fees. Further, no written authority for this could be found in A’s files. The committee said that a lawyer’s obligations in handling client funds must be strictly observed, citing decisions of the Lawyers and Conveyancers Disciplinary Tribunal ([2010] NZLCDT 21) and the Legal Complaints Review Officer (LCRO 134/2010). The legislation states: “A practitioner who, in the course of his or her practice, receives money for, or on behalf of, any person … must hold the money, or ensure that the money is held, exclusively for that person, to be paid to that person or as that person directs” (Lawyers and Conveyancers Act 2006, s110(1)(b)). Also, “[e]very receipt, payment, transfer, and balance of trust money must be recorded in a trust account ledger with a separate ledger account for each client …” (Lawyers and Conveyancers Act (Trust Account) Regulations 2008, reg 12). A had breached both those requirements. Further, A had not held the clients’ belongings in safekeeping, contrary to a file note confirming he was doing so. He had also been unable to produce all documents when his retainer terminated, a breach of Rule 4.4 of the Conduct and Client Care Rules. Failure to act independently The committee said it appeared that A had not maintained his independence as a lawyer, as required by Chapter 5 of the Rules of Conduct and Client Care, and had not acted in his clients’ best interests. He had acted for Mr B in relation to his alleged breach of a protection order, but he had also assisted the other client Ms C, who was the alleged victim, to prepare her affidavit. A had also not provided the clients with terms of engagement and other necessary client service information (breaching Chapter 3 of the Rules). He had also not been instructed by a solicitor for a number of the matters (Rule 14.4). The penalty Finding A guilty of unsatisfactory conduct, the committee fined him $10,000 and ordered him to pay the Law Society $2,500 costs. He was also ordered to cancel his fees and refund them to the clients. The committee also directed A to make his practice available for inspection, and to undertake training and attend the Stepping Up programme at his own expense. LT

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 Michael Ross BENDALL Amanda Mei-Ling LEE Deborah Rose MCFARLANE Katrina Jane PALMER Thomas Herbert RATTRAY Tristan William SAGE Gisborne Branch Raine Dunn WEATHERHEAD

Waikato Bay of Plenty Branch Stephanie Laura CLARK Natasha May SELF Mary ZHOU Roble Mohamed ALI Rachel Anne DICKSON Kent William Miles HENDERSON Andrew LIN Erin Rebekah LOCKE Karmen Louise NGATAI

Hawkes Bay Branch Jessie Dryden STONE

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006

Auckland Branch Brian Keith CLAYTON Douglas Austin COWAN Nicholas John SMITH

Waikato Bay of Plenty Branch Fiona Hudson THOMPSON (nee LEAF, then DENNEHY)

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 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 14 June 2012. Any submissions should be given on the understanding that they may be disclosed to the candidate.

Lisa Attrill, Registry Manager Email:, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989

LAWTALK 797 / 8 JUNE 2012


Women in law awards launched The inaugural Australasia Women in Business Law Awards will take place this year. Organised by Legal Media Group (LMG), the awards will presented at a ceremony in Sydney on 16 August. The aim of the initiative is to give law firms and professional services firms in the Australasian region the recognition they deserve for their efforts in helping women advance in the legal profession.

It will also recognise the leading female business practitioners across multiple areas of law. The first stage of LMG’s research will involve submissions from law firms in Australia and New Zealand. These submissions will include detailed information on female lawyer numbers in relation to male counterparts, details of tangible, women-friendly working practices and policies – such as gender diversity projects – as well as biographical information about leading female lawyers. This will be followed by email and telephone interviews with firm diversity heads, lawyers and clients.



Would any lawyer holding a will for the above-named, late of 101 Station Road, Kamo, Whangarei, student, who died on 7 October 2011, please contact Robyn Mathews, PO Box 664, Whangarei 0140, ph 09 437 3070, fax 09 437 2070 or email robynmathews@

Would any lawyer holding a will for the above-named, formerly of Paraparaumu, late of Whangarei, who died on 26 December 2011, please contact Judy Burden, Regent Law, PO Box 204, Whangarei 0140, ph 09 430 0509 or email

SIMOTE FALEMAKA TUITUPOU Would any lawyer holding a will for the above-named, aged 36, machine operator, who died on 11 January 2012, please contact Ric Sinisa of Sinisa Law, PO Box 22853, Otahuhu, Auckland 1640, ph 09 270 2525 or email

JAMES LEMUEL WINIANA Would any lawyer holding a will for the above-named, born in Wairoa on 8 February 1956, shepherd, late of Chatswood, Australia, who died on 13 January 1999, please contact John McDowell, Barrister & Solicitor, PO Box 636, Napier 4140, ph 06 833 6543, fax 06 833 6324 or email

Based on this research, LMG will draw up a shortlist from which it will select the eventual winners. For more information, see AWIBLAwards12. LT

Alcohol interlocks Implementation of alcohol interlocks and zero alcohol licences has been deferred. The story on alcohol interlocks in LawTalk 796 (25 May, p23) stated that from 1 July courts would be able to order the use of alcohol interlocks and have the Zero Alcohol Licence as a standalone sentencing option. Originally planned for this date, implementation has now been delayed and is currently expected to take place in the next two to three months. LT Fearon & Co 56x100 ad_BW.qxd:Layout 1



Ella Edie Ernestine Barber Would any lawyer holding a will for the above-named, who died at Greytown on 1 September 1990, please contact S W Ogilvie, PO Box 114, Masterton 5840, fax 06 378 7091 or email simon@thepropertylawyer.

MILES MACKERETH Would any lawyer holding a will for the above-named, born on 20 February 1946, late of Auckland, New Zealand, who died on 5 November 1985 in Manhattan, New York, USA, please contact Robert Mills, Solicitor, DX NA95001 or PO Box 20, Stratford, New Zealand 4352, ph 06 765 5299, fax 06 765 7550, email


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.

SOLICITORS Established 1825

Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:• 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 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:


Martin Williams 00 44 (0)1483 540843


Francesca Nash 00 44 (0)1483 540842


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

Send your CV and covering letter

LAWTALK 797 / 8 JUNE 2012

John Phillips

Regulated by the Solicitors Regulation Authority of England and Wales

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.


PROPERTY 00 44 (0)1483 540841

Alexia Loughran on +44 (121) 2229277 or Cobbetts LLP is a limited liability partnership



Auckland Opportunities Legal Counsel Join this leading financial services organisation. Three month contract with option to renew, plus the possibility of becoming permanent. You will need 7 plus years PQE in financial services and working knowledge of the NZ Securities Act. High level of autonomy. Ref 30321

Auckland Ph: +64 9 306 5500 PO Box 105732 Wellington Ph: +64 4 499 6161 PO Box 11003

Commercial Solicitor – Wellington

Construction Build your career in construction in this well regarded firm that is truly different to the rest. Offering a uniquely supportive and career enhancing culture combined with quality clientele. We are looking for commercial construction and construction litigation specialists. Ref 30221

Our client is a progressive, boutique firm that is in growth mode. The busy team is looking for a high performing commercial solicitor with at least two years’ PQE to join them.

Corporate Solicitor Our client is a leading commercial firm with an enviable client base. You will love the fantastic culture where people enjoy working together, are supportive and embrace a can do attitude. They have an urgent need in their Auckland office for a corporate commercial lawyer with around 5 years PQE. Ref 29316

You will be working in a dynamic team alongside well regarded partners and will be given the opportunity to expand your skill set. You will also have the opportunity to work closely with distinguished professionals from other industry sectors. Servicing clients in both the public and private sectors, the work is challenging, varied and interesting.

To apply, please send your CV to quoting the reference number. For further information in strict confidence, please contact Meryn Hemmingsen on 09 306 5500.

To be successful in this role, you will need to have a strong corporate or commercial law background, ideally in a top-tier firm. As well as your excellent academic transcript and well developed technical abilities, you will also need to possess outstanding communication and time management skills.

If you are interested in joining an innovative organisation that is really going somewhere, contact us today. For further information in strict confidence please contact Ben Traynor or Clare Savali on 04 471 1423 or email Phone: +64 4 471 1423 Email:

WILLS Royce Leslie Leylander Would any lawyer holding a will for the above-named, late of 2 White Rd, RD2, Waitati, Dunedin, previously of 244 Middleton Rd, Dunedin, who died on 26 or 27 February 2012, please contact Michelle Ussher, 87 Heta Rd, Highlands Park, New Plymouth 4312, ph 06 757 5214.

Education and Development Adviser Institute of Judicial Studies, Wellington Vacancy 23055 Are you looking for a challenge in the law that utilises legal and educational skills?


Superior Quality Legal Offices to Rent Devonport, Auckland

Stylish, modern legal offices available to share with two other senior legal practitioners in the heart of the Village. Includes shared reception area, meeting room, storage, kitchenette and bathroom. Either $950 per month for larger office or $750 per month for smaller office, includes GST and OPEX.

The Institute of Judicial Studies, based in Wellington, is a leader in innovative judicial education. Its work supports and assists the judiciary to stay up to date with developments in the law, in the use of technology and in touch with changes to New Zealand society. The role of Education and Development Adviser is pivotal to the work of the Institute of Judicial Studies. The central aspects of the role are to lead and implement judicial education projects and to provide advice on current and future judicial education activities, with a focus on: • Supporting judicial officers to design, develop and review programmes that are aligned with the curriculum; • Developing written materials that support judicial education. This requires the capacity to manage multiple projects simultaneously. The successful applicant will work closely with senior members of the judiciary across all jurisdictions. We will consider applicants who are wanting to work less than full time. For more information, please visit our website Vacancy No. 23055. Applications close Monday, 18 June 2012.

Contact Kylee on 027 361 4075

LAWTALK 797 / 8 JUNE 2012


A year’s worth of inspiration at your fingertips. ANZ Privately-Owned Business Barometer 2012. The 2012 ANZ Privately-Owned Business Barometer provides insights from thousands of business owners to help inspire others. Now in its sixth year, this is the most in-depth survey into the attitudes and behaviours of New Zealand’s private business owners. To find out how other business owners are thinking ahead, download your copy from ANZ National Bank Limited 05/12


LawTalk Issue 797  

LawTalk Issue 797

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