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LAWTALK

17 AUGUST 2012 / 802

FOR THE NZ LEGAL PROFESSION

NEW ZEALAND LAW SOCIETY NZLS EST 1869

JUSTICE TIPPING RETIRES –– 26 26 YEARS YEARS ON ON THE THE BENCH BENCH ––


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INSIDE

THE MAGAZINE

FEATURE: A LIFE IN THE LAW

“I admire the work of the Community Law Centres around the country so I thought they would be suitable recipients.”p. 12

“If you’ve got nothing to hide, there’s nothing wrong with living in a fish bowl.”

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CLANZ award donated to Community Law

Law Society appoints new General Manager

The 2012 CLANZ LexisNexis Private Sector In-House Counsel of the Year has donated her prize to Community Law...

p. 10

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Law, mediation, whakapapa and historical research

Rachel Hayward has been appointed as the Law Society’s General Manager Law Reform and Sections...

By RACHAEL BRECKON

Life as a lawyer entails mediation, private investigation, and historical research for Desiree Mahy...

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13 Insights into NZ and UK criminal justice system differences It is not every day that one has the opportunity to watch four leading silks argue an asylum appeal in the United Kingdom Supreme Court...

What the boss wants By RACHAEL BRECKON

LawTalk asks chief executives what they want from their in-house counsel...

From one bar to another

By DUNCAN WEBB

It is not (yet) compulsory for lawyers to be nice. They must, however, be courteous...

20 Learning by doing

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The duty of respect and courtesy

In every type of hearing – civil, criminal, family, environmental, employment and any other court or tribunal – dealing with expert evidence is an extremely important skill...

By HANNAH GRANT

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Barrister David Bleier decided to embark on a career in the law after having an epiphany...

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Nothing fully prepares you

Young lawyer rises to challenge

By RACHAEL BRECKON

By RACHAEL BRECKON

“Nothing will fully prepare you for that fateful day when you go in and are facing in the opposite direction – in other words you’re the judge”...

Yazmin Juned’s talents as an in-house lawyer and communicator quickly became evident when she began at Housing New Zealand Corporation...

10 Small towns have career prospects too By ELLIOT SIM

When considering a career path in law, many would look to large inner city law firms...

7 REGULARS

Winning for both teams

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People in the law

In-House

Law Reform Report

Section News

Bookshelf

CLE

Lawyers Complaints Service

By HANNAH GRANT

All Blacks midfielder and Hurricanes captain Conrad Smith is famous for his unflappable consistency and defence skills on the field... nzls lawyers website • keep up-to-date with local and regional news and events • have your say on law reform • find information and resources for practising law http://my.lawsociety.org.nz www.facebook.com/mylawsociety https://twitter.com/mylawsociety

LAWTALK 802 / 17 AUGUST 2012

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FROM THE LAW SOCIET Y GARRY COLLIN

T

he Government’s proposed reform of the Family Court has the potential to compromise its position as a robust court of law.

multiple or more serious issues – for example, an application for day-to-day care or permission to take children to live overseas).

The Minister of Justice unveiled the Government’s reform plans at the beginning of this month. While the Section applauds the Minister and the review team for their careful consideration of the submissions and the many recommendations they have adopted, one of the key proposals for change is the ministry’s goal to target the use of court professionals to where they are needed most.

Where a child should live and international relocation are big issues, yet under the proposal no lawyers will be involved until after a settlement hearing.

The ministry’s plan to reduce lawyer involvement came as a surprise to the Family Law Section. The concept had not been raised during consultation. The ministry has proposed a three-track approach to proceedings brought before the Family Court. The court registrar will deem applications either: Fast Track (Without Notice), Simple Track, or Standard Track.

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This system means a judge has the power to decide whether or not parties will have a lawyer. The lawyer will be involved only in the substantive hearing. Parties will appear for all the pre-trial matters, settlement hearing and preparation of documents without a lawyer. The proposal raises significant issues of unequal balance of power, confidence, the ability to speak in public, emotional detachment, an ability to act rationally, and the ability for someone to be reality tested. Unfortunately, when parties separate they are highly volatile, they are often not rational and will not necessarily act in the welfare and best interests of their children. Lawyers play a very important role in removing irrelevant harmful and hurtful evidence.

Lawyers are involved from the beginning of Fast Track cases only, where urgent application to the court has been made – for example, allegations of domestic violence and protection of children.

The Family Law Section has concerns about the lack of ability for parties to have legal representation and advice at an early stage and will be consulting the profession widely on these proposals as they will have far-reaching impacts.

Lawyers are excluded from cases the registrar places on the Simple (single-issue matters – for example, contact arrangements for children) or Standard tracks (applications to the court for

Garry Collin Chair, Family Law Section, New Zealand Law Society.

LAWTALK 802 / 17 AUGUST 2012


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 editor@lawsociety.org.nz WRITERS: Rachael Breckon Ph +64 4 463 2910 rachael.breckon@lawsociety.org.nz Elliot Sim Ph +64 4 463 2902 elliot.sim@lawsociety.org.nz Advertising: Christine Wilson Ph +64 4 463 2905 christine.wilson@lawsociety.org.nz Inquiries about subscriptions to: subscriptions@lawsociety.org.nz DESIGN: Jesse Cogswell Ph +64 4 463 2981 jesse.cogswell@lawsociety.org.nz Printing: Lithoprint, Wellington ISSN 0114-989X

Coming up … Construction law skills seminar

Forum looks at IP law and commercialisation

The New Zealand Society of Construction Law is holding a full day seminar on construction law core skills on 4 September at Waipuna Conference Centre, Mt Wellington, Auckland. The seminar is chaired by Sherwyn Williams of Kensington Swan and features presentations by leading industry practitioners, including Stuart Robertson (tender law and contract formation), Michael Weatherall (new types of contract), Donald Gardner (indemnity and insurance) and John Walton (securities). For more information contact the society at http://constructionlaw.org.nz/ Home.aspx.

A two-day forum in Auckland from 10-11 September will consider New Zealand’s intellectual property law and its use and effectiveness in today’s digital world. The 2012 Intellectual Property and Commercialisation Forum discussions will include IP and the internet, strategies for the commercialisation of intellectual property, effective IP management, and encouragement of more innovation in New Zealand. A wide range of speakers from law firms, patent attorneys, IP and accounting practices will share experiences. More detail can be found at www.conferenz.co.nz/ conferences/2012-intellectualproperty-and-commercialisationforum.

Resource management and attitude The Resource Management Law Association’s 2012 conference in Queenstown from 27-29 September marks the association’s 20th anniversary. The conference theme is Altitude with Attitude and organisers are promising a challenging and exciting programme to celebrate two decades. More details are available at www.rmla.org.nz/annualconference.

IBA Conference More than 4,000 lawyers are expected to attend the 2012 International Bar Association (IBA) Conference, to be held in Dublin from 30 September to 5 October. This will be the largest gathering of the international legal community in the world. See www. int-bar.org/conferences/ Dublin2012/.

CLIENTS WITH The views expressed in LawTalk are not necessarily those of the New Zealand Law Society. Articles may be reproduced provided acknowledgment is given to LawTalk.

ACC DISPUTES? JOHN MILLER LAW

Level 1, 13 Leeds St I PO Box 6314, Wellington +64 (04) 801 5621 I info@jmlaw.co.nz www.jmlaw.co.nz

ANZAPPL will hold conference in Melbourne The Australian and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) will be holding its 32nd annual congress at Melbourne’s Hilton Hotel from 23-25 November. The 2012 conference theme is Evolving Paradigms in Forensic Practice. Further information is at www.anzappl.org/ annual_congress.htm.

Law students to meet in Auckland The New Zealand Law Students Association is holding its annual conference at Auckland University, from 28 August to 2 September. As usual the conference will feature presentations, competitions and many opportunities for networking. More information can be found at www. nzlsa.co.nz. • Wish to refer them to a specialist ACC law firm? • With nationwide coverage? • We deal with ACC matters only and will not represent your clients in other areas.

LAWTALK 802 / 17 AUGUST 2012

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A LIFE IN THE LAW

New Zealand’s 11,500 lawyers come from a wide range of backgrounds and with varying aspirations. Some become judges, some famous outside the law, and many enter a career which takes them in directions they never imagined. As well as recognising the achievements of our longest-serving judge, Justice Tipping, LawTalk would like to celebrate the character of New Zealand’s legal profession. We share some of their stories over the next few pages.

Nothing fully prepares you RACHAEL BRECKON A final sitting is being held today, 17 August, for New Zealand’s longest-serving judge, Justice Andrew Tipping. Appointed to the High Court in 1986, Justice Tipping then served in the Court of Appeal and the Supreme Court. Over the years he has received many awards, including the Cleary Memorial Prize. In 1965, he became the second recipient of the award, for lawyers in their first three years of practice who are judged as giving the most promise of service to and through the profession. He was appointed a Distinguished Companion of the New Zealand Order of Merit in 2006 and was redesignated a Knight Companion of the order in 2009. “Nothing will fully prepare you for that fateful day when you go in and are facing in the opposite direction – in other words you’re the judge,” Justice Andrew Tipping says.

their own performance”, he says. “But I do not sense there is any serious concern at the way the court has operated. Inevitably, at our level, we are dealing with issues where, among the judiciary (and among the wider community), there is room for genuine and reasonable differences of opinion.”

There are few people in the country more experienced to speak on the subject of being a judge than Justice Tipping, a member of the judiciary since his appointment to the High Court in 1986.

The Supreme Court is generally not dealing with whether something is “right” or “wrong”; it is a case of “which is the better course to plot for New Zealand law”, he says.

Since then he has moved through the ranks. He became a member of the Court of Appeal in 1997 and was appointed to the Supreme Court at its establishment in 2004.

“So, it’s not surprising, and it’s healthy, and it’s of the nature of things, that not all our decisions are received favourably.

Justice Tipping’s career began in a firm in Christchurch after completing a BA (majoring in Classics) and an LLB from Canterbury University in 1965. While working, he completed a Master’s (Hons) two years later. Canterbury University awarded him an honorary Doctorate of Laws in 2002. Now acclaimed as one of New Zealand’s top legal minds, Justice Tipping is set to retire from the Supreme Court – a court that was not even a pipe dream when he embarked on his career nearly five decades ago. So entrenched in the nation’s legal framework, it is unsurprising that

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LAWTALK 802 / 17 AUGUST 2012

Justice Andrew Tipping

when asked how he thinks the Supreme Court has fared since its introduction under then Attorney-General Margaret Wilson, Justice Tipping is quick to acknowledge his potential bias. “I think one would have to start by saying it is not easy for someone in the firing line, or the front line, to criticise

“There are clearly decisions that a vocal number of the population haven’t liked. I think, in part, that is because the actual strict nature of the decision is not portrayed with sufficient accuracy in the general media, and that’s perfectly understandable, because some of these things are quite subtle.” However, Justice Tipping is concerned that the quality of media coverage is impacting on the public’s perception of the court system. “My own impression is that the art of court reporting has not improved in my time on the bench. I think it is largely


A LIFE IN THE L AW because journalists are under extreme pressure and we are in a soundbite era,” he says. “I have sympathy for the journalists, but it doesn’t actually assist the public’s understanding of what the courts are doing.” Because the media generally focuses on crime rather than civil cases, the public’s measure of the court system is crime. “The way certain cases are presented, the public are inclined to think: ‘the jury went mad’,” he says. “The country shouldn’t have to endure diminished confidence in the justice system due to bad reporting – that is unhealthy for society.”

Staying objective in a small country Justice Tipping accepts that the need for the courts to remain objective is always a concern to people, owing to the small size of New Zealand. However, judges have plenty of practice at remaining objective during their years of legal training and then their work as a lawyer. “Your whole professional training from when you start studying law and as you start climbing the ladder teaches you to be objective – to be dispassionate, not to be swayed by emotion or prejudice,” he says. However, if you are on the bench and really don’t feel it is appropriate to sit because you know someone or something – “you just don’t sit”, Justice Tipping says. “But against that, you have a duty to sit in all cases put before you, unless there is objectively a clear reason why you shouldn’t do so. You have to balance those two competing factors and ultimately it is a matter of assessment,” he says.

Becoming a judge LawTalk asked Justice Tipping what advice he would give lawyers who would one day like a seat on the bench of the highest court in the land. “I think it is important for all judges, and for judges in the appellate courts in particular, to have a good broad general experience, both in practice and on the bench, before they get to an appellate role and in particular a final appellate role,” he says.

The country shouldn’t have to endure diminished confidence in the justice system due to bad reporting – that is unhealthy for society.

JUSTICE TIPPING “Because it is only by being able to see the whole broad sweep of the law, if you like, that you are best able to assess where this particular area of the law should best go; in harmony, with broad legal principles. We don’t, and it is highly undesirable really, look at particular legal issues in a vacuum.

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“You must be aware of how the decision you are going to make might intersect with or influence other allied areas, or other areas that are not allied, as people may try to use your judgment (your precedent) for things you might not have even thought of.”

Current legal graduates Chair of the Council of Legal Education from 1996 to 2010, Justice Tipping has remained actively involved with newcomers to the legal profession. “The top-end graduates are superb and can more than hold their own with anyone in the world,” he says. Generally New Zealand graduates are looked on very favourably overseas. Unfortunately, at the other end, the profession does have some less competent members. We need to work out how to maintain, and even enhance, professional standards without engaging in practices that make it unduly hard for people from certain socio-economic backgrounds to enter law, according to Justice Tipping. “If we require extra training [of law students], or make the law course harder, or make it a post-graduate degree, we are making it harder for those who don’t have certain economic advantages,” he says. “It is basically for the universities to set the standards for the law degree, but the profession and the judiciary have a very lively interest in making sure the current high standards, which to date have been measured primarily by the degree, are maintained. “Is the proposition that a law degree should almost automatically admit you to practice correct, or is there a need or a case for interposing something more than we have at the moment before admission? It is an issue that would benefit from being addressed.” LT

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LAWTALK 802 / 17 AUGUST 2012

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A LIFE IN THE L AW

Young lawyer rises to challenge By RACHAEL BRECKON Yazmin Juned’s talents as an in-house lawyer and communicator quickly became evident when she began at Housing New Zealand Corporation (HNZ). In May 2010 – brand new to her role – Ms Juned was almost immediately handed the case of three Housing New Zealand tenants who fought eviction from their state houses on the grounds of discrimination. The case went all the way to the Court of Appeal, which upheld the original Tenancy Tribunal decision in favour of Housing New Zealand. Not only did Ms Juned need to manage the black letter legal work but there were security issues, along with the pressure of sustained media interest. Fortunately for HNZ, Ms Juned was well-equipped to keep afloat. In fact, her work would see her becoming the MAS Young In-House Lawyer of the Year at the 2012 CLANZ awards. Throughout the following year (the Court of Appeal verdict was delivered on 9 December 2010, then the case went to the Human Rights Review Tribunal in June 2011), Ms Juned had to keep focused on the big picture and to ensure excellent communication between internal and external stakeholders. “As others were involved in the detail of the legal argument, witness statements, security arrangements and responses to media inquiries, the Corporation needed me to be focused on our overall strategy and business interests,” she says. “Getting the right external lawyers was one element to the strategy, but so also was a good internal project team comprising staff from our communications, health and safety and human resources teams among others. “It meant I could coordinate advice and support quickly and also meant I was able to keep the executive and other key members of the business well briefed on all the issues as they arose.” The ability to communicate well, to have commercial acumen, and to have the courage to give legal recommendations are all vital skills to being a good in-house lawyer in any

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Yasmin Juned

role, according to Ms Juned. “[An in-house lawyer] needs to be able to give recommendations. Nobody wants to hear on one hand ‘x’, on the other hand ‘y’. You have to have the confidence to make a recommendation and stand by it,” she says. An effective in-house lawyer also needs to be able to be an effective project leader, Ms Juned says. “Part of this is to anticipate what skills and expertise you are likely to need to call on and build a good project team at the outset,” she says. “It’s much easier to get good advice quickly if the team is well briefed and across the main aspects of the case from the start, rather than pulling them in at the last minute.”

Commerce is also a focus for Ms Juned, who believes in-house counsel have “significant value to add to the businesses they work in, particularly at a strategic level”. Ms Juned began her education with a land economy degree at Cambridge University in England. This meant she studied all the basic law papers as well as micro and macroeconomics, accounting and investment analysis. She intends to use the $5,000 scholarship she was awarded when she won the MAS Young In-House Lawyer of the Year scholarship to further develop her business skills. Ms Juned has been accepted for the Warwick Business School MBA course, to start in January 2013. LT


A LIFE IN THE L AW

Winning for both teams By HANNAH GRANT All Blacks midfielder and Hurricanes captain Conrad Smith is famous for his unflappable consistency and defence skills on the field, but the rugby centre has another, less-known, use for those personality traits: his legal career. It wasn’t until Mr Smith was nearing the end of his law degree that he “grew bigger” and was approached to play rugby professionally. “It was in my final year of study when I made representative rugby ties. Before that I had enough time to be a full-time student and engross myself in law,” he says. Mr Smith seeded his legal career as a law clerk at Bell Gully and continued to work there on an “as and when” basis when the spotlight began to shine on his rugby career. “Two years ago I realised that I wasn’t going to be able to spend much time in a law firm, especially when I started with the All Blacks, so I thought it was better to use the little time I had to see a different side of law,” he says. A specialised sports law team, along with the ability to work broadly with a diverse range of clients attracted Mr Smith to work for Wellington firm Gibson Sheat. His All Black commitments meant he could only work sporadically at the firm. He admits (with a smile) that productivity wasn’t that high, but it was great to have variation out of the world of sport. “I love sport and I love law but I never thought of combining them both. Sports law is an obvious option for me, though, and I’m very fortunate in being able to merge my two passions.” Then a small thing called the Rugby World Cup came along, which made it hard for him to juggle both professions. But, it’s probably fair to assume, the profession will forgive him for choosing to forsake law to help bring home the Webb Ellis Cup. Early ties with the Players’ Association meant his legal mind didn’t get a chance to put its feet up for long. There were collectives to read and contracts to negotiate. “In my first year of rugby I was on the Players’ Association board and helped out with collective bargaining. Over the years I built a good relationship with the New Zealand Rugby Union (NZRU) and around the World Cup I was singled out to read the participation agreement. “It’s great being able to use my legal knowledge in the rugby environment. Bargaining on behalf of the Players’ Association is a legal career highlight. It’s tense nailing out contract details with officials and your boss, but you are very conscious that you are representing all the other players.” Mr Smith says his first time bargaining for the players changed the landscape of rugby professionalism. He was part of the team that argued and won guaranteed retainers which gave players much more security. The relationships between the team and rugby administrators (like the NZRU) have seen New Zealand establish worldleading professional development programmes, Mr Smith says. “I am passionate about the projects the Players’ Association drives around professional development. We have a professional development officer within each franchise who is

Conrad Smith

in charge of making sure rugby players are doing something meaningful out of rugby. “Most rugby players miss out on a lot of schooling, training and experience. The Players’ Association has a pool of money that we set aside to fund professional development initiatives. This has come a really long way.” Having come to rugby after studying law has meant Mr Smith can treat rugby more like a game, and not the “be all and end all” like some other players. “If guys didn’t make it they didn’t know what else they would do, whereas I always felt that I was lucky that if I didn’t make a team or get a contract I would go back to law. “My legal experience has definitely helped in controlling my nerves. When I think about nervous moments, I remember sitting in law lectures and listening to lecturer Bob Dugan who interrogated the hell out of us. That prepared me for all sorts of pressure situations.” After rugby, Mr Smith hopes to return to law full-time. “I’m not interested in going overseas to play rugby and earn more money, mainly because I think if I was playing purely for income, I wouldn’t be as passionate, and that passion is what motivates me. “I’m not scared of leaving rugby and having another life, in fact I’m looking forward to it. “I worked and studied really hard to get my hand in law and I really enjoy it. There’s so much I haven’t done in law,” he says. LT

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Law, mediation, whakapapa and historical research By RACHAEL BRECKON Life as a lawyer entails mediation, private investigation, and historical research for Desiree Mahy, staff lawyer at Ngāi Tahu Māori Law Centre. Ms Mahy began working at the Dunedin-based community law centre five years ago after graduating from Otago University in 2006. The centre provides a free service to Māori living within the Ngāi Tahu rohe (region) who need legal advice in regard to proceedings under the Te Ture Whenua Māori Act 1993 in the Māori Land Court and/or articles 1 and 2 of the Treaty of Waitangi. While it handles the “odd” Treaty case, the majority of the work is in relation to

Māori land. To do this well requires pretty good understanding of how tikanga Māori and te ao Māori come in under New Zealand legislation. A basic understanding of te reo is also helpful, Ms Mahy says. In her role, there is also the challenge of finding information needed by the courts. “Because we specialise in Māori land law we have a lot of fact-based challenges like whakapapa, rather than just legal challenges,” Ms Mahy says. “Tracking down family members, you have to have a wee sideline of private investigating going on. It seems that all the little ghosts come out of the closet

when it comes to Māori land.” These “ghosts” include whāngai relationships, deeds of family arrangements and cases where land has left the related family through parents leaving land to their second spouse who then bequeaths it to step brothers and sisters. Ms Mahy’s clients often have poor levels of literacy. Good interpersonal skills, patience and sensitivity are necessary to make the legal process possible. “We get a fairly diverse range of clients in, and so, you have to have good people skills. Because particularly with whakapapa, people are very protective, so they don’t really want to share it. You have to have skills to be able to get them to trust you enough to give you information,” Ms Mahy says. Understanding historical and repealed legislation and the ability to be able to explain to people why they no longer have land any more is another important part of Ms Mahy’s job. However, working as a lawyer at the Ngāi Tahu Māori Law Centre is not without reward. “I like seeing land getting to a stage where it is actually producing a benefit and being rejuvenated,” she says. “I enjoy seeing that owners come in and say that there is no more gorse on that paddock, or we have got a fence up, or a farmer is going to come in and rent it. “We are often the last part of the estate for people. Often it’s quite sad for our clients, but at the same time normally they are quite relieved to finally have it all sorted. So, I quite enjoy being able to help people to finalise matters that have often been sitting around for 50 years,” she says. Although this can also be frustrating, “people come in, and they bring you a will from 1948 that they want you to sort out tomorrow, and you’re like: ‘well give me six weeks to find out what actually applies here’. That’s a lot of whakapapa to track through. “It’s a unique job, in that we can provide a free service in relation to Māori land and also in that there aren’t really any other lawyers that have the skills; and by that I don’t mean legal skills, it’s more the whakapapa,” Ms Mahy says.

Desiree Mahy

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“We have a lot of institutional knowledge here and while I worry some days about the specialist nature of it – it is quite good fun to be able to do that as well.” LT


A LIFE IN THE L AW

From one bar to another By Hannah Grant Barrister David Bleier decided to embark on a career in the law after having an epiphany.

to be as prepared as possible, there’s nothing more important,” he says. Being a barrister is like being a dentist, Mr Bleier says.

It was when he was standing on top of a super yacht in the middle of Monaco harbour, making cocktails for Formula One team owners, that Mr Bleier realised that he had reached the pinnacle of his hospitality career.

“You generally see people at their worst states, but it’s really rewarding helping people find practical solutions to their problems and finding a way forward.” This is exactly what he did in a dispute over an incorporated society based in the Wairarapa. The founder of the society had spent 30 years working on the project and growing the society to over 600 members.

“I was working for 42BELOW and had just done a bartending gig for the New Zealand Film Commission at the Cannes film festival for the release of The World’s Fastest Indian. After which, we went to a job in Monaco at the time that the Grand Prix was on. Between the Cannes film festival and the Monaco Grand Prix I thought that this is probably as good as this hospitality thing is ever going to get,” he says. Now a barrister at Port Nicholson Chambers in Wellington, Mr Bleier initially started his law degree in 1998 but felt too young to practically apply what he was being taught. “I was 17 when I started law school. You are learning about contracts and mortgages and it just didn’t stick for me. I couldn’t see the end result of what I was doing, so I found it difficult.” Mr Bleier had finished his Bachelor of Arts in criminology and art history and half of his law degree when he decided to take a year off. One year turned into five, but after travelling the globe and experiencing the aforementioned hospitality revelation, he returned to complete his law degree. “I was 27 when I went back to finish my law degree. I was now a little more experienced in the world, so law had more of a practical application. I was a bit older, a bit longer in the tooth and had spent time in the real world, so it was going to be a bit easier to relate to the problems that clients were experiencing. “I still didn’t know if I wanted to practise law after finishing my degree. But one of my lecturers, Dr Campbell McLachlan QC, after asking if I intended to practise at the end of my degree and I was uncertain because of all of the preceived hard work, looked

When he stepped out of the society for a year for personal reasons, other people took over and – in his eyes – failed to progress the society. When Mr Bleier’s client tried to return as President, the new council tried to obtain a court order preventing him from doing so. David Bleier

me square in the eye and said ‘any career worth pursuing is going to be hard work and you’re wasting your time if you’re doing anything else’.” “It’s fair to say I took this on board,” he says. Mr Bleier started his legal career at DLA Phillips Fox. His supervisor, Kevin Sullivan, introduced Mr Bleier to the practice of insolvency law. Complete with a secondment with a liquidator, he knocked out three years at the firm before leaving to join Mr Sullivan at Port Nicholson Chambers in March 2010. Getting in the courtroom was Mr Bleier’s main objective. Since liquidators and receivers were the only ones going to court when he started out, it seemed a good option to specialise in this area. “I love the courtroom. You can be as prepared as you like, but it’s that adrenalin of not knowing what is going to come up that’s exciting. The judge may focus on your one little point of weakness. “It’s thinking on your feet, which you get better at it the more that you do it. The first time you are terrified as things can always go either way. You have

“Helping my client resolve his problem and making their application unsuccessful was really fulfilling. He was re-elected by a land slide majority and the others were turned out. He was one of the most appreciative clients that I’ve ever had,” he says. The legal profession is changing towards an increasing focus on meeting greater client expectations and specialisation, Mr Bleier says, and this shift is part of the reason why he became a barrister. “I think there is definitely a place for big firms in the New Zealand legal market, but I think that it’s going to come down to more boutique practitioners that specialise in specific areas. So rather than going to the same law firm that your family has been to for the last hundred years, people will find out what their particular problem is and then go and see a specialist,” he says. LT

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CONTACT CHRISTINE WILSON christine.wilson @lawsociety.org.nz

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A LIFE IN THE L AW

Small towns have career prospects too By Elliot Sim When considering a career path in law, many would look to large inner city law firms for fast career progression, work variation, designer work attire and lattes. The draw of the metropolitan lifestyle is to the detriment of smaller towns in New Zealand where legal services are not readily accessible, as most would not consider forging a career in a rural area. This trend was evident in LawTalk 792 (30 March 2012), which revealed that 43% of all lawyers in New Zealand were based in Auckland with 20.2 % in Wellington, 8.5% in Christchurch and 2.4% in Dunedin respectively. Rural practitioner Ian McDonald, 57, is Wairoa’s only lawyer. He thinks young lawyers should look beyond the “pinstriped, latte’d world”, and consider plying their trade in rural towns to strengthen future career prospects by being immersed in multiple areas of the law. “A lot of young lawyers I talk to are fairly overworked and quickly jaded and that’s because of the pressure of larger firms. In my personal experience, practising in a smaller town in a rural area is far more rewarding and varied than in larger centres. “You’ve really got to be a general practitioner rather than a specialist. It’s a completely different practice and it’s a chance to be a general practitioner rather than sitting in cupboards doing financing all day,” he says. Upon graduating from Victoria University in 1976, Mr McDonald worked as a solicitor for the State Advances / Rural Bank, with aspirations of getting into private practice. He later applied for jobs in both Gisborne and Hawke’s Bay, but was offered a job in Wairoa, where he has worked for over 30 years. He was mentored by David Galbraith, who was a rural practitioner at the time. “It was very much a learning curve. Obviously what they teach you in law school is quite different to practising law at the coalface.” Working in a town of 5,000 people and with 4,500 in the surrounding district, Mr McDonald says he deals with a “whole raft of general legal matters”.

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Ian McDonald

In my personal experience, practising in a smaller town in a rural area is far more rewarding and varied than in larger centres.

IAN M CDONALD On a daily basis, he acts for estates and on conveyancing matters, as well as refinancing, power of attorney and other such transactions. Mr McDonald believes there are certain challenges from working in a small town, as in some cases he would act for both sides in a conveyancing deal. It is this unique position, which he sees as a positive aspect rather than a negative one. “You’ve got to be keenly aware of potential conflicts of interest.

“It keeps me extremely honest and aware of the bills I send out because I will mix with these people socially. If I transgressed, that would spread like wildfire. If I overcharge or it is perceived, 20 or 30 of my clients would know that immediately.” The lack of anonymity in small towns could be a deterrent to practising in a rural area. He says the real satisfaction he has experienced during his career in Wairoa is the true sense of helping people achieve their goals. “If you’ve got nothing to hide, there’s nothing wrong with living in a fish bowl. “People often need a family advisor, a counsellor or psychologist, more necessarily than a lawyer, but in a small town like this you often end up doing all of that,” Mr McDonald says. Mr McDonald says being immersed in different areas of the law, the relationships made and the easy access to outdoor pursuits should be enough to make a young lawyer swap the suit for a pair of gumboots. “If there’s a young practitioner who is into hunting and fishing and the great outdoors, these are the ideal areas for them. “I’m two minutes from work, there are no traffic lights and I’m five minutes from the golf club… Can it get better than that?” LT


PEOPLE IN THE LAW ON THE MOVE

Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. You may also send photos (preferably colour) in hard copy, on disk or by email in JPG format scanned at 300dpi. Items should be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, ph (04) 463 2982, fax (04) 463 2985, email editorial.lawtalk@lawsociety.org.nz. The usual editorial discretion applies.

Duncan Cotterill Lawyers has appointed two new associates from within its ranks. Catherine Milner, of the Wellington office, is a member of the national tax team. She specialises in taxation issues, and regularly provides tax advice on commercial structuring, property transactions, trusts, and international transactions. She also regularly assists clients in dealing with tax disputes with the Inland Revenue Department. In Christchurch, Janine Ballinger specialises in all areas of property transactions, with a particular emphasis on commercial, rural and residential sales. She also has considerable experience with real estate companies, and the formation of trusts in the area of asset protection. Janine is working closely with clients on earthquake-related issues.

Mieke Upton has joined Buddle Findlay’s Wellington office as a senior solicitor in the banking and finance team, specialising in tax and anti-money laundering.  Before joining Buddle Findlay, Mieke worked in the tax team at another firm. Mieke has also worked in the anti-money laundering teams at an international law firm and financial institution in London.

Catherine Stewart recently joined the independent bar as a barrister sole at Chancery Chambers.  Catherine, who has practised for 20 years, specialises in employment law.  Her areas of expertise include business restructurings and redundancies, disputes and personal grievances, restraints of trade and protection of confidential information, medical incapacity issues and employment law issues in the education sector.

Rob Hart has been appointed a director of Ellice Tanner Ltd in Hamilton. Rob is a commercial lawyer and works across a variety of sectors.  He has developed niche specialities in land use change, the Emissions Trading Scheme and the Overseas Investment Act. 

litigation.

residential and commercial property matters. Stephen Cottrell recently established Cottsport, a specialist sports advisory practice based in Auckland. Mr Cottrell is a former General Counsel of the New Zealand Rugby Union and current consultant at Minter Ellison Rudd Watts. He is joined at Cottsport by Christy Whelan who takes on this new role in addition to his ongoing position as an associate at entertainment and media law firm Sinclair Black.

Katie Graham has joined the private practice team at Ronayne HollisterJones Lellman in Tauranga.  Katie specialises in family law, relationship property and civil

Allan McRae has joined Lowndes Associates as a partner. Mr McRae specialises in corporate, commercial and securities law and has extensive experience in M & A deals, including advising in relation to NZX Listing Rules and the Takeovers Code. He regularly advises in relation to joint ventures and other commercial contracts as well as on offers of securities, advising both issuers and trustees. Mr McRae was previously a partner in a trans-Tasman law firm.

Andrew Shortall has joined Brookfields as a solicitor in the business, property, finance group. Mr Shortall’s primary focus will be on property law, assisting clients with

Webb Farry has made a number of recent new appointments. Aimee Edwards joined the firm in April as an associate in the commercial/ property team, after practising in Christchurch for over 10 years.

LAWTALK 802 / 17 AUGUST 2012

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PEOPLE IN THE L AW Her main areas of specialty include commercial contracts, property, finance and estate planning. Chris Thomsen joined Webb Farry in midJune after eight years with another Dunedin firm. Chris is a specialist resource management lawyer and leads that section of the litigation team. He is also an experienced civil litigator. Christian Peters and Emily Lay recently commenced legal practice,

joining Webb Farry as graduates in the commercial/property and litigation teams respectively.

PEOPLE Justice Susan Glazebrook has been appointed a Judge of the Supreme Court. Justice Glazebrook has been a Court of Appeal Judge since May 2002. Before being appointed to the High Court bench in June 2000, she was a partner of Simpson Grierson, specialising in taxation and finance law, as well as a member of a number of commercial boards and government advisory committees. Justice Glazebrook’s appointment to the Supreme Court began on 6 August. Justice Christine French has been appointed a Court of Appeal Judge. In 2008, Justice French was appointed to the High Court bench, based in Christchurch. She graduated from Otago University in 1981 and went on to attend Oxford University on a Rhodes Scholarship, graduating BCL in 1983. In 1984,

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Justice French started practice with the Invercargill firm French Burt Partners, specialising in general civil litigation and employment law.  Justice French became a partner in French Burt Partners in 1988.  Her appointment to the Court of Appeal began on 6 August. Auckland lawyer Sarah Katz has been appointed a High Court Judge. Justice Katz was sworn in on 15 August and will sit in Auckland. After graduating from Otago University in 1987, Justice Katz went on to complete an LLM at the University of London in 1992. She began practice with Chapman Tripp in Wellington in 1987.  After working overseas, Justice Katz returned to New Zealand and practised at Buddle Findlay, becoming a partner in 1997. Most recently Justice Katz was senior litigation partner of Russell McVeagh in Auckland, specialising in commercial litigation with a particular focus on contractual disputes, companies and securities law and banking and tax litigation. Graeme Reeves has been reappointed Chief Gambling Commissioner for a three-year term. Mr Reeves is a Wellington lawyer. The Gambling Commission is an independent statutory decision-making body. It hears casino licensing applications, and appeals on licensing and enforcement decisions made by the Secretary of Internal Affairs in relation to gaming machines and other non-casino gambling activities. Dr Zoe Pearson has been appointed a member of the Immigration and Protection Tribunal. Dr Pearson is a lecturer at Keele University School of Law in the United Kingdom and has 15 years experience in human rights and international law. She holds a PhD in international law and previously worked as a legal advisor for the Ministry of Justice. Ms Larissa Wakim has also been appointed a member of the Immigration and Protection Tribunal. Ms Wakim is an investigator at the International Criminal Court at The Hague. She worked in Cambodia, Egypt, USA, UK and Chad in aspects of human rights law before starting with the Office of the Prosecutor at the International Criminal Court.

Robert Kee has been appointed the Director of Human Rights Proceedings. Mr Kee graduated with an LLB (Hons) from the University of Auckland in 1986. He is a barrister sole with extensive experience in criminal litigation involving human rights issues before the District Court, High Court and Court of Appeal. Mr Kee was recently the convenor of the ADLS Inc Criminal Law Committee and has been a member of other similar committees. Oamaru lawyer Bill Dean has been awarded the Spirit of Aegis for his contribution to North Otago rugby. The award is presented by Law Alliance NZ, an alliance of independent legal practices, recognising outstanding community service by a lawyer. LT

CLANZ award donated to Community Law The 2012 CLANZ LexisNexis Private Sector In-House Counsel of the Year has donated her prize to Community Law. Victoria Spackman’s prize was a $2,000 spend at LexisNexis. The CEO of Community Law Centres o Aotearoa, Liz Tennet, says the $2,000 will be spent on staff training and the purchase of legal reference manuals not normally affordable for staff working in community law centres around New Zealand. “We are very grateful for the donation,” Ms Tennet says Ms Spackman has been legal and business affairs manager at the Gibson Group – a role she gave up in April to become the Chief Executive of the company. She says she was delighted and surprised to receive the award. “Part of the prize was a contribution from LexisNexis of books or other products from them. Because of the sort of business we do, the Gibson Group’s need for LexisNexis products is limited so I decided to make sure that the prize went where it could have its greatest impact.  “I admire the work of the Community Law Centres around the country so I thought they would be suitable recipients.  I’m very pleased that they’ve taken this offer up and will be using the materials to help people all over the country,” Ms Spackman says. LT


Insights into NZ and UK criminal justice system differences By Andrea Ewing It is not every day that one has the opportunity to watch four leading silks argue an asylum appeal in the United Kingdom Supreme Court, to discuss cross-examination tactics with a Queen’s Counsel appearing in a serious sex trial or to debate the reform of criminal case management with a Crown Court judge. These were just a few of the many invaluable experiences I had during my six weeks in London as a Pegasus Scholar. By way of background, the Pegasus Scholarship is an exchange programme for young advocates, organised and funded by the Pegasus Trust and administered by the trust and the Inner Temple (one of the four Inns of Court for England and Wales). Each year, New Zealand sends scholars to London for six weeks, giving them the opportunity to “shadow” experienced barristers and observe them in action. During my time in London, I was also fortunate to spend three full days with judges from the Supreme Court, Court of Appeal and Central Criminal Court (otherwise known as the Old Bailey). As is often the case, I found that experience of a different system gives insight into one’s own. With that comparative project in mind, here are three aspects of the British criminal system that differ markedly from our own: one educational, one procedural and one substantive.

Advocacy training Perhaps naively, I was unaware of the extent to which barristers in the United Kingdom receive separate and quite intensive training in advocacy skills. After graduating, students in the barrister stream (the Bar Vocational Course) spend an entire year learning practical advocacy skills, including how to make legal arguments, handle witnesses and deal with ethical dilemmas. The next stage is pupillage, a dauntingly competitive process that sees over 3,000 hopeful candidates apply each year for around 550 spots.

Assuming you are among the lucky few to be accepted, the first six months of pupillage will be spent “shadowing” a barrister. Many aspiring barristers will already have undertaken several “minipupillages” during their undergraduate degree. For the final six months of the pupillage, the pupil is able to accept instructions and begins appearing in the Magistrate’s Court. Barristers are then required to attend further training courses within the first few years of practice. With compulsory training of this intensity and duration, it is little wonder that the standards of advocacy at the English bar are consistently very high. Moreover, the use of skeleton arguments, rather than full written submissions, has maintained the traditional importance of oral advocacy.

Criminal case management The UK’s Criminal Procedure Rules (2011) impose a duty on judges to manage criminal cases actively, in order to deal with the case efficiently and expeditiously. This includes by ensuring that evidence, whether disputed or not, is presented in as short and clear a manner as possible. Parties are under a duty to assist with this task – encouraged, no doubt, by the potential for a wasted costs order to reflect delay caused by noncompliance. (According to one member of the judiciary, these orders only had to be used a few times before case management began to police itself.) To assist in the early identification of issues in dispute and to minimise witnesses being called in addition to those genuinely necessary, counsel are expected to provide a joint witness list, setting out the disputed issues in relation to each witness’s evidence and time estimates for evidence-in-chief and cross-examination. Defence counsel must also provide a defence case statement (DCS), setting out in summary the defence case for trial. This document then provides the basis for disclosure obligations.

Andrea Ewing

Rather than focusing on relevance, the prosecution is required to disclose only material that undermines the prosecution case or assists the defence case. What’s more, the hapless defendant that deviates from the DCS in his evidence can be cross-examined about this at trial.

Limits on right to silence I could hardly believe my ears when I heard my first closing address at the Old Bailey. The prosecutor blithely launched into a criticism of the accused’s decision to give a “no comment” interview to the Police, following legal advice. My surprise, however, was shared by neither the bench nor defence counsel. It seems there is now significant leeway about when the allegations faced by an accused “called for an answer”, with the jury generally being regarded as the most appropriate body to determine this question. Add to this the requirement to disclose the defence case well before the trial and the prospect of an accused being cross-examined about any evidence given that is inconsistent with or omitted from the DCS; and it becomes clear that the United Kingdom has accepted significant inroads into the right to silence. (Indeed, the UK position makes New Zealand’s recent changes in this area look tame by comparison). Those are just three of the insights I gained during my time in London – to say nothing of the lessons learned as an advocate. For this very valuable opportunity, I’m grateful to the Pegasus Trust, the Inner Temple, especially our very hospitable liaison, Eamonn, and to Luke, Cunningham & Clere for allowing me to take leave during a busy time. LT

LAWTALK 802 / 17 AUGUST 2012

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IN-HOUSE What the boss wants By RACHAEL BRECKON LawTalk asks chief executives what they want from their in-house counsel. In-house lawyers need to stay connected to the wider profession, and the profession needs to understand the importance of inhouse counsel, according to Ministry of Foreign Affairs and Trade chief executive John Allen. “It is really important [in-house lawyers] retain [their] professional networks, because, what I want from my corporate counsel is not the answer to everything. I accept that you can’t possibly know it all. They do need to know, though, who we should be talking to if they don’t know the answer,” the former New Zealand Post Chief Executive and Rudd Watts & Stone partner says. While the onus of maintaining professional networks and engaging in wider professional engagements and conversations is on the individual, Mr Allen says there is still a divide between in-house lawyers and the wider profession. “Corporate lawyers get kind of forgotten or are sometimes treated as second class citizens by the profession. I think that’s wrong and creates a barrier to lawyers in commerce getting more involved with the wider profession,” he says. “I don’t think there is any basis for [discriminating against in-house lawyers]. The best corporate counsel are as a good as the best practitioners in other areas of professional practice.” In-house lawyers also need to maintain networks and knowledge of the

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LAWTALK 802 / 17 AUGUST 2012

industry they work in, says Mr Allen. “If you are going to be a lawyer in commerce, or in the public sector, you have to develop that wider understanding of the environment in which you are operating,” he says. “It is not good enough to know about the company-specific legislation. You have to actually get involved in the business of the organisation you are participating in and develop a real interest and understanding of it. “Because in the end, that’s what you offer over going out to a firm. You offer the opportunity to frame your advice with a much deeper understanding of the opportunities and constraints facing the organisation.” Other attributes Mr Allen expects in his in-house lawyers are courage and imagination. “They do need to be courageous because you want them to be challenging perceptions and making sure the legal context is well understood,” he says. An in-house lawyer needs imagination because the immediate response of any chief executive to “no” is how we can structure it to make it “yes”. Interpersonal skills are important in order to build the trust and confidence of colleagues, so in-house lawyers can get involved in projects early, Mr Allen says. “It’s that combination of legal skills and interpersonal skills of industry and organisational knowledge of interpersonal relationships, and significant personal integrity and capacity to carry the legal messaging into organisational debate that I think is most important.” According to New Zealand Qualifications Authority Chief

Executive Karen Poutasi “a good inhouse lawyer knows the issue before it comes up”. This is through thorough knowledge of the organisation. “Because your in-house person knows your business, they are really aware of your business and risk management. The people I have had working for me, they will put forward the legal risks and then they will say: ‘this is how you can manage those risks effectively’. “With that knowledge you have got a real efficiency of engagement. So you don’t also have to explain this person thinks this, or that person thinks that, because they know them because they are part of the organisation. That produces a huge efficiency, from my perspective of chief executive,” she says. When hiring an in-house lawyer, Ms Poutasi says, outside being capable of giving excellent legal advice, she looks for good interpersonal skills and a good match with organisation. “I am looking for that edge or that ‘can do’ approach,” she says. LT

Skills chief executives seek •

Courage

Imagination

Good interpersonal skills

Good legal networks

Good industry networks

Good industry knowledge

Integrity


LAW REFORM REPORT Defamation law problems warrant review

“The effect of the decision is to move New Zealand away from other common law jurisdictions,” the Law Society says.

The Law Society’s submission on the Ministry of Justice’s 2012 regulatory scan of tort legislation notes that a number of issues have arisen in interpreting the Defamation Act 1992 which have divided lawyers specialising in defamation.

While such a move might be unwelcome, the Law Society says it is not enough to justify a change in the law.

The Law Society believes a full review of the Defamation Act should be undertaken, to ensure the public interests are appropriately balanced. The Law Society says s8 of the act, which covers the defence of truth and alternate meanings, allows a defendant only to plead the defence of truth to the meaning alleged by the plaintiff. A Court of Appeal decision in 1986 means that the defendant cannot plead and attempt to prove a lesser defamatory meaning than that alleged by the plaintiff. With the new Defamation Act 1992, some lawyers expected that alternate meaning defences – known as Polly Peck defences – would be permitted in New Zealand. However, a further Court of Appeal decision in 2005 said the act should be interpreted in such a way as to exclude Polly Peck defences.

The Law Society has recently filed submissions on: • Administration of Community Services and Orders Bill • Building Amendment Bill (No. 4) • Bail Amendment Bill • Ministry of Justice’s regulatory scan of tort legislation – Defamation Act 1992 • IRD Factual Review for Binding Rulings The submissions are available at www.lawsociety.org.nz/ publications_and_submissions/ submissions.

“However, the real concern for some practitioners is that it provides a tactical advantage to plaintiffs. It may be true that not allowing such defences simplifies pleadings but it should not do so at the expense of fairness to defendants.” The Law Society says it is desirable to review whether s8 should be amended to allow Polly Peck defences. The Law Society’s comments also point to a lack of clarity in s38 of the Defamation Act, which is entitled “particulars of the defence of truth”. A Supreme Court decision in 2010 noted that, despite the heading, the section should not be viewed as applying to the defence of truth, but only to the “rolled-up plea” in support of honest opinion. The Law Society says that the scope of the section should be clarified to remove any doubt as to its application. A further division among defamation lawyers occurs with the Supreme Court’s view that statements by a third party cannot be relied on as particulars or evidence to support a defence of truth, unless the defendant can prove the truth of the underlying allegation. “The potential for the decision to have a chilling effect on the media in New Zealand has been identified as a concern but the opposing view is that if serious allegations are made, a proper factual foundation for making them must be made out.” This is another area where consideration should be given as to whether a change in the law is warranted to permit reliance on statements from an objectively reliable source, the Law Society says. Other sections which are identified as posing problems are s43 (claims for

damages) and s47 on notice of multiple actions (described by the Law Society as “undesirably vague”).

Administration of Community Sentences and Orders Bill – workability problems identified The Law Society has raised concerns as to the workability of new provisions in the Administration of Community Sentences and Orders Bill, dealing with sentences of supervision, intensive supervision and community detention. In its submission on the bill, the Law Society points to potential difficulties in determining when time ceases to run in cases of non-compliance with sentence conditions. A further concern is that an application to vary or cancel may be ill-founded, but the bill makes no allowance for this. “The alleged non-compliance may be disputed. If the court is not satisfied that there was non-compliance, then the application to vary or cancel will be declined, but the sentence has still stopped running, and an offender will be punished with a longer sentence even if they have not done anything further wrong.” To resolve the problems, the Law Society recommends that the bill should be amended by redrafting the three sections to better provide information on when time ceases to run.

Building Act amendments need remedial work The Law Society has submitted that provisions in a new Part 4A – to be inserted in the Building Act 2004 by the Building Amendment Bill (No 4) – need amendment to fix a number of issues. The problems include a proposed section that requires a building contractor to provide prescribed information before entering into any

LAWTALK 802 / 17 AUGUST 2012

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L AW REFORM REPORT residential building contract. However, the section does not require the prescribed information or prescribed checklist to be provided in writing. “Provision of this information orally may lead to uncertainty as to whether the information was provided, or provided accurately,” the Law Society says. After identifying a number of other problems and inconsistencies in provisions contained in the proposed new part, the Law Society submission on the Building Amendment Bill (No 4) suggests 13 separate amendments to Part 4A, to enable the legislation to be workable and achieve its purpose.

Amicus brief The United States Supreme Court – amicus brief by Amnesty International, NZLS and others The New Zealand Law Society joined Amnesty International, the Law Society of England and Wales and others in an amicus brief filed in January 2012, urging the United States Supreme Court “to consider international law and opinion … when applying the Eighth Amendment’s clause prohibiting cruel and unusual punishments” in relation to life sentences without parole for juvenile offenders.

Rachael Hayward

The Supreme Court delivered its judgment on 25 June 2012, and ruled that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders.

Law Society appoints new General Manager

Coming up – current law reform consultation

Rachel Hayward has been appointed as the Law Society’s General Manager Law Reform and Sections.

The Law Society is currently preparing submissions on numerous bills and government discussion documents. Members 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:// my.lawsociety.org.nz/law_ reform/work_in_progress. For more information on NZLS law reform activities, contact vicky. stanbridge@lawsociety.org.nz. LT

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After earning a BA and LLB (Hons) (First Class) from the University of Canterbury, Rachel went to work for Kensington Swan in Wellington, taking a year out to complete a Masters of Laws at the University of Cambridge. She returned to Kensington Swan, working in general commercial litigation and medical disciplinary law. In 2002, Rachel joined the Law Commission as a senior legal and policy advisor. For the last 18 months she has also been seconded parttime from the Law Commission to the Cabinet Office working on the development of new legislation resulting from the Government’s adoption of recommendations made

by the Commission in its review of the Civil List Act 1979. Rachel said she was drawn to the Law Society due to the important role it plays in the law reform process. “The depth of experience and expertise the Law Society can draw on through its committees means its contributions to the Law Commission’s consultation processes are really significant. “I always knew the submissions we received from the Law Society would be impartial, considered and accurate. “The Law Society is a very special organisation and I’m really looking forward to being part of the team,” she said. Rachel is married to Peter Fenton and they have three children: Nick, 18, Jessie, 16 and Katie, 12. LT


SECTION NEWS CLANZ IN-HOUSE LAWYERS NZLS EST 1869

The Law Society’s Section for in-house lawyers, CLANZ, hosted a General Counsel Forum on performance management in the legal team in Auckland, specifically on setting and managing key performance indicators. CLANZ also recently received a great response from members to the Leading Practices and Benchmarking survey focused on in-house best practice, and organised by CLANZ and its Australian counterpart ACLA.  The results will be available shortly. The section recently established CLANZ Community, a LinkedIn group exclusively for networking and discussion by practising in-house lawyers. CLANZ encourages members to keep an eye out for general counsel forums in Auckland and Wellington in August with Simon Power speaking about influencing regulatory change, and the Working Parents Forum to be focused on leading young lawyers and how they were parented/encouraged.

FAMILY LAW SECTION

NEW ZEALAND LAW SOCIETY

NZLS EST 1869

The Family Law Section (FLS) recently contributed to the Law Society’s submission on the Child Support Amendment Bill, which proposes the most significant changes to the child support scheme since its inception 20 years ago.  Professor Bill Atkin and FLS Deputy Chair Catriona Doyle presented the Law Society’s submission to the Social Services Select Committee on 1 August. The submission stressed that the bill misses the opportunity to address gaps in current child support legislation, such as making voluntary agreements binding.

The FLS Executive Committee planning meeting was held on 18 and 19 June. Following this meeting, the section has started implementing changes such as altering the structure of FLS standing committees to improve FLS responsiveness to Law Society law reform projects, and developing an annual action plan for 30 FLS regional representatives to boost the number of networking and education opportunities for members. The section is also continuing its engagement with the Ministry of Justice to seek a solution to significant problems family lawyers are experiencing in Auckland as a result of centralisation of court services/ implementation of the Auckland Services Delivery Programme.

PROPERTY LAW SECTION NEW ZEALAND LAW SOCIETY

NZLS EST 1869

The Property Law Section (PLS) recently contributed to the Law Society’s submission on the Building Amendment Bill (No 4).  The PLS Building Act Review working group drafted the submission and requested an opportunity to review the draft regulations that will arise from the amendment bill. The successful NZLS CLE Ltd Property Law Conference was held in Auckland on 18 and 19 June, chaired by PLS deputy chair, Andrew Logan. The PLS Executive Committee meeting was held in Christchurch on 28 June, followed by a regional lunch meeting for local property lawyers (PLS members and non-members). The section is currently liaising with insurance companies to clarify their approach to deeds of assignment in property sales, with a view to informing PLS members and Canterbury property lawyers. PLS is also working with REINZ to prepare guidance for property lawyers on vendor information

packs and a Real Estate Agents Disciplinary Tribunal decision, which placed a duty on licensees to advise prospective purchasers on title issues. The next PLS-LINZ “lunch and learn” mini seminar will be held in Dunedin in September. LT

Plain English awards The Plain English Awards are now open for entries. Organised by the WriteMark Plain English Awards Trust, the aim of the initiative is to honour the organisations and people who are trying to make the world a better place by banishing jargon and gobbledygook.  Lawyers with a focus on clear legal writing have featured in past awards. In the last two years Martelli McKegg has been a finalist in the award for the best plain English website, private sector. Also in 2010, the Ministry of Justice was a finalist in best plain English project section for its project Civil Justice in the District Courts of New Zealand. Going back a few years, it was intellectual property firm A J Park who featured strongly. In 2006, A J Park was the winner of the plain English champion best organisation award. The next year they were a finalist in the best plain English document, private sector section, with its Guide to trade marks. It was a finalist again in the 2008 awards, again in the plain English document, private sector section with its Client Charter. In 2009, Julie O’Brien, Simpson Grierson’s professional development manager, was a finalist in the best individual or team section. Entries for the awards close on 21 September and the awards ceremony will be held on 29 November. See www.plainenglishawards.org.nz.

LAWTALK 802 / 17 AUGUST 2012

17

LT


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CORPORATE GOVERNANCE – A PRACTICAL HANDBOOK

BOOK OF THE MONTH 4th Edition • David Grinlinton

w and Practice

THE BOOKSHELF RESIDENTIAL TENANCIES: THE LAW AND PRACTICE, 4TH EDITION Residential 4th Edition David Grinlinton Tenancies: The Law and Practice

By David Grinlinton

Substantially updating the third edition, published in 1998, this text includes comprehensive references to Tenancy Tribunal, District Court, High Court and Court of Appeal decisions, along with the Residential Tenancies Act 1986. The focus is on providing a practical handbook for landlords, tenants and lawyers who need a first reference to the Act. The author is Associate Professor of Law at the University of Auckland. (LexisNexis NZ Ltd, July 2012, 978-1-87751100-4, 328 pages, paperback, $92 (GST incl, p&h excl)).

DISQUALIFICATION FOR BIAS By John Tarrant University of Western Australia Law Professor John Tarrant looks at the disqualification principle and the test that courts apply in different courts. He examines the principle in the context of a wide range of functions including judges, jurors, administrative decisionmakers, inquiries and sporting clubs. Available remedies and procedural issues are also considered along with relevant case law and statutes from a number of jurisdictions, including Australia, New Zealand, Canada and the United Kingdom. (Federation Press, June 2012, 978-1-862878-80-8, 416 pages, hardback, A$150).

By Karen Martyn With a CD included (containing checklists, templates and tables), this is intended to provide practical guidance for anyone carrying out or advising on corporate governance. As well as information on the key duties and requirements, the book looks at insurance and indemnity, risk management and management of stakeholder and shareholder relations. (CCH NZ Ltd, July 2012, 978-0864758-74-3, 316 pages, paperback with CD included, $120 (GST and p&h excl)). ENRICHMENT IN THE LAW OF UNJUST ENRICHMENT AND RESTITUTION By Andrew Lodder This text analyses the concept of enrichment and looks at its implications in restitutionary awards. English barrister Andrew Lodder believes that enrichment may be characterised either factually or legally and he looks at the consequences of that distinction. (Hart Publishing, July 2012, 978-1-849463-29-4, 276 pages, hardback, £65). EVIDENCE CODE,

Evidence Code 2ND EDitioN

This convenient legislation book, Evidence Code, Second Edition, is current as at 21 May 2012, and includes the necessary statutory material for your ease of reference in practice or study.

• Financial Adviser’s Legislation

The book contains the following consolidated legislation:

• Property Law Statutes, Sixth Edition

• Evidence Act

• Evidence Regulations

Other titles in the Butterworths Legislation Series include:

• Immigration Legislation

• Relationship Property Legislation, Third Edition • Resource Management Legislation, Fourth Edition • Securities Legislation

• Commercial Legislation, Third Edition

• Company Law Statutes, Ninth Edition • Crimes Act 1961, Sixteenth Edition • District Court Rules 2009 • Employment Legislation • Family Law Legislation, Fourteenth Edition

Related LexisNexis Titles

• Chris Gallavin Evidence (2008)

• Don Mathieson QC (ed) Cross on Evidence (looseleaf ed) • Brenda Midson Butterworths Student Companion: Evidence (2nd ed, 2011)

customer.service@lexisnexis.co.nz www.lexisnexis.co.nz

Butterworths Legislation Series-Evidence Code.indd 1

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LAWTALK 802 / 17 AUGUST 2012

2ND EDITION

• New Zealand Intellectual Property Materials

EC

The legislation has been consolidated as at 21 May 2012. The book includes an overview of the Evidence Act 2006 (extracted from Cross on Evidence), the complete Evidence Act 2006 and the Evidence Regulations 2007. (LexisNexis NZ Ltd, July 2012, 978-1-927183-34-2, 137 pages, paperback, $40.25 (GST incl, p&h excl)). Evidence Code

Butterworths Legislation series

2ND EDitioN

28/06/12 5:05 PM

THE HUMAN RIGHT TO WATER: Significance, Legal Status and Implications for Water Allocation By Inga T Winkler The UN General Assembly and Human Rights Council recognised the human right to water in 2010. UN legal adviser and University of Düsseldorf lecturer Inga Winkler looks at the legal status and meaning of the right to water by analysing its legal foundations, legal nature and context. The human right to water has wide ranging implications for the distribution of water, and the wider issues raised have a real connection to the current discussion in New Zealand. (Hart Publishing, June 2012, 978-1-849462-83-9, 376 pages, hardback, £50)).

Community Law Manual published online Community Law Centres o Aotearoa, or Community Law, has published an online edition of the Community Law Manual. While the online version is freely available, print copies may also be purchased (the print version was previously published as the Legal Reference Manual). The objective of the manual is to present clear and accessible information on the law relating to many areas of community and personal life, with answers and solutions to common legal questions. Community Law says the Community Law Manual is a tool for community workers, support staff, advocates and lawyers to help people access legal information in plain English. The 28-chapter online manual can be found at http://www. communitylaw.org.nz/ community-law-manual/. LT


The duty of respect and courtesy By DUNCAN WEBB* It is not (yet) compulsory for lawyers to be nice. They must, however, be courteous. The Rules of Conduct and Client Care tell us that “a lawyer must at all times treat a client with respect and courtesy” (r 3.1), that “a lawyer must treat other lawyers with respect and courtesy” (r 10.1), and that “a lawyer must, when acting in a professional capacity, conduct dealings with others, including self-represented persons, with integrity, respect, and courtesy” (r 12). For good measure, there is the catch-all that a lawyer must also “promote and maintain proper standards of professionalism in the lawyer’s dealings” (r 10). This is sometimes more easily said than done. One challenge is the fact that what amounts to appropriate behaviour varies with context. There are situations where a robust exchange that bruises some sensibilities is permitted (and useful). However it appears that even then there are some limits. The finding that it was unsatisfactory conduct for a defence lawyer to tell a prosecutor to “f*** off” when asked in the court whether she was ready to proceed is unsurprising (LawTalk 782, 7 October 2011, p21). On occasion lawyers will need to be blunt and give clients some home truths, not only about the legal prospects of their case, but also about more personal matters. Good practice would, of course, suggest that a lawyer who is telling a client that they are obstructive, stroppy, unreasonable, (or any other multitude of criticisms that might obstruct the progression of a matter) should do so as gently as possible. In one such a case a lawyer who was “firm and clear” in telling a client that her insistence on a course of action was not assisting settlement (ie, she was stroppy) was found not to be in breach of the courtesy rule (BI v YP [2011] NZLCRO 22 (4 April 2011)). In a similar case, a lawyer using “firm language” to tell a demanding client that he had other files to attend to and could not be at her beck and

call was found not to have breached professional standards. Of particular note in this case was the recognition that although this was, in fact, offensive to the client, the proper test required an objective measure of what kind of communications were acceptable, and should be assessed on the basis of whether the conduct would be considered by other lawyers or members of the public as being unacceptable. Similarly, letters to other lawyers or third parties may need to be phrased in strong terms and make clear that certain consequences will follow if a particular course of action is taken. An example of such correspondence is “cease and desist” letters, which may well be unpleasant and intimidating (and intentionally so). However, provided that they are professional in tone they will not be in breach of any professional obligation of courtesy or professionalism (U v F [2009] NZLCRO 10 (6 April 2009)). Similarly, it has been found that a threat that any proceedings would be met by an application for indemnity costs was not in breach of any obligation of courtesy. It was, however, noted that “if a costs warning was issued without any reasonable basis for the belief in the futility of a proceeding, and where it might reasonably be concluded that the warning was given for no purpose other than to apply improper pressure to refrain a would-be claimant from issuing proceedings, this may well amount to a breach of Rule 10”. However, in the circumstances that was not the case (IP v SI [2012] NZLCRO 12 (27 February 2012)). The duty of courtesy will extend to former clients. A lawyer who visited a former client and attempted to persuade him in an aggressive and intimidatory manner to withdraw a costs complaint was found to have acted inappropriately (LawTalk 742, 30 November 2009, p19). In fact it would appear that lawyers need to be very cautious to not act in an overbearing manner when seeking to resolve complaints made

by clients. While it is permissible (and encouraged) for lawyers to seek to resolve complaints directly with clients, Lawyers Standards Committees tend to be suspicious of advantage taking – as where a lawyer drafted a letter of withdrawal of a complaint and presented it to an elderly and infirm client for signing (LawTalk 790, 2 March 2012, p31). Courtesy may also extend to timeliness of response. Where a lawyer failed to respond to correspondence (relating to a funds held by an estate) the Legal Complaints Review Officer considered that this was a breach of the duty of courtesy to the other practitioner, there being no explicit duty in the rules to respond in a timely way to a lawyer or third party (R v D [2009] NZLCRO 28 (19 June 2009)). Refusing to deal with a third party entirely may also be a breach of the courtesy rule. In Tranent v Abingdon [2009] NZLCRO 20 (22 May 2009), a lawyer had refused to deal with a difficult self-represented party other than through a lawyer. It was ultimately found that this amounted to unsatisfactory conduct. However in finding that the absolute refusal was inappropriate, the LCRO noted that lawyers practice in what is often a necessarily conflict-ridden environment and that the obligations of respect and courtesy to third parties (including self-represented people) are modest and do not extend to a requirement to be pleasant or cooperative. In some situations, the role of a lawyer requires a lawyer to engage in conduct which is, in the view of the other party, obstructive and unhelpful. The duty will also extend to third parties. Although the rules do not expressly state that lawyers must treat third parties with respect and courtesy, there will be circumstances where the conduct of a lawyer will be “unbecoming” or “unprofessional” and in breach of the general professionalism rule in r 10 (and unsatisfactory in terms of s12 of the Lawyers and Conveyancers Act 2006). One such instance involved a lawyer telling a support person of the

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CONTINUING YOUR PROFESSIONAL DEVELOPMENT

Learning by doing In every type of hearing – civil, criminal, family, environmental, employment and any other court or tribunal – dealing with expert evidence is an extremely important skill. Held recently, the NZLS CLE Ltd Expert Witness Programme concentrated entirely on working with expert witnesses and received large amounts of positive feedback. The programme was designed to introduce participating counsel to the skills involved in briefing expert witness. The 2012 Expert Witness Programme focused on accounting and valuation witnesses in the context of a share valuation case scenario. The case study used involved expert testimony on the valuation of a minority shareholder’s interest in a small/ medium sized business (a common issue of debate). The two featured valuers place a value on the minority shareholding using generally accepted methods of valuation, but they present themselves as diametrically opposed in their valuation of shares. opposing client in a family court matter that they were a “piece of s***”. The standards committee had no hesitation in finding that this was unsatisfactory (LawTalk 786, 2 December 2011, p18). See also JD v RU [2012] NZLCRO 27 (22 March 2012) for a finding of unsatisfactory conduct against a lawyer who approached a third party in a court waiting area in an intimidating manner. Similar findings of unsatisfactory conduct were made against a lawyer who raised matters with the registrar of the court in a disrespectful manner. The reason for a finding of unsatisfactory conduct was that the actions were “completely

The expert in professional liability and discipline LANE NEAVE LAWYERS CONTACT DUNCAN WEBB:

T 03 3793 720 M 021 244 3346 E duncan.webb@laneneave.co.nz

www.laneneave.co.nz

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LAWTALK 802 / 17 AUGUST 2012

Participants lead evidence and cross examine experts. This is recorded and then watched by themselves and a faculty member which provides an opportunity for one-on-one critique. They learn skills in briefing evidence, understanding evidence and then carry out evidence-in-chief and crossexamination exercises. The programme’s director, Terry Stapleton, says participants were learning by doing and made great progress. “One of the really rewarding things for faculty is to see participating counsel master the skills and the materials to the point where their assured and confident performances at the end of the programme are wholly different from their hesitant and tentative performances at the beginning.” The 2012 Expert Witness Programme is a shorter, more intense version of the entry level litigation programme which encompasses many different scenarios that participants look closely at over a week. It was extended one-and-half days to two full days in response to participant feedback. All experienced litigation lawyers are said to benefit from the programme as many of the techniques and issues involved apply to all expert evidence. LT

inappropriate and unprofessional, and that his disrespectful attitude towards the court staff undermined the integrity of the judicial process” (LawTalk 756, 16 August 2010, p9). One thread that may be seen to be emerging is that standards committees seem to have little tolerance for lawyers who act in a bullying manner whether to court staff, clients or third parties. On the other hand, lawyers who deal robustly with clients, other lawyers, or third parties in a manner which is not abusive will not generally be found to be in breach of the courtesy rule even though feelings are hurt or parties are intimidated. Sometimes this forms part of the role of a lawyer. There will, of course, be some conduct which will never be acceptable. The use of insulting, offensive and abusive language is unlikely to ever be appropriate. Similarly, conduct which is intimidating and intended to coerce a vulnerable party (such as a former client) is unlikely to be permitted. In the middle there is an area where lawyers must tread carefully. LT *Duncan Webb is internationally recognised as New Zealand’s leading expert in professional responsibility and liability. In fact, he wrote the book that is the key text in this area: Ethics, Professional Responsibility and the Lawyer, now in its second edition. A former law professor at Canterbury University and Legal Complaints Review Officer, Mr Webb is now a partner of Lane Neave in Christchurch.


Associate membership revoked An associate member of the New Zealand Law Society recently had his membership revoked because of concerns arising from possible breaches of the Lawyers and Conveyancers Act 2006 (LCA). Mr A is a foreign-qualified lawyer who held the status of associate member. A judge referred conduct concerns about Mr A to the Law Society. The Board considered whether to prosecute him for breaches of ss24 and 26 of the LCA.

Conduct of concern Mr A had appeared for another person (Mr B) in Family Court proceedings in which Hague Convention issues were raised. Mr A had filed documents as “Counsel for the Respondent” and had not initially advised the court that he did not hold a current New Zealand practising certificate. Once the court became aware Mr A did not have a practising certificate, he sought to rely on the exemption in s25 of the LCA. This section allows a foreign-qualified lawyer to carry out work within the “reserved areas” provided that it is essential in the particular situation that the provider of legal services has knowledge of the law of another country or international law. The court determined that in the particular case before it, it was not essential that the provider of legal services had knowledge of the law of another country or international law. It observed that Mr A’s involvement had, in fact, resulted in some delay in what were urgent proceedings. Concerns were also raised over Mr A’s decision to file affidavit evidence containing potentially contentious evidence in his own name while purporting to act as counsel. The court directed that Mr A cease acting. Mr A, however, continued to prepare documents for Mr B and applied to be appointed as a McKenzie Friend. The court expressed concern over Mr A’s continued involvement in proceedings, his apparent failure to understand the court’s earlier decision and his lack of knowledge of the limited parameters of the McKenzie Friend role. The court directed that the matter be referred to the Law Society to determine whether an investigation of Mr A’s conduct was required.

Decision to revoke associate membership

LCA provisions Section 24 of the LCA provides that it is an offence for a non-lawyer to carry out certain legal work within the reserved areas for lawyers (which are defined in s6). A non-lawyer is anyone who does not hold a current practising certificate (s6). The reserved areas include providing advice on the direction or management of any court or tribunal proceedings or appearing as an advocate representing another person before any New Zealand court or tribunal (with some limited exceptions). Under s26 of the LCA, it is an offence for a person to draft, revise or settle any documents to be filed in a court or tribunal for gain or reward unless the person is an “authorised person” (either a lawyer or someone working under the supervision of a lawyer).

The Board of the Law Society carefully considered whether Mr A’s conduct was of sufficient gravity to warrant prosecution. It noted that there was a strong case for prosecution. However, it determined that in this situation it would be more efficient to send a clear warning to Mr A that any repeat conduct would likely result in prosecution. It also decided to revoke Mr A’s associate membership immediately on the basis that he was not a fit and proper person to hold the status of associate member. Under its rules of associate membership, the Law Society has a discretion to revoke a person’s appointment as associate member at any time. The Board also directed anonymous publication of its decision. LT

NEED RESEARCH? The NZLS Library, legal research and document delivery service is fast, efficient and thorough. Use us as your legal research provider. For more information about our services: www.lawsociety.org.nz/home/for_lawyers/law_library/services

LIBRARY NEW ZEALAND LAW SOCIETY NZLS EST 1869

AUCKLAND: auckland@nzlslibrary.org.nz / 09 304 1020 WELLINGTON: wellington@nzlslibrary.org.nz / 04 473 6202 CANTERBURY: canterbury@nzlslibrary.org.nz / 03 377 1852

LAWTALK 802 / 17 AUGUST 2012

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Registry The following people have applied to the NZLS for certificates or approvals. Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Auckland Branch ABBA Faizal ABURN Bradley Thomas James AL-KHUDAIRI Mina ANDERTON Sarah Elizabeth ARMADASS Christine Nisha AU Eunice Yuen Yee BAIRD Charlotte Marion Falvey BAKKER Francesca Anneliese BALTHAZAR Michael Devi BAYLY Victoria Mildred BERTRAM Johari BIRD Lara Margaret Lillie BIRD Steven Charles BOND Alexander Andrew BOON Charles Michael BOYLE Kieran Thomas Joseph BREARS Isabel Sophy BUDDICOM Alexandra Elizabeth BULLING William Luke BUNN Charlette Anne Marie CAMPBELL Charlotte Frances CAYFORD Madeleine Rose Holmes CHAMBERS Carlos Edmond CHEUNG Karen Ka Yin CHO Jenny CLEARY Simon Robert John COLDICUTT Rebecca Helen COOPER Kylie Jane CUNDY Harry Richard DAVIDSON Rachel Ann DENNIS Sinead Paterson DOBBIE Jeremy Kean Mun DODGE Michael Jeffrey DUAN Amy Wenjun DUAN Ruonan EARL Katie Anna FARRER Katherine Isabella Caroline FILLION Amélie Lise FLETCHER Aroha Kahira Jasmine FOX Edward Isiah David GAVIGAN Timothy James Patrick GILBERT Benjamin Campbell GLEN Caroline Sarah GLOVER James Edward Arthur GODFREY James GOLDSMITH Rebecca Jane

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GRAY Stephanie Worsley GULLIVER Aimee Laura HAEMMERLE Corina Louise HALLIWELL Duncan John HARFORD Sherryn Elizabeth HELLABY Alexandra Mary HELM Catherine Elisabeth HICKMOTT Anna Louise HILL Matthew Stephen HINTON Campbell Peter HORNBROOK Oliver John HOWIE Finnigan James Douglas IRONS Stephanie Kelly JAIN Aparna JENNINGS Paul Richard JOHNSTON Brooke Karen JONES Jeremy Crawford JUDGE Rachael Elizabeth JURGELEIT Beth Ellen KARAMCHANDANI Eesha Sunil KEDZLIE Michael Liam KEMPKERS Emily Rose KIM Gloria So Yeon LAWSON-BRADSHAW Kathryn Hannah LODHIA Deemant Himmat LOTOASO Sianatu Sharon LYDIARD Kathryn Rebecca MANION Elizabeth Rebecca MATEHAERE Serah Maree MAXFIELD Susannah Louise MCKIBBIN Emily Rose MCKONE Sarah Lee MCLENNAN Renee Sally MCNEELY Liam John MILOSAVLJEVIC Andrijana MITCHELL Amanda Leigh MOORE George Donal Eisdell MORLEY Phoebe Louise MURPHY Beth Josephine NICHOLSON Victoria Kate NORCROSS Anna Lucy NORRIS Josephine Eva O’CONNOR Steven Bryan Choy O’FLAHERTY Thomas Joseph PARAT Yasmin Chanel PARRY Stephen John PASLEY Penelope Anne PAYNE Tony Ah-Thit

PEARSON James Robert PEAT Andrew John PURBASARI Anisa QUINLAN Harriet Louise RAUDKIVI Thomas Peter REDDY Ross Keith REYNGOUD Hayden John RIDDELL Jessica Alison ROBORGH Zoe Alexandra ROCHA Johann Arthur ROMANOV Mariya Lvovna ROPATI Benjamin RYAN Sarah Elizabeth RYU Hae Won SINCLAIR Alice Olivia Jane SINCLAIR Katherine Anne SMITH Eva Grace STEEL Alec John STEWART Jeremy Robert STUART Cameron Richard SUH Yoori Clara TAMES Michael Anthony Warren TAN Yu Sian THEELEN Rene Michael THOMPSON Rebekah Nadja Tollemache THOMSON Benjamin Jack TIDBURY Kate Emily TILLETT Deborah Jane VAIHU Roman Lemisio WALLACE Richard Iain WANG Tiyi WATSON Amy Louise WELSH Deborah Jean WELSH Samuel Alexander WONG Kimberley Nicole WONG Lena Tuane Ana

WONG Qiulae WRIGHT Iva WRIGHT Stephanie Jane ZHANG Ellen Danning Canterbury Westland Branch KHOO Choo-Nah Nelson Branch LUMMIS Bridget Ann Otago Branch JOHNSON Lucy-Kate Frances LAY Emily Nghi Chen TONKS Charlotte Eileen Waikato Bay of Plenty Branch AUJLA Tajneet BEAZLEY Kelly Christina CLEWS Laura DIBBLE Cara Jillian FOSTER Benjamin Matthew JORDAN David Adam ROBERSON Erika Lynn RON Benjamin (Benny) Josef STIRLING Duncan Takena Wellington Branch BILLING Christina Evelyn HAMLYN-CRAWSHAW Monica Rose KING Justine Mary KUHN Lucette MALLON Neil Kevin MOSSMAN Samuel Michael

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Canterbury Westland Branch CRAW, Christopher John

Wellington Branch SMITH Timothy Guy Hanmer

The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at http://www.lawsociety.org.nz/home/for_lawyers/registry/ applications_for_approval/ Comments concerning the suitability of any of the above-named applicants for the certificate or approval being sought should be made in writing to me by 23 August 2012. Any submissions should be given on the understanding that they may be disclosed to the candidate. Lisa Attrill, Registry Manager Email: lisa.attrill@lawsociety.org.nz, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989


OVERSEAS Lawyer’s letter praised Human rights breaches Australia’s treatment of for politeness suspected Indonesian people Lawyers sometimes land in the news for excessively antagonistic cease-and-desist letters dispatched to individuals who have little clue about intellectual property law.

smugglers who said that they were children has breached international human rights law Australian Human Rights Commission President Catherine Branson QC said on 27 July.

But a lawyer who defends trademarks for Jack Daniel’s whiskey is in the news for writing a cease-and-desist letter that is exceedingly polite, ABA Journal reports (26 July).

That treatment also raised “serious questions” about the resilience of Australia’s criminal justice system, she said.

American magazine The Atlantic printed a copy, under the heading This Cease-and-Desist Letter Should Be the Model for Every Cease-and-Desist Letter. It “may well go down as the most polite, encouraging and empathetic ceaseand-desist letter ever to be sent in the history of lawyers and humanity,” the magazine story said. The letter, by lawyer Christy Susman was sent to Patrick Wensink, author of the satire Broken Piano for President. The book cover features a design that bears a striking resemblance to the label for Jack Daniel’s Tennessee Whiskey. “We are certainly flattered by your affection for the brand,” the letter says, “but while we can appreciate the pop culture appeal of Jack Daniel’s, we also have to be diligent to ensure that the Jack Daniel’s trademarks are used correctly. Given the brand’s popularity, it will probably come as no surprise that we come across designs like this on a regular basis. What may not be so apparent, however, is that if we allow uses like this one, we run the very real risk that our trademark will be weakened. As a fan of the brand, I’m sure that is not something you intended or would want to see happen. “In order to resolve this matter, because you are both a Louisville ‘neighbor’ and a fan of the brand, we simply request that you change the cover design when the book is re-printed. If you would be willing to change the design sooner than that (including on the digital version), we would be willing to contribute a reasonable amount towards the costs of doing so.”

Ms Branson made the comments when releasing An Age of Uncertainty, the report of her inquiry into the treatment of suspected people smugglers who said that they were children. “The events outlined in this report reveal that, between 2008 and 2011, each of the Australian Federal Police, the Office of the Commonwealth Director of Public Prosecutions and the Attorney-General’s Department engaged in acts and practices that led to contraventions of fundamental rights; not just rights recognised under international human rights law but in some cases rights also recognised at common law, such as the right to a fair trial,” Ms Branson said. The authorities involved, she said, failed seriously to question practices and procedures that led to young Indonesians who are now known to have been children or to have been highly likely to have been children, being held in detention in Australia for long periods of time, in many cases in adult correctional facilities. Ms Branson said she hoped that her inquiry would also lead to “mature” reflection on the strengths and weaknesses of the criminal justice

system more generally. “The inquiry has revealed that this system may be insufficiently robust to ensure that the human rights of everyone suspected of a criminal offence are respected and protected,” she said. The report is available online at www.humanrights.gov.au/ ageassessment/report/.

Ban on baby barristers may be relaxed English and Welsh barristers with under three years’ practising experience will be able to take instructions directly from clients if the Bar Standards Board’s (BSB) latest plan for the extension of public access rules is approved, reports The Gazette (26 July). The board heard in July that “baby barristers” may be the only representation some clients can afford. Proposals the board finalised would allow more lay clients to use barristers without going through a solicitor by removing bans on barristers accepting work where the client may be eligible for legal aid, and on allowing barristers with less than three years’ practising experience from accepting public access instructions. The Law Society of England and Wales has previously opposed removing the current three-year limit. Responding to a consultation in March, the society said: “Dealing directly with clients requires a level of maturity and expertise which the majority of entrants to the profession cannot be expected to possess”. LT

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LAWTALK 802 / 17 AUGUST 2012

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BRANCH NEWS SOUTHLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869

Southland/Otago Conference and Bar Dinner Southern lawyers enjoyed a chance to network, learn and celebrate with the Law Society’s combined Southland and Otago branch conference in Invercargill on 28 July. The conference was followed by a Southland Bar Dinner. There have been four combined conferences in the south in the past five years, and this year was the first with Invercargill as the venue. Over 100 Law Society members registered, with 29 of these making the trip from Otago branch. After an opening by Otago University Law Dean Professor Mark Henaghan, the keynote address was given by Law Society Vice-President and former Canterbury-Westland branch President Allister Davis. His theme was “Shake Rattle and Roll”: Living through the Christchurch Earthquake.

The Southland/Otago branch conference in Invercargill featured 10 sessions which took a practical approach to a wide range of issues encountered by local practitioners. The Invercargill sun illuminates an absorbed audience of lawyers.

The conference sessions ranged from a look at the complaints and disciplinary processes and how to respond, to negotiation and mediation and building professional credibility through public relations. Closing remarks were delivered by Law Society President Jonathan Temm. The conference was followed by an equally successful Bar Dinner, attended by 131. Justice French, who had just been appointed to the Court of Appeal, was present, as were Judges Flatley, Phillips, Russell and Turner. Law Society representatives included President Jonathan Temm, VicePresidents Nerissa Barber and Chris Moore, Executive Director Christine Grice and most members of the Southland and Otago branch Councils. Professor Mark Henaghan of Otago University delivered the address. Ready for action. The table settings await 131 members of the judiciary and legal profession for the Southland Bar Dinner.

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BR ANCH NEWS

AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869

Kensington Swan team wins Members’ Quiz Night The Auckland branch 2012 Annual Members’ Quiz on 1 August brought together eight teams at Kensington Swan’s premises. To acknowledge the great events taking place in London, this year’s quiz had an Olympic theme. Perhaps it was home ground advantage, but the Kensington Swan team (also known as Team GB) took the title after a gruelling battle which included returning teams from Meredith Connell and Southern Cross Chambers. Quizmaster Jono once again ran the evening, with spot prizes between rounds to keep everyone on their toes.

AYL seminar well attended The sixth seminar in the Auckland Young Lawyers Winter Seminar series had the theme “Law: A Profession or a Business?”. Over 70 AYL members attended Graeme Hall the event, which was held at lunchtime on 27 July at Buddle Findlay’s offices. Buddle Findlay partner Graeme Hall and senior associate Anita Birkinshaw looked at where law has gone as a profession and how it has become more “business-like” today. Their conclusion was that the law has become both more a business and a profession as lawyers and firms, large and small, embrace new structures and practices to provide a better service for their clients in the 21st century.

Skin: The Secrets and Science With over 120 female lawyers all set for a night of shopping, education and networking, how could “Skin: The Secrets and Science” at The Department Store in Takapuna be anything but brilliant! From 7:30 to 9pm on a night in mid-July, the women were free to browse the entire store while enjoying wine by Black Estate and nibbles courtesy of Sabato. As well as exclusive discounts, The Department Store hosted a seminar on skin science and provided guests with goody bags

The victorious team from Kensington Swan, 2012 Auckland branch Members’ Quiz champions. From left: David Campbell, Gary Spalding, Mark Broad, Nick Scott, Stephanie Braddock, James Cowan, Natalie Amos and Alex Welsh.

full of great products and discounts for hair, beauty and lifestyle. The evening gave female branch members a chance to connect and be entertained in a fun setting.

CANTERBURY WESTLAND

NEW ZEALAND LAW SOCIETY

NZLS EST 1869

says the tour was organised for a group of lawyers who had recently moved to Hawke’s Bay from the south, and was a fantastic way for everyone to get acquainted. The group was started in 2011 following an influx of young lawyers and a number of drink and nibble sessions have been held at local firms and the community law centre. It aims to provide a place for upcoming lawyers to socialise and to foster confidence and collegiality.

2012 Law Dinner for Sir Andrew Tipping The Canterbury-Westland branch of the Law Society is holding a 2012 Law Dinner to mark the retirement of Sir Andrew Tipping from the Supreme Court. The dinner will be at the Westpac Hub, 55 Jack Hinton Drive, on 24 August. Registration is $140 per person and is required by 20 August. Sir William Young will introduce the evening.

HAWKE’S BAY NEW ZEALAND LAW SOCIETY NZLS EST 1869

Young Practitioners Group flourishes The Hawke’s Bay Young Lawyers Group last month held a successful wine tour to welcome young and new lawyers to the area. Rebekah Fairweather of the Hawke’s Bay Community Law Centre

WAIKATO BAY OF PLENTY NEW ZEALAND LAW SOCIETY

NZLS EST 1869

Young lawyers hold quiz night The Waikato Bay of Plenty Young Lawyers Association Quiz Night last month produced some very interesting answers and a lot of laughter. The fiveperson “Team Three” was the winner, comprising Shannon Bennett, Dushan Delic, Ryan Smith, Jess Gilby-Todd and Maria Ware. The evening was greatly assisted by sponsorship from McCaw Lewis and prize donators Westpac, Harkness Henry, Niemand Peebles Hoult, Lido Cinemas, Rodeo Rodeo and House. LT

LAWTALK 802 / 17 AUGUST 2012

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UPCOMING PROGRAMMES Programme

Presenters

Content

Where

When

Introduction to High Court Civil Litigation Skills

Sandra Grant John Hardie Judge Rod Joyce QC Nikki Pender Paul Radich Tom Weston QC

Junior practitioners should not miss this opportunity to develop practical litigation Wellington skills in an intensive, small-group workshop which will take you through a summary Auckland judgement claim in the High Court to demonstrate how to handle a file from beginning Christchurch to end, how to draft pleadings, evidence and submissions, how to present an argument – and much more. Skills taught in this two-day workshop are transferrable to the District Court and other High Court cases.

CIVIL 29-30 Oct 12-13 Nov 19-20 Nov

COMMERICAL/COMPANY Tax Conference

Chair: Mathew McKay

The annual NZLS CLE Tax Conference is an important event for all those working in Auckland this ever-changing and demanding area of the law. You can look forward to first class presentations around the latest developments in case law and black letter law. The day provides a great opportunity for NZ’s relatively small number of tax practitioners to come together and share ideas and experiences.

5 Sep

CRIMINAL Duty Solicitor Training Programme Duty solicitors are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. You will: • complete pre-course reading on the key tasks of a duty solicitor • learn about penalties, tariffs and sentencing options • observe experienced duty solicitors (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty solicitor at a practice court • be observed and assessed while appearing as a duty solicitor (a full day)

Dunedin Invercargill Wellington Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei

Intro

Asssessment

Practice Court

13 Jul 13 Jul 3 Aug 3 Aug 3 Aug 3 Aug 3 Aug 21 Sep 21 Sep

31 Aug 31 Aug (in Dun) 14 Sep 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 26 Oct 26 Oct (in Man)

1 Sep 1 Sep (in Dun) 15 Sep 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 27 Oct 27 Oct (in Man)

EMPLOYMENT Employment Law Conference – Good Faith

Chair: Peter Chemis

This “must-go” conference, noted as much for its enthusiastic collegiality as for the Auckland high quality of the business sessions, will once again provide practitioners at all levels of experience an unmissable opportunity for two days of stimulating engagement on topics of essential importance and interest in the employment law field.

8-9 Nov

FAMILY Care and Protection Dr Nicola Atwool Orders and CYFS Tracey Gunn

Understanding Mediation – mediation for lawyers Part A

Care and protection cases can be problematical and lawyers need a good understanding of how the statute works and how it interlinks with the moving goalposts of CYFS’ policy. Lawyers need to understand the reality of issues for children in care and what happens when CYFS intervenes and why they intervene. This seminar will provide you with practical hands-on advice for dealing with care and protection cases.

Dunedin Christchurch Wellington Auckland Webinar

See listing in General section on the next page.

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

17 Oct 18 Oct 25 Oct 26 Oct 25 Oct


Online registration and payment can be made at www.lawyerseducation.co.nz

Programme

Presenters

Content

Where

When

Dunedin Christchurch Wellington Auckland

1 Oct 2 Oct 8 Oct 9 Oct

GENERAL Statutory Interpretation – a 2012 guide

Ross Carter Jason McHerron

Last covered in 2008, this seminar will take a fresh look at this topic, which is central to all law practice. Presenters Ross Carter and Jason McHerron will use recent case law to illustrate and analyse key principles and developments in statutory interpretation using text, purpose, context, and values.

Webinar

8 Oct

Logic for Lawyers

Prof Douglas Lind Most lawyers’ logical intuitions are strong enough to permit smooth navigation most Wellington Webinar of the time through webs of complex legal arguments without error. Still, unfamiliarity Auckland with logic and argument form limits a lawyer’s analytical oversight. This makes him or her vulnerable to committing or overlooking mistakes of reasoning that can affect the outcome of cases. Attend this workshop to learn a practical framework and gain specific analytical tools for working with legal arguments.

Stepping Up Foundation for practising on own account

Director: John Mackintosh

The new national Stepping Up course replaces the various local Flying Start courses. Auckland All lawyers wishing to practise on their own account whether alone, in partnership, Wellington in an incorporated practice or as a barrister, will be required to complete the course. Developed with the support of the New Zealand Law Foundation. From 1 August 2012 (date subject to ministerial approval) Stepping Up will be a compulsory prerequisite for lawyers applying to be barristers sole.

6-8 Sep 8-10 Nov

Trust Account Supervisor Training Programme

Mark Anderson, John Hicks or David Littlefair, and David Chapman, Bob Eades or Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, Wellington attend the assessment day and pass all assessments. Make sure you register Auckland in time to do the preparatory work before the assessment day as listed on Christchurch the right.

12 Sep 14 Nov 21 Nov

Writing Persuasive Opinions

Judge John Adams Simon Cunliffe Margot Schwass

Successful opinions are persuasive. Persuasive opinions are clear, succinct, Wellington jargon-free, cogently structured, legally acute and tailored to the needs of Auckland your reader/client. Comprising a mix of presentations and small-group work, this workshop will demystify the practice of writing complex legal opinions. It will provide the chance to practise and receive feedback on your writing from experienced tutors in a supportive, creative and enjoyable setting. Note: places are limited so book early to avoid disappointment.

26 Sep 28 Sep

Consultation Requirements

Lisa Hansen

Consultation is usually required by common law to ensure a decision is procedurally Your computer 27 Sep fair. It may now be seen to be a stand-alone principle of law. Consultation enables decision makers to base their decisions on up to date information and to ensure that Webinar Webinar implications are understood. All practitioners who act for, or make submissions to, decision makers at all levels should attend to gain a better understanding of how you can more effectively use the consultation process.

23 Oct 25 Oct

Lawyer as Negotiator Jane Chart

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

30-31 Oct 7-8 Nov

Virginia Goldblatt Understanding Geoff Sharp Mediation – mediation for lawyers Part A

Mediation knowledge and skills are an increasingly important adjunct to legal Wellington practice. Many more clients are taking disputes to mediation (because it works) and the more that their legal advisers know about how it works the better. In addition practice as a mediator extends the service that lawyers can offer the public.

16-18 Nov

Reading Accounts and Balance Sheets

While it is not necessary for you to have the financial insight that might be expected of an accountant, you should know how financial statements are put together and know how to ask the right questions and identify warning signs, discuss financial statements intelligently with a client, and know when to call in specialist assistance. This workshop will enable you to unlock the mysteries of financial documents.

Lloyd Austin

Auckland Hamilton Wellington Christchurch

13-14 Nov 19-20 Nov 26-27 Nov 28-29 Nov

Programme brochures, online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz


LAWYERS COMPLAINTS SERVICE Suspension after acting for both buyer and seller Auckland lawyer William Korver was suspended for six months by the Lawyers and Conveyancers Disciplinary Tribunal after acting for both sides in a property sale, with severe consequences for the seller. Mr Korver admitted two charges of negligence or incompetence of such a degree as to reflect on his fitness to practise. The first related to the conflict of interest, the second to his handling of the seller’s funds.

Conflict of interest Mr Korver had been instructed by Ms A, who was a relative of the seller, to act for Ms A as the buyer of the seller’s home. Some time later Ms A also asked Mr Korver to act for the seller. He agreed to do so, despite being told by the seller’s former lawyers that they believed the sale wasn’t in her best interests. The price was $640,000. A cash amount of $208,000 was payable to the seller on settlement, while the balance of $432,000 was secured only by an acknowledgement of debt. Ms A nominated a trust to be the actual buyer. She told the seller that the trust would allow her to continue to live in her home after settlement. The trust borrowed $466,000 from an institutional lender, giving the lender first mortgage security over the sale property for that advance. As well as acting for Ms A and the seller, Mr Korver also acted for the lender and the trustees of the buyer trust. The first charge against Mr Korver was that he breached the rules governing conflicts of interest and independence in the then applicable Rules of Professional Conduct (Rule 1.04, acting for more than one party without prior informed consent; Rule 1.07, failing to decline to act and to take other required steps). Mr Korver admitted he had not properly advised the seller about the

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complete nature of the transaction and the conflicts between her interests and those of the other parties, particularly Ms A. He had not adequately explained to her the risks she faced, especially the lack of security for her loan and the risk of eviction if the buyer defaulted on its mortgage payments. Mr Korver acknowledged he should have advised the seller to get independent advice and should have declined to act for her. Although he had got her to sign an acknowledgement of conflict of interest, he had not properly advised her about its terms and effect.

Breach of trust account duties The second charge related to a payment of $60,000 the seller had made into Mr Korver’s trust account, with Ms A’s assistance, after settlement of the sale. Mr Korver had treated the amount as an advance to another client associated with Ms A, without informing the seller of this or getting her authority. Mr Korver admitted he had breached his statutory duties to properly account to the seller for this money and to obtain her authority before making any payments out of trust money held for her (Lawyers and Conveyancers Act 2006, s111(1); Lawyers and Conveyancers Act (Trust Account) Regulations 2008, regs 12(6) (b) and (7)).

Penalty The tribunal said Mr Korver’s negligence had been gross and his failure to comply with basic professional obligations had been reckless. It noted that Ms A had run all aspects of the transaction and also attended any meetings Mr Korver had with the seller. It said it was a concern that a lawyer of his considerable experience “could be so negligent, and so disconnected from the reality of the transactions he was undertaking, as

not to recognise the conflict issues….” The tribunal said that by ignoring the obligatory procedures for conflicts of interest, Mr Korver had placed the seller in precisely the kind of situation those procedures were designed to protect against. He had also ignored his obligation to get her authority before advancing funds held in trust for her. In Mr Korver’s favour, the tribunal noted that this was not a case of dishonesty and that he had acknowledged his wrongdoing and was remorseful. He had apologised to the seller and also accepted liability for a large part of her financial loss. The tribunal said the main issue in deciding on penalty was Mr Korver’s conduct, rather than the consequences for the seller. It said his failures had been extremely serious, and it rejected his argument that a suspension would be disproportionately harsh. It suspended him for six months and censured him. It said it could never be an objection to a suspension order that the lawyer might afterwards be unable to re-establish his or her practice, as this was subordinate to the public interest (citing Bolton v Law Society [1994] 2 All ER 486 at 492). As a further penalty for the trust account breach, the tribunal ordered that if Mr Korver returned to practice he would have to take advice on his professional obligations from another lawyer as a mentor and supervisor for 18 months, and report to the Law Society in writing every three months during that period. Mr Korver accepted responsibility to pay the costs of the Lawyers Standards Committee that brought the charges, which amounted to $29,575, and to reimburse the Law Society $11,600 for its payment of the tribunal’s own costs. LT


L AW YERS COMPL AINTS SERVICE

Breach of undertaking: jurisdiction of standards committees The Legal Complaints Review Officer (LCRO) has clarified that a breach of an undertaking by a lawyer does not automatically lead to misconduct charges being laid with the Lawyers and Conveyancers Disciplinary Tribunal. When an undertaking has been breached, a Lawyers Standards Committee may make a finding of “unsatisfactory conduct”. The LCRO was reviewing a standards committee’s decision to lay misconduct charges for a breach of an undertaking, a decision the committee had made under a misapprehension that it had no jurisdiction to make a lesser finding of unsatisfactory conduct. The LCRO ruled that the committee did have that jurisdiction, and referred the case back to it for reconsideration.

The facts and the complaint The complainant couple had water rights under an easement over their neighbours’ property. In 2002, when the neighbours subdivided their property and entered into agreements to sell the lots, the two couples agreed that the complainants would surrender their existing easement in return for the neighbour granting them a new water supply easement over land that they were retaining. However, work had to be completed on the neighbours’ property before the new easement plan could be prepared. The lawyer acting for the neighbours (A) therefore wrote to the complainants’ lawyer (B) in August 2002 asking for the easement to be surrendered in return for his undertaking that the new easement would be registered as soon as the plan was available. In February 2003, A again wrote to B, enclosing an easement instrument for them to execute. He also wrote to a third lawyer who had lodged a caveat against the property, asking him to remove it so the easement could be registered. Neither B nor the caveator’s lawyer responded. After that, the matter was overlooked by the lawyers for the two couples.

It wasn’t until 2010, when the complainants wanted to carry out a subdivision themselves, that anyone realised the easement hadn’t been registered. The two couples and their lawyers all cooperated to execute the necessary documents. However, a dispute over the complainants’ legal costs led to their decision to lodge a complaint against A.

The committee’s decision The standards committee directed the parties to mediate and the disputed amount was eventually paid. However, the committee considered itself bound to lay misconduct charges with the Lawyers and Conveyancers Disciplinary Tribunal because A had breached his undertaking to register the easement. The standards committee would have preferred to make a finding of unsatisfactory conduct, but it considered itself bound to prosecute by recent decisions of the High Court and LCRO emphasising the seriousness of any breach of an undertaking. (Only the disciplinary tribunal may make a finding of misconduct against a lawyer.) A applied to the LCRO, challenging the committee’s view that it had no jurisdiction to find that a breach of an undertaking fell short of misconduct.

The LCRO’s decision The LCRO found that there was nothing in the Lawyers and Conveyancers Act 2006 (LCA) or the Conduct and Client Care Rules to prevent the committee finding unsatisfactory conduct in a breach of undertaking case. He also said that while the leading High Court decision had reiterated the importance of undertakings, the judge had not stated that a breach of one must automatically result in misconduct charges (see Auckland Standards Committee 3 of New Zealand Law Society v W, HC Auckland CIV-2101-404005509,11 July 2011). “It would even be incorrect to postulate that there is a presumption that a breach of

an undertaking will lead to a charge before the tribunal,” the LCRO added. The LCRO noted that in earlier decisions of his own he had said only that a standards committee faced with a breach must consider whether or not to lay charges. This did not mean that every breach must result in charges being laid. He also noted several LCRO decisions that had confirmed findings of unsatisfactory conduct by standards committees where undertakings had been breached. The LCRO reversed the present decision to lay charges and referred the matter back to the committee. He noted that his office has taken a cautious approach to interfering with a standards committee’s discretion to prosecute, but he said this current case was unusual because of the committee’s misapprehension about its jurisdiction. In any event, he said, he was not interfering in a final way with its decision to prosecute, but was instead directing the committee to reconsider the matter in the light of his comments. The LCRO said the committee had a significant range of powers and penalties that may be appropriate in the case of a breach of an undertaking. It must exercise its discretion as to the seriousness of the breach and whether it could be considered to be misconduct as defined in s7 of the LCA. If it concluded that the breach could be misconduct, it must refer the case to the tribunal, being careful not to conclude that the conduct does, in fact, constitute misconduct, for that is a finding only the tribunal can make. LT

Second complaint of delay results in fine A lawyer, Z, administering an estate has been fined by a Lawyers Standards Committee after it upheld a complaint of delay against her. The committee had earlier decided to take no action on a similar complaint from the same complainant about the same matter, after Z had given a written assurance that she would deal promptly

LAWTALK 802 / 17 AUGUST 2012

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L AW YERS COMPL AINTS SERVICE with all correspondence from the complainant.

The complaint The complainant was a lawyer acting for a beneficiary of the estate. In an earlier complaint, decided in October 2010, he had claimed that Z had failed to respond to his correspondence, resulting in undue delay. Z had apologised to him and said she should have written him an interim letter explaining her difficulties in contacting a son of the deceased, who was overseas. She gave the complainant a written assurance she would respond to all his future correspondence promptly and courteously. In light of her response, the standards committee had been satisfied there would be no repetition and it decided it did not need to take any further action. In the second complaint, made in May 2011, the same complainant claimed that Z had failed to respond to his communications from November 2010 until February 2011, again causing undue delay and unnecessary costs. The complainant pointed out this was just one month after Z had given a written assurance. He also claimed a recent invoice from Z had been excessive, as it charged for items that were not, in fact, estate expenses. Z did not accept that there had been inordinate delays. She claimed there had been reasons for the delay that were largely outside her control.

The decision The standards committee said that this second period of delay and lack of communication, lasting nearly three months, would be unacceptable in the normal course of events but in this case was exacerbated by Z’s earlier written assurance. Even taking into account the Christmas/New Year break, the length of the delay was unreasonable, the committee said. The committee found that Z had breached her duty to promote and maintain proper standards of professionalism (Conduct and Client Care Rules, Rule 10). It found her guilty of unsatisfactory conduct and fined her $1,000. It also ordered her to pay $500 costs to the Law Society. The committee decided to take no further action on the issue of overcharging, as that would be dealt with by the High Court in connection with a dispute about the distribution of the estate. LT

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LAWTALK 802 / 17 AUGUST 2012

Strike off for misappropriating client funds Auckland lawyer Junior Witehira has been struck off the roll of lawyers by the Lawyers and Conveyancers Disciplinary Tribunal after misappropriating more than $23,000 from client trust money.

Misconduct admitted Mr Witehira admitted a charge of misconduct arising from two unauthorised transfers of client funds. On 24 September 2010 he had taken $22,917 from his trust account, paying the money by cheque into one of his firm’s business accounts. Around two weeks later he took a further $810, again lodging the money into the business account. On the butts of the two cheques he gave false details for the payee names and the purposes of the payments. Mr Witehira had repaid the amounts later in October 2010. He told the tribunal the misconduct had been just one isolated act, involving a spur-ofthe-moment decision with no preplanning. He had panicked, he said, when payment of his bank became due. He had been having some personal difficulties as well as business cash flow problems, and he said the misconduct had been out of character for him. He also claimed there had not been any systematic or sophisticated plan to cover up the offending. As mitigating factors, Mr Witehira also put forward the fact that he had readily admitted his offending, had repaid the money, and had accepted the need for rehabilitation.

‘Isolated act’ explanation rejected The tribunal rejected the claim that there had not been any sustained, persistent inappropriate conduct. It found there had been a continuing course of conduct, involving the deliberate and planned taking and using of client funds over a period of time. After the first transfer, Mr Witehira had drawn on the money several times to pay off his overdraft and meet other costs of his practice. The tribunal said, however, that even if it accepted there had been a spur-ofthe-moment decision, this would have been unlikely to affect its decision on

penalty, given the serious nature of the misconduct. The tribunal also did not accept that Mr Witehira hadn’t sought to disguise his misconduct and that he always knew it would come to light. On the contrary, the tribunal found it was highly likely he had intended that the transfers wouldn’t be discovered. It noted that the details he had entered on the cheque butts had been deliberately misleading, and the discovery of the misappropriations had, in fact, been fortuitous.

Striking-off necessary Mr Witehira argued that a penalty short of suspension would be sufficient, but the tribunal found that the serious dishonesty shown in this case required him to be struck off. It said the personal difficulties he had cited could not explain, let alone justify, his serious misconduct. Striking him off was necessary to protect the public and the reputation of the legal profession, and was not a punitive response (following Bolton v Law Society [1994] 2 All ER 486). The tribunal had also considered two previous adverse findings against Mr Witehira, although these were not decisive in its penalty decision. In 2007 he had been found guilty of misconduct for failing to honour an undertaking. Later, in April 2011, he had been found guilty of unsatisfactory conduct after failing to repay $7,000 that had been transferred, apparently through a bank error, from his trust account to his general account some five years earlier. The tribunal said this had indicated “an unacceptable attitude to such matters” on Mr Witehira’s part. On the issue of costs, the tribunal said there was “no hard and fast rule”, citing Daniels v Complaints Committee 2 of the Wellington District Law Society (High Court, CIV-2011-485-000227, 8 August 2011). Taking into account Mr Witehira’s financial position it ordered him to pay the Law Society $5,000 towards its costs of $7,435. It also ordered him to pay half of the tribunal’s own costs, half being $2,500. LT


WILLS GLADYS COLLEEN ELIZABETH HARDINGE (NEE MITCHELL)

Would any lawyer holding a will for the above-named, late of Papakura, who died on 24 July 2012, born 7 February 1925, please contact Christine Williams, 5 Dalkeith Place, Papakura 2113, ph 09 298 5045 or 027 211 2924, email boaties@xtra.co.nz.

PATRICK THOMAS PUDNEY

Would any lawyer holding a will for the above-named, late of 12A Brixton Road, Little Manly, Whangaraparaoa, who died on 19 July 2012, please contact Christine Taylor, Taylor Grant Tesiram, ph 09 920 8667, email christine. taylor@tgtlegal.com.

BRIAN LEONARD MOLE

Would any lawyer holding a will for the above-named, late of 53 Sunnybrae Road, Hillcrest, Auckland, who died on 1 July 2012, please contact Fortune Manning Lawyers, PO Box 4139, Auckland 1140, ph 09 915 2406, fax 09 915 2402, email klm@fmlaw.co.nz.

ERIC BERNARD HANSON

Would any lawyer holding a will for the above-named, late of Feilding, aged 79, retired, who died on 2 July 2012, please contact Greg Hanson, PO Box 141, Moffat Beach, Queensland 4551, Australia, ph +61 7 54918837, fax +61 7 53351694, or email hansoncontact@ gmail.com.

TUBBY TIPA BELL

Would any lawyer holding a will for the above-named, also known as Michael Bell, late of 1 Kiwi Street, Te Kuiti, aged 62 years, who died on 27 June 2012, please contact Sam Laubscher of Lamb Bain Laubscher, PO Box 412, Te Kuiti 3910, DX GA30006, ph 07 878 1011, fax 07 878 6082 or email sam@lbllaw.co.nz.

CHRISTOPHER JOHN HOCKING

Would any lawyer holding a will for the above-named, late of Palmerston North, formerly of Nelson, IT Guru, who died on 17 May 2012 at Palmerston North, please contact Glenys Brown, Opie & Dron, PO Box 315, Palmerston North 4440, ph 06 358 7970, fax 06 356 9421, email opieanddron@xtra.co.nz.

SITUATION VACANT

WAIRETI ATE MANGAI GREGORY Would any lawyer holding a will for the above-named, late of Analiese Haven Rest Home, 25 Adderley Terrace, Kaiapoi, homemaker, who died at Kaiapoi on 23 December 2008, aged 78, please contact David Brett of David L. R. Brett, Barrister & Solicitor, PO Box 5224, Dunedin 9058, ph 03 477 2533, fax 03 474 1559, or email dblaw@ ihug.co.nz.

JAMES HIMI KAIWAHIA MORRIS

Would any lawyer holding a will for the above-named, also known as Jimmie Morris, late of Tolaga Bay, retired driver, who died on or about 12 November 2004, please contact Siobhan Simpson, ARL Lawyers, PO Box 30-430, Lower Hutt 5040, ph 04 566 6777, fax 04 569 3354, email siobhan. simpson@arl-lawyers.co.nz.

HOKIMATE MERE MORRIS

Would any lawyer holding a will for the above-named, also known as Hoki Pou-Te-Rata or Mary Morris, late of Tolaga Bay, homemaker, who died on or about 18 July 1998, please contact Siobhan Simpson, ARL Lawyers, PO Box 30-430, Lower Hutt 5040, ph 04 566 6777, fax 04 569 3354, email siobhan. simpson@arl-lawyers.co.nz. Fearon & Co 56x100 ad_BW.qxd:Layout 1

LEGAL SERVICES

Junior Criminal Lawyer Public Defence Service, Waitakere The Public Defence Service represents legally aided clients in a full range of criminal cases and has a commitment to providing independent high quality and timely legal advice, including providing professional leadership of the duty lawyer service. The Public Defence Service office in Waitakere has an opportunity for a junior lawyer to join an enthusiastic team, committed to providing high quality, timely legal advice and representation. The Waitakere office services the District Court within the Northern region. There are also opportunities for High Court appearances and to be involved in trial work alongside senior lawyers. In this role, you will be able to advance your legal career in a busy, challenging and supportive environment. Our commitment to training and development includes ongoing mentoring, training, interesting work, a strong collegial environment, and a competitive salary. Reporting to the Deputy Public Defender, Waitakere, you will have completed duty solicitor training and have a Category 1 listing approval or have the ability to gain this in the short-term. It would be desirable for the successful candidate to have a duty Lawyer listing. This is not a graduate position, and would be suited to someone with at least 12 months post-admission experience in criminal law or litigation. To apply, please visit our website http://careers.justice.govt.nz and view the vacancy in the Current Opportunities page. Applications close Friday, 31 August 2012.

ENGLISH LAW AGENCY SERVICES SOLICITORS Established 1825

Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations

VISIT OUR WEBSITE www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 00 44 (0)1483 540840 Fax: 00 44 (0)1483 540844 General Email: enquiries@fearonlaw.com

LITIGATION

Martin Williams 00 44 (0)1483 540843

mw@fearonlaw.com

PROPERTY John Phillips

00 44 (0)1483 540841

ajp@fearonlaw.com

PROBATE

Francesca Nash 00 44 (0)1483 540842

fn@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

LAWTALK 802 / 17 AUGUST 2012

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21/


SITUATIONS VACANT

TO LET

SENIOR SOLICITOR

– PRACTICE APPROVAL - RESEARCH AND LEGAL SUPPORT (NEW POSITION) • Regulatory role • Offers variety The New Zealand Law Society is the regulatory body for all lawyers. It has a vacancy for the newly created position of Senior Solicitor – Practice Approval - Research and Legal Support. The role offers variety. It includes providing research and other legal support to the Practice Approval Committee and for Senior In-house Counsel. The role also supports competence and ongoing legal education programmes as well as dealing with the Law Society’s requirements for overseas lawyers to practise in New Zealand and the provision of legal advice generally. Ideal applicants will have: • At least 5 years’ post admission experience • Well developed research and analytical skills • An empathy with the legal profession and consumers of the legal profession • Good judgement and diplomacy.

SITUATION VACANT GENERAL PROPERTY PRACTITIONER WANTED Paxton-Penman et al

A detailed position description is available. Applications close 23 August. To apply, please visit www.momentum.co.nz and enter reference number 30940 on the home page. Or email your CV and covering letter to wellingtonjobs@momentum.co.nz quoting the reference number. For further information in strict confidence, please contact Carla Wellington or Marissa Barnao on (04) 499 6161. 191 Queen Street Auckland P +64 9 306 5500

40 Mercer Street Wellington P +64 4 499 6161

M O M E N T U M .C O. N Z

We are looking for a talented general property practitioner with approx 4+ years’ post qualification experience to join us. www.facebook.com /mylawsociety

We are a unique firm specialising in property and commercial matters with offices in Auckland and Warkworth. If you are passionate about the law, have a great sense of humour and are committed to excellence then please forward your CV and cover letter in confidence to constance@ppetal. co.nz.

A Mighty OppOrtunity… in-hOuse COunsel Mighty River Power is an integrated energy company with a diverse range of generation assets and a sizeable retail business. We are looking for an experienced, self-motivated and outgoing lawyer to join our talented and close-knit team. You will take a key role in projects involving generation development, infrastructure construction and maintenance, market trading, retail sales and marketing, regulation and corporate governance. The breadth and depth of work you will be involved in is enviable. As well as being able to provide practical and timely legal advice, you will be required to manage the procurement and delivery of specialised advice through external counsel. You will need at least five years PQE in corporate, commercial and/or construction law. Previous experience in energy and/or infrastructure-related industries will certainly be an advantage. You will have excellent communication skills and be able to work autonomously, translate legal risk into business terms, and build good working relationships with internal and external stakeholders. Your technical skills will be a given; your management mindset and agility will be your advantage. In return, you will be working for an award winning energy company committed to sustainable development in New Zealand and offshore, and a leading world player in cutting edge geothermal generation projects.

Mighty River Power is a successful New Zealand electricity company, with a growing international geothermal business. We have a flexible portfolio of electricity generation assets, a strong national retail presence and a focus on domestic generation and international geothermal development opportunities. More than 90% of our generation is from renewable sources. We supply both electricity and thermal energy to major commercial users and have more than 400,000 retail customers in New Zealand with our brands, Mercury Energy, BOSCO Connect and Tiny Mighty Power.

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SITUATIONS VACANT

SENIOR SOLICITOR – COMMERCIAL TEAM LEADER

Graduate/Junior Lawyer

Our client is an innovative, friendly, client-focused commercial law firm based on Auckland’s North Shore. The firm specialises in general commercial, franchising and trust law. They pride themselves on working collaboratively with their clients to provide sound commercial solutions and the best possible outcomes.

This small expert team is seeking a Graduate who has ideally completed their professionals, although this is not essential. Junior Solicitors with up to one year’s PQE will also be considered. You will have a strong academic transcript and a good work ethic.

The firm is sadly farewelling one of their highly respected Partners who is leaving the practice to pursue a career outside of the legal industry. As a result, an exceptional opportunity has arisen for a Senior Associate with 7–10 years’ post qualification experience specialising in commercial law. The role will best suit a senior lawyer who is very ready to take on the challenge to grow this area of the business whilst developing your career along the way, with advancement potential in the future.

The successful applicant will undertake enforcement activities that include preparing responses to complaints received, preparing reports for the Panel, attending to minutes at meetings as well as processing applications for exemption or approval requiring you to analyse and consider the application and correspond and negotiate with the applicant concerned. You will also undertake research, write papers for law reform projects, handle public enquiries and attend to administrative duties such as time recording. You will be enthusiastic and thrive on using your own initiative. In return you will be offered first class mentoring and supervision, regular training and the opportunity to interact with the CEO and General Counsel on a daily basis. This is an opportunity you don’t want to miss, join this high profile team making today’s headlines and receive excellent career development.

This successful team has been involved with commercial matters ranging from general commercial/residential property through to apartment developments, stadium developments, joint venture arrangements, banking security, leasing and business park developments, company structuring and formation and general business sale and purchase advice. The optimum candidate for this role will be ambitious, commercially astute, have a strong client focus and proven leadership qualities. A professional approach together with the confidence to attract, build and maintain client relations will be key attributes that will come naturally to you. This unique opportunity is available for someone who ideally has a well-established legal practice within New Zealand, providing the possibility of bringing a transferable client base to this growing commercial team.

To apply please send your CV and academic transcript to Ben Traynor at admin@nicherecruitment.co.nz

Become an integral part of this highly successful, innovative team who works with quality clients and realises the importance of a healthy balance between work and lifestyle - the benefits here are impressive! Ref: ELR213

Phone: +64 4 471 1423 Email: admin@nicherecruitment.co.nz www.nicherecruitment.co.nz

For further information in complete confidence contact Michelle Stewart, Director, 09 524 7543 or email jobs@epiclegal.co.nz, www.epiclegal.co.nz

Intermediate Solicitor – Commercial Property

Commercial Solicitor 2 to 5 years’ PQE

Litigation Solicitor 2 to 4 years’ PQE

Cook Morris Quinn invite applications from suitably experienced lawyers for new positions in our busy commercial and litigation teams. We offer: • • • • • •

A wide variety of work Good supervision from experienced lawyers Ongoing career development Competitive remuneration A positive and professional working environment Immediate start available

Applications should be made in writing to: Andrew Cook, Partner Cook Morris Quinn P O Box 1295 Shortland Street Auckland 1140 Email: andrew.cook@cmqlaw.co.nz

Meredith Connell’s reputation as one of the best employers in town is a key reason why we have one of the lowest rates of staff turnover amongst large law firms in New Zealand. We combine exposure to top quality work and clients with access to hands-on mentoring and training in a friendly and supportive environment. The commercial property team has a broad focus – everything from major retailers to local authorities and government departments, from boutique commercial landlords to local and offshore property investors. We also act for a number of infrastructure organisations. The successful candidate will have exposure across a wide range of commercial property matters. The role would suit a solicitor with 4-6 years PQE with a solid background in commercial property law and, ideally, time spent in a major law firm. We are looking for a highly motivated individual with excellent client relationship skills, lots of initiative and the ability to work well with a top performing team. If this sounds like you, contact us now. To apply, please email your CV and academic transcript to Alana Podbielski by email: alana.podbielski@ meredithconnell.co.nz. Applications close on 31 August 2012. LAWTALK 802 / 17 AUGUST 2012

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SITUATIONS VACANT

CIVIL LITIGATOR - CHRISTCHURCH

IN-HOUSE: SENIOR COUNSEL

Located in a major residential / retail hub, and also servicing an extensive rural hinterland, this well positioned Christchurch firm offers the full spectrum of legal work to a range of clients from private individuals through to large companies and statutory bodies.

• High profile advocacy role • Wellington CBD

Due to the increasing workflow across family law, relationship property and civil disputes, this non-legal aid practice requires an energetic civil litigator to complement the property / commercial team. While not essential to the role some experience in property transactions would be useful.

Our client is a national regulatory organisation. It has a vacancy for a senior litigation lawyer for high level matters including strategy, advocacy and advice. It will require some court and tribunal appearances and involvement with government. Other responsibilities include preparing opinions and carrying out research on regulatory issues; assisting in the preparation of board papers; assisting with investigations and providing general legal advice and training to staff.

This role will suit a personable self-starter with 3+ years post qualification litigation experience. Working autonomously, you will be the direct point of contact with clients. You will also receive comprehensive mentoring from the litigation team within the wider firm, and assistance with sales and marketing.

Ideally applicants will have the following attributes:

In return this respected practice offers a first rate culture, the latest training in legal practices and a healthy work/life balance.

• Computer literacy.

Jennifer Little | Marissa Barnao Ref: 31039

A detailed position description is available. Applications close on 26 August.

CHRISTCHURCH – LAWYERS NEEDED

Carla Wellington | Marissa Barnao Ref: 30941

As the city of Christchurch prepares to rebuild, this specialist centrally located Christchurch firm is in growth mode to accommodate the increasing workflow. Working closely with many developers this firm will be at the forefront of major developments within the city in the coming months and is therefore looking to recruit the following positions: Commercial and Property Lawyer 4+ years experience (Christchurch office). Ref: 30136 Civil Litigation and Dispute Resolution 2 to 4 years experience (Christchurch office). Ref: 31038 General practitioner 2+ years experience (Ashburton office). Ref: 31037 Important to the firm is your flair for achieving the most practical and cost effective outcome for clients, and your ability to develop a respected reputation within the market. This firm is quick to reward outstanding performance and places importance on staff development. White Fox & Jones operates from spacious, modern Moorhouse Avenue premises. Jennifer Little | Marissa Barnao

• At least 10 years’ post admission experience • Substantial litigation experience • The ability to work as part of a team and independently • Excellent written and oral communication skills.

PROGRAMME EXECUTIVE • Shaping legal education • Collegial team NZLS CLE Ltd provides an extensive continuing legal education programme throughout New Zealand. The growing complexity of the law along with the introduction of Continuing Professional Development in 2013 requires the expansion of the CLE programme and the appointment of a Programme Executive to assist with that expansion. This is a challenging and exciting role which will include responsibility for designing, planning, implementing and marketing a range of programmes, such as seminars, conferences and workshops in a variety of formats including web-based products. Ideally applicants will have the following attributes: • A law degree and some experience in practice • A keen interest in legal education • Wide networks within the legal profession • Proven research skills Experience in a commercial environment is also desirable. A full job description is available. Applications close on 24 August. Carla Wellington | Marissa Barnao Ref: 31057

To apply, please send your CV to wellingtonjobs@momentum.co.nz quoting the relevant reference number. For a confidential chat, please contact Carla, Jennifer or Marissa on 04 499 6161. 191 Queen Street Auckland P +64 9 306 5500

40 Mercer Street Wellington P +64 4 499 6161

M O M E N T U M .C O. NZ


LawTalk Issue 802