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INSIDE
THE MAGAZINE
FEATURE: THE RURAL NEW ZEALAND LAWYER
“The jurors who take their roles seriously ... face a lonely and difficult task, which can cause them great anxiety.” p. 16
“Townies don’t understand the issues that are going on … if it wasn’t for the rural side of our economy we would have had a significantly worse recession.” p. 5
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Give coronial recommendations some teeth
Community justice
By FRANK NEILL
“Coroners in New Zealand are to some extent ahead of the rest of the comparable western world jurisdiction...
11 Auckland student wins Witex contest Timothy Conder of Auckland University won the 2012 Minter Ellison Rudd Watts Witex Competition...
A new community-driven justice system trialled in Canterbury could go national...
16 Proactive steps by courts will go a long way to addressing current concerns about the “Googling juror”...
17 Ethics important for commercial lawyers’ clients
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Riding the in-house wave By RACHAEL BRECKON
To say Winston Cowie has used his law degree in a lateral way is an understatement...
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Addressing concerns about Googling jurors
Successful companies aim high in everything they do, including ethics...
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Taxation of foreign superannuation The Government has announced proposals to overhaul the taxation of foreign superannuation...
19 Copyright and public domain not at war
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Rural practice – the green grass
Practising rural law
Survey of rural lawyers planned
By ELLIOT SIM
By RACHAEL BRECKON
What does it mean to be a rural lawyer? Christchurch practitioner and specialist in rural law Kit Mouat says lawyers in rural areas...
To be a good rural lawyer takes commitment, not only to the law, but also to the agricultural sector...
Problems and issues shared by lawyers and law firms which are located in rural areas around New Zealand are to be investigated...
REGULARS
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People in the law
Welcome to the Profession
Letters to the Editor
Branch News
Overseas
The Bookshelf
CLE
Lawyers complaints Service
nzls lawyers website • keep up-to-date with local and regional news and events • have your say on law reform • find information and resources for practising law http://my.lawsociety.org.nz www.facebook.com/mylawsociety https://twitter.com/mylawsociety
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FROM THE LAW SOCIET Y TEGS BU RT
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his issue of LawTalk looks at rural law and rural lawyers. Agriculture is still the powerhouse behind our economy, and it is important not to overlook the contribution of the lawyers who advise the sector. The everyday perspective of many Southland lawyers is different from that of lawyers in the big population centres. Like an in-house lawyer, rural lawyers need to develop specific relevant legal skills and have a good understanding of their client’s wider business needs. The economy has weighed on the minds of rural lawyers since Fonterra announced last month that the 2012 milk payout was down 19% to $6.40. The dairy giant says the increase of production (last year milk production was up globally) will somewhat mitigate the low payout, but the loss of cash flow will be significant and impact farmers’ ability to make deals over the coming 12 months. While a downturn in commodity prices affects the national economy, rural lawyers directly rely on the farmer dollar and will immediately feel the financial impact. The proposed fixed fees and changes to the Family Court system will impact even further on practitioners in the rural community.
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Over the next year it will be a difficult time for many practising in the rural sector. Some practices may have to put the engagement of new practitioners and succession plans on hold. Although the environment is difficult to say the least, there are opportunities for lawyers in the rural sector. It is likely the increased regulatory environment on New Zealand farms could provide opportunities for the profession. The increased red tape in the rural sector does not come without its controversy, but the continued rise of compliance issues appears inevitable, and impacts on farmers from the soil up. Where I am based, in Southland, the increase of regulation surrounding water and dairy farm conversions means farmers now need to complete management plans. This includes grazing, fertiliser regimes and effluent management. Noncompliance with local and central government regulations and those provided by farmer cooperatives themselves can result in horrendous fines and time-consuming litigation. This opens up opportunities for lawyers to aid farmers in regulatory compliance and to ensure that the rural sector is prepared and compliant with regulatory changes.
Tegs Burt President, New Zealand Law Society Southland branch.
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
Law Society report to members, 2011/12 With this issue of LawTalk, members and associate members of the New Zealand Law Society will receive a copy of the Law Society’s report to members for the year to 30 June 2012. The Law Society is required to submit an annual report to the Minister of Justice on its regulation of the legal profession. This is also published each year on the Law Society website after it has been tabled in Parliament. The separate members’ report provides information on the Law Society’s regulatory role as well as information on other activities and initiatives. This includes the work carried out by law reform committees, branches, Sections and the Law Society’s Board and Council.
Coming up … Medico-legal conference
ACC advocacy
The Health and Disability Commissioner’s Medico-Legal Conference 2012 will take place in Auckland on 17 October and in Wellington on 18 October. Speakers will include Health and Disability Commissioner Anthony Hill, Professor of Health Law and Policy at Auckland University Professor Ron Paterson and senior research fellow, Centre for Health Policy, Programs & Economics, Melbourne University, Dr Marie Bismark. See www.hdc.org.nz/education/ hdc-medico-legal-conference-2012.
A one-day conference with an ACC focus will be held in Auckland on 26 October.
Mental Health Law The full day Mental Health Law Conference 2012 will be presented in five main centres – Dunedin on 1 November, Christchurch on 2 November, Wellington on 9 November, Hamilton on 15 November and Auckland on 16 November. Organised by boutique health sector law firm Claro and the Australian and New Zealand Association of Psychiatry, Psychology and Law, the conference is focused on children, young people and mental health. For more information contact Iris Reuvecamp 021 869 361, (04) 550 5356, or email iris. reuvecamp@clarolaw.co.nz.
ISSN 0114-989X
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
The conference will feature four speakers with expertise in the area: Philip Schmidt, Hamish Peart, Andrew Cadenhead and Kevin Murray. The conference will provide an opportunity for participants to upskill, gain a greater understanding of ACC law and network with other lawyers and advocates who have similar issues with ACC and ACC law. RSVP by 19 October to Jeannette Brock, phone (09) 435 6877, email g.brock@ clear.net.nz.
Collaborative law The Collaborative Law Association of New Zealand is running a two-day training workshop on 8 and 9 November. For lawyers wanting to train in collaborative law, the workshop will be held at the Institute of Professional Legal Studies, Auckland. Collaborative law is currently being used in New Zealand for family disputes but is applicable to a wide range of disputes, including employment, commercial and civil. For more information contact Kyla Scott, kyla@familylawresults.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.
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Rural practice – the green grass By Rachael Breckon To be a good rural lawyer takes commitment, not only to the law, but also to the agricultural sector. “It’s not just about being a lawyer. It is about being seen to commit to the industry and to promote the industry as well,” according to Chris Spargo, director of Rotorua-based rural law firm BlackmanSpargo. “I think there are a lot of people that don’t necessarily treat the industry that well,” he says. The KPMG Agribusiness Agenda 2012: People unlocking the future backs this thought up. According to the 80-page report, agricultural industry leaders see the urban rural divide continue to grow. Because of this divide, Mr Spargo says to do well you need to really understand the industry and understand the people that you work with. “Townies don’t understand the issues that are going on … if it wasn’t for the rural side of our economy we would have had a significantly worse recession,” he says. Mr Spargo is not only clued up on law, but also Fonterra payouts and climate issues as well as international currency and trade. “Farmers always ask me about what’s happening, and I am not an expert,
but they just want some guidance and help,” he says. “To understand someone’s business you have to understand their industry. You can’t give advice in a vacuum.” Presently lawyers don’t appear to play much of a development role in the agricultural sector (a search of the words “law” and “lawyer” in the KPMG Agribusiness Agenda 2012 delivered zero results). “Lawyers have tended to stand back. There is huge opportunity to be involved in the industry,” Mr Spargo says.
professionals who promote farming in Southland and the lifestyle and education opportunities it provides for families. The group includes banks, real estate agents and accountants. They use the network to go to national and Waimumu field days and promote their services as a group. All rural lawyers spoken to by LawTalk emphasised the importance of spending time in the community. This means everything from joining clubs, sponsorship and participating in community events through to a commitment to the national agricultural sector.
BlackmanSpargo is a member of Federated Farmers and committed to lifting standards across the sector.
Rural calendar
“There is more of an opportunity to help farmers. They, at times, get left behind. There is more room to be the fence at the top of the cliff rather than the ambulance at the bottom.”
The official start of the dairy season, 1 June, often referred to as “Gypsy day” as share milkers change farms, is the day the majority of transactions for the dairying industry occur.
AWS legal partner Toni Green, based in Invercargill, is part of the firm’s rural legal team.
Ms Green says this is a really big undertaking and includes everything from employment contracts to farm sales and purchases. The whole firm gears up for three months for that one day of transactions.
She says a part of being a rural lawyer is farming knowledge, “so we have a little bit of understanding of their world”. The firm is also part of the Farming in Southland network, a group of rural
After that, when the lambing and calving seasons begin, the rural team will often put on their gumboots and go
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THE RUR AL NZ L AW YER to clients, who may be too busy on the farm to deal with their legal issues.
Becoming a rural lawyer Before hiring an out-of-town lawyer, Mr Spargo and Ms Green say their firms look at connectivity to the local or rural sector. “Because we are in Invercargill, we’ve got a really strong focus on getting people with Southern connections, because otherwise they just don’t stay,” Ms Green says. Mr Spargo says BlackmanSpargo will look at hiring someone from an urban background, but that person would have to demonstrate a commitment to the rural sector. City lawyers, who desire a rural lifestyle, should not be put off because they don’t know anything yet. Partner at Barltrop Graham in Feilding, Lloyd Evans, who has been working in the area for over 40 years, says agricultural knowledge grows through the course of working with farmers over years.
Benefits of working rural “Most farmers are pretty straight up and honest people. They call a spade a spade and expect that from people they deal with and they see through people pretty easily,” Mr Spargo says. “But on the flipside, you tend to have a better relationship with those people than a big corporate, I guess, where the relationship can change overnight with changes to the CEO or the senior management team.” However, it can take years for an outsider to be accepted into a rural community where relationships are not built lightly. Mr Evans says working as a practitioner in an “old style” conveyancing firm has meant he doesn’t have to deal with the “emotional stress” other lawyers can face. “It’s a pleasant way to spend a week. Clients come in, it’s a happy half hour and they tell you what they need,” he says. “It’s probably idealistic to say farmers are nice people, but farmers, by and large, well they are pleasant people to work for and in most cases they are good clients.” LT
John Angland
Practising rural law By Elliot Sim What does it mean to be a rural lawyer? Christchurch practitioner and specialist in rural law Kit Mouat says lawyers in rural areas need to be general practitioners and have the ability to work with others to gain the vast amount of knowledge needed to deal with rural matters. Mr Mouat is a consultant at Goodman Tavendale Reid Law, an accredited supplier to Land Information New Zealand (LINZ), and has a detailed understanding of land matters. He specialises in advising the agricultural sector in high country tenure reviews, resource law – including foreshore and seabed – conservation land, Queen’s chain issues, land status, Māori issues, planning, conveyancing, valuation and arbitrations. “I deal mainly with high country people and the special nature of their leases that they have from the Crown and the way that the legislation impinges on pastoral leases.” He also determines what the Crown will pay in compensation for anything which may impact on someone’s land. “When it comes to rural law in a
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farming sense, it starts getting a hell of a lot more complicated with water rights, milking rights, and the ownership structures, structures that they have for the irrigation companies and they’re all different and varied. “Then you’ve got paper roads, Queen’s chain and issues like that, that can arise on the odd occasion,” Mr Mouat says. To be able to successfully carry out rural law work, Mr Mouat says lawyers need to have a good understanding of ownership structures, the rights of the companies such as Fonterra and its structures as well as a “huge understanding of resource management law”. Working with specialists in particular areas is also important. “If you’re going for water consents it’s absolutely huge. You’ve got to be able to get people around you and have some really good scientist-type people in the water area. “So really a lot of these cases are dealt with in three ways, between lawyers, accountants and the experts in the field of resource management.” In a single office, he says, a lawyer would have resource management people, legal executives for
THE RUR AL NZ L AW YER conveyancing and lawyers versed in the financial complexities of enterprises and structures. “You deal with real people when you’re dealing with farmers. That’s one of the good things about it. You can go out to them, too, and have a look. I have had quite a few helicopter rides out of it. It has all those sort of advantages as well.” Senior partner at Ronald W. Angland and Son Lawyers, John Angland, works in Leeston, 40km southwest of Christchurch. Mr Angland specialises in rural and recreational land-related transactions, asset protection advice, commercial and business law, tax planning structures, trusts and estate management and succession matters. He has been involved with corporate and rural law since 1985. “They’re (rural law) general practice but primarily it’s property in family, and small business in terms of leasing. It’s not so much your heavy duty corporate work. “You’re not just dealing with residential transactions but also farming aspects. You have to have a pretty good handle on GST and tax law as well. The numbers are substantial and miscalculations can be expensive. “For an urban lawyer coming out to the country, that’s an area that they would need to bring themselves up to speed with and land-related transactions, particularly with the changing GST and tax rules,” says Mr Angland. He says when working for families, work tends to be more separation and relationship property matters. “I think in the 20 years I’ve only ever had one that has gone to the Family Court as a dispute so generally they tend to be relatively straightforward. Maybe it’s because people have a more laid back attitude in the country.” Mr Angland says his practice also encompasses estate planning, estate administration and trusts as “there is a lot of desire to ensure good succession for the family in rural farms”. The internet has also allowed him to do some international work. “The internet is amazing because it lets you do so much from anywhere. Once upon a time when you were out in the country practising law you were relatively limited in what you could
take on in terms of ‘out of the area work’. Nowadays, I act for people right across the country from Auckland to Invercargill. “It also allows me to do overseas investment work.” Mr Angland says successfully practising in rural areas is achieved through working with a wide range of specialists. “That’s something that I do a lot of. I use specialist firms for overseas investment work. “We tend to have a network. You might have a little business on your own in the country, but networking with those other larger firms for specialist advice
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Good will is really critical to your business.
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community in terms of pro bono work for the charitable trusts, rugby clubs and those types of people”. Therefore, Mr Angland says, rural lawyers are attuned to their clients’ financial situations and may write off work which some clients may not be able to afford. “Whilst your business might be profitable, turnover is a lot less for the month than comparative to what you would be doing if you were working in the city. “Sometimes you carry your clients through quite a lot when times are tough and because your potential client base is a lot more limited than the urban environment. Good will is really critical to your business.” Mr Angland says the true advantage of working as a rural lawyer is the people and the lifestyle. “Working in a community that you know, the support goes both ways. They’re generally pretty good people out here”. LT
Survey of rural lawyers planned
John Angland is an important part of the practice,” he says.
Problems and issues shared by lawyers and law firms which are located in rural areas around New Zealand are to be investigated with an online survey this month.
Conflict of interest in the law is also something prospective rural lawyers need to be aware of. In conveyancing deals, Mr Angland says there are often times where clients are both buyer and seller and he may have to refer clients for independent advice.
The survey is a joint initiative of the Law Society and practice management consultants Ashley Balls and Simon Tupman.
“Recognising the conflict is really important. When you have to send people away it can be annoying for the client and it is frustrating, but that’s something that lawyers have to be pretty conscious of that they don’t get involved in conflicts in that area.”
While there is anecdotal evidence about difficulties in rural areas – such as high costs for support services, communications, and obtaining adequate legal information and continuing education – the survey will aim to generate data to develop a picture of rural practices in New Zealand.
A good relationship with the community is also important as “rural lawyers are very involved in the local I welcome instructions in these areas: • Family Matters • Employment Law
• Civil Litigation • Disciplinary Tribunals
Jeremy@jeremysutton.co.nz 3rd Floor, Parkview Tower 28 Davies Ave, Manukau 2241 Tel (09) 263 6953 - mob 021 369 488
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Give coronial recommendations some teeth BY FRANK NEILL The Coroners Act 2006 is being reviewed, having been in effect for five years. Chief Coroner Neil MacLean has suggested one enhancement would be a requirement that agencies formally respond to coronial recommendations. In an interview with LawTalk, Judge MacLean outlined the case for this change. “Coroners in New Zealand are to some extent ahead of the rest of the comparable western world jurisdiction with a wide ability to look into the wider circumstances of a death, not just come out with a simple finding,” he says. Coroners can investigate what happened, how it happened, why it happened, and say “having looked at the evidence, here is a recommendation that I think, if implemented, would have the chance of minimising this happening again or perhaps even preventing it”. In the five years since the Coroners Act was implemented, coroners have made a lot of these recommendations. What has emerged, however, is that many of the recommendations were simply either ignored or there was no feedback at all. “I relatively recently started to advocate for a possible change in the Coroners Act, to align it with what they do in Victoria, Australia, and have done for many years in England and Wales. “That is to provide for a mandatory response to a targeted recommendation, be it to an organisation or a minister or a ministry or whatever. “I think some in government misunderstood what I’m getting at and think that I’m looking for coroners to have the power to make the legislature or the executive government do certain things. “That’s never been what I’ve advocated, because that would be contrary to the separation of powers. “All I’m asking is for an organisation to at least respond, even if it is to say ‘I think your recommendation is completely daft. You haven’t got the picture right, it is far too expensive, or it wouldn’t work,’ or whatever. “In practice I’ve noted that if it is a government organisation, be it a minister or a ministry or quasi government, that we are getting responses back, and
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they are often quite supportive.” These responses are saying “we’ve read your recommendations. We agree with them in whole or in part and this is what we are going to do about them”. That, Judge MacLean says, “is a rich resource of information for the benefit of the public of New Zealand. “And so recently, in accordance with my statutory obligation under the Coroners Act, I publish in a publicly accessible way summaries of coroners’ recommendations. But we’ve also gone farther and if there is a response, we publish a summary of that as well.” (See www.justice.govt.nz/courts/ coroners-court/recommendationsregister-data.) “So there is building up now an invaluable record, of both historical and practical significance, of what coroners have said, what the response has been or if there is no response. “We’ve gone even further. As well as putting that on the website, we’ve actually just started a publication we call Recommendations Recap. That’s an edited, in one package, list of the recommendations over a certain period identified by theme or subject matter: mental health, safety, suicide, whatever. “There has been a huge response from an astonishing range of organisations around the country, be it district health board, various media outlets, etcetera, etcetera. “The theme of the first was SUDI, Sudden Unexpected Death in Infancy, the second one was butane-related deaths or huffing.” Coronial Services will probably produce a Recommendations Recap quarterly, depending on the recommendations going out and the responses coming in. “I see that as a quite exciting development, which will go part of the way towards my concern of informing the public and the institutions around the country that need to know about all this work coroners are doing and what’s been recommended.
“I’m hoping that people like the media, like LawTalk, like interest lobby groups will look at this and they will see that coroner x and coroner y and coroner z all recommended this be done and there was no response at all.” Judge MacLean is, he says, getting feedback from people like the Ministry of Health, the New Zealand Transport Authority and chief medical officers of the district health boards saying: “Look, we really value this. We do value what coroners say. We don’t always agree. But keep it up and we’ll do our best to make sure we respond.” In England and Wales, they have what they call Rule 43, which provides for a mandatory response within 56 days. That’s handled by the Lord Chancellor’s Department, which issues a list of organisations that do not respond within 56 days. “So it is a naming and shaming mechanism. “I don’t see any reason why we don’t go that further step. “If it makes sense to give coroners resources and power to make recommendations, it makes sense to give some added strength to those by requiring at least a mandatory response.” Then, if a situation arose where a particular type of death was happening again and again, “we have got the ammunition to say: ‘why are you ignoring these recommendations? Why are you not even responding to them?’ Or we can say, ‘you keep saying that [the recommendation] is not workable or it will make no difference, but is that right?’” A ministerial review is currently under way to see whether, after five years, the Coroners Act as implemented is still fit for purpose. (Courts Minister Chester Borrows announced on 31 July a targeted review of the coronial system and the Coroners Act 2006. Mr Borrows said he intended to take proposals stemming from the review to Cabinet early next year.) “I am aware that the Minister for Courts … has made it clear that he thinks that
OPPORTUNITIES the system is still too slow. “He wants to look at whether, either by legislative or other change, there are ways of improving. I’ve been asked if I see that as a criticism of the way things are going. The answer is ‘no, I don’t’, because I share his concern that we aren’t fast enough. “There are hundreds of reasons why that can be. People often don’t understand that sometimes the coroner has to await the outcome of various prosecution processes. Sometimes it can take quite a long time to get the specific detail of post mortem or toxicology information that you need. “Often when you get a high profile enquiry, like the Kahui inquest or the Muliaga inquest, you have a lot of interest groups. They are often actually, ironically, saying to the coroner, ‘you are going too fast. We’re not ready for this.’ “So we almost get as many complaints about going too fast, about pushing ahead so soon or so energetically, as we do about delay. “That, perhaps, suggests that we have got the balance about right. “We do, however, need to investigate ways of making the Act work better in the spirit of the Act, which is faster and more sensitive. So that’s going to be an interesting development in the new year, just to see what emerges.” Another controversial issue is the reporting of suicide, Judge MacLean says. “That’s something coroners up and down the country struggle with 540 times a year or so.” One of the advantages of the new Act was that it enabled coroners to avoid having to hold a public inquest hearing into a suicide, although the family of the deceased had a veto right, and could demand a public inquiry. One of the “big issues” was that the 2006 Act put an extra barrier on a coroner when deciding what to authorise in terms of publication. What had been a simple open discretion, which coroners had been “pretty conservative” about, became a requirement that in deciding upon publication, coroners could only publish the bare facts of name, address, occupation and the fact the coroner had found the death was self-inflicted, unless the coroner was satisfied that any other information published would not cause public harm.
Two factors Judge MacLean says he has become aware of are: a) there is huge concern about our suicide rate, and particularly our youth suicide rate; and b) there is a hunger and a desire by people like parents of troubled teenagers and others to know about what’s behind this. “What I’ve been saying to coroners is, turn it around the other way. If you feel from what you’ve learned, parents need to know about this or the farming community needs to know about this or whatever and that it would do good, public good, then it probably follows that that balances out the potential for public harm.
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All I’m asking is for an organisation to at least respond, even if it is to say ‘I think your recommendation is completely daft’.
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Neil Maclean “We need to be looking out for all of the warning signs: what’s normal in a teenager, what isn’t, what’s this about butane and huffing, what’s this about cyber bullying, what’s going on? “So I’m on record as advocating what I call a gentle opening up of this.” At the same time, coroners need to be cognisant of phenomena such as copycat suicide, clusters and what people call a contagion effect. “A jagged mountain range is a feature of the suicide graphs. But there’s also another feature, that you’ll suddenly see an eruption of little jagged peaks all in close proximity to each other in a particular, relatively finite geographical area. “When coroners look into it, they actually struggle to find a link. It is tricky, difficult territory. “There is an ongoing debate, which is
starting to hot up again now, whereby a group within psychiatry and psychology and generally within academia … are very concerned that what I am doing is dangerous and, by implication, is responsible for the recent surge in teenage suicide rates. “On the other hand, you have the whole media construct, represented by the freedom in media group (including the informal media, such as tweets and social media) who generally strongly support the concept of an open democratic society, where we can’t put our heads in the sand about this topic. We need to know more. “Coroners are right in the middle of all this. “There is a need for more research to be done and my office is assisting by encouraging a flow of up-to-date information to key players, particularly within the Ministry of Health, to start to do some analysis and see if they can pick up broader social patterns or themes.” Judge MacLean also commented on the recent Kahui inquest and the surprise it caused. “I think the legal profession and the community generally have been astonished to realise that you have an inconclusive criminal trial, with a person acquitted, and yet the coroner can hold an inquest where the criminal system could not go.” The inquest heard evidence from the acquitted accused and brought in experts, hearing them together, and came up with a consensus view of what happened. The inquest was actually able to “zero in and say, this is exactly what happened, this is when it happened, this is how it happened and to actually say at the end that he was satisfied that the acquitted accused was the only person who could be responsible. “Now that really, I think, opened up the eyes of the legal profession and the wider community to what the reality of an inquisitorial system really is. “The coroner has the power and ability to drive a case in the direction he or she feels needs to be investigated, not what the parties put up … or don’t put up, but take a broader picture and look at all the evidence.” Not that he is promoting replacement of the adversarial criminal system, but rather noting that the coronial system is “an inquisitorial group in an adversarial nest”. LT
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PEOPLE IN THE LAW ON THE MOVE Corporate and commercial lawyer Stephen Layburn has hung out his shingle in Auckland as a commercial barrister. After more than two decades working in the corporate/commercial sector, he is continuing to provide a mix of advisory, drafting and regulatory inputs for a broad range of corporate and commercial matters affecting local and overseas businesses. These include matters affecting business structures, compliance issues (particularly in the financial services sector and securities law arena) and corporate governance issues. He also advises on matters affecting non-standard entities involved in commercial activities and not-for-profits involved in a range of undertakings. Stephen is the convenor of the Law Society’s Commercial and Business Law Committee.
Cooney Lees Morgan has promoted Scott Goodwin and Roann Watson to associate. Scott and Roann have been solicitors with the firm for the past four years, after starting within months of each other in 2008. Scott is well known within business, horticulture, property and asset protection circles. Roann operates within the commercial sector, advising clients on contract and commercial matters including franchising, licensing and joint ventures.
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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.
Maria Clark has joined barrister Jeremy Sutton in his Manukau office. Maria has been working for Minter Ellison for the past 18 months in civil litigation and joins Jeremy’s specialist team to focus on civil litigation and family law. Rainey Collins has appointed senior commercial and business lawyer Tony Southall as a consultant. Tony has practised in Wellington throughout his legal career, and became a partner in his first firm over 30 years ago when he was 25. He recently moved to Rainey Collins from a larger firm, where he was chairman of partners for eight and a half years. Tony specialises in business and commercial work, advising businesses and their owners on their structuring, mergers and acquisitions, compliance, governance, business and property contracts, and legal and business strategies. Advising business owners on grooming their businesses for sale and exit strategies is a special area of expertise and interest. Tony also has an extensive private client/trust practice. Hesketh Henry has appointed Stephanie Corban a senior associate in the litigation and dispute resolution team. Stephanie’s practice is across the general litigation area with a specialised practice in
insurance litigation. Jodi Clark has been appointed a senior solicitor. Jodi specialises in employment law within the litigation and dispute resolution team. Marty Logan has been made a partner of Pitt & Moore in Nelson. Marty has practised in all areas of commercial litigation and has a particular interest in all issues relevant to the maritime, fishing and aquaculture industries.
PEOPLE Claudia Geiringer has been appointed to the Chair in Public Law at Victoria University and as Director of the New Zealand Centre for Public Law. The newly-created chair recognises the importance of public law and its significance in the country’s capital, the city where law is made. Professor Geiringer completed an honours degree in history and worked as an historical researcher at the Waitangi Tribunal before studying law at Victoria University. After finishing, she worked at Crown Law in the Bill of Rights team, starting as assistant Crown counsel and eventually becoming a Crown counsel. On her return from postgraduate legal study at Columbia University in New York, she joined Victoria’s Faculty of Law as a lecturer. Professor Geiringer’s recent
PEOPLE IN THE L AW research includes the book What’s the Hurry? Urgency in the NZ Legislative Process 1987-2010 (with Professor Elizabeth McLeay and Polly Higbee), published late last year. She is one of New Zealand’s leading experts on the New Zealand Bill of Rights Act 1990 and continues to appear before the courts in Bill of Rights cases. She has also served a term as the special counsel for human rights for the Victorian government. Brigid McArthur and Karen Price were among the New Zealand winners in the inaugural Australasian Women in Law Awards, announced in Sydney recently. Ms McArthur, a partner of Greenwood Roche Chisnall in Wellington, won the energy and natural resources practice area award. Ms Price, a partner of ChanceryGreen in Auckland, won the environment and planning practice area award. Auckland barrister Judith Moorhead has been reappointed to the Liquor Licensing Authority for a term of five years. Ms Moorhead has been a member of the authority since 2007. Wellington lawyer Elisabeth Welson has been appointed to the Commerce Commission as an associate member. Ms Welson was most recently a partner in Simpson Grierson where she co-led the firm’s competition and regulatory group and also headed up the energy, natural resources and utilities market group. Her four-and-a-half year term began on 20 September.
LAW FIRM NEWS
Allan Bowie and Scott Yorke have formed a new law firm, Bowie Yorke, that will provide commercial and intellectual property law services to technology companies and other innovators. Allan and Scott were previously at AJ Park, where they established that firm’s commercial team. Before joining AJ Park, Allan was a partner at Minter Ellison Rudd Watts. Allan and Scott have between them almost four decades of experience in commercial and intellectual property law. Bowie Yorke will provide commercial and IP law services in a range of areas, including licensing, technology transfer, commercial contracts, R&D, and trademarks. LT
Auckland student wins Witex contest Timothy Conder of Auckland University won the 2012 Minter Ellison Rudd Watts Witex Competition. Timothy defeated William Findlay from Victoria University in the final, held on 1 September at the Auckland High Court before a near capacity public gallery. The Witex competition is a simulated trial. Two students compete against each other, one as counsel for the plaintiff (civil) or prosecution (criminal) and other as defence counsel. Each counsel calls one witness. The competitors conduct examination-in-chief of their witness and cross-examine their opponent’s witness. The rules of evidence, as applicable in New Zealand courts, apply in the competition. Justice Rhys Harrison of the Court of Appeal and Deborah Hollings QC judged the final. The final problem was based on the common law justification of consent to assault in the context of a professional rugby match. Terry McFetridge of Waikato University, Megan Lynch of Canterbury University and Matthew Dodd of Otago University competed during the conference, having each won their university’s competitions. LT
The expert in professional liability and discipline The team of four at Ebborn Law Limited at its opening night function on 14 September (from left) Michael Jones, Jarrod Coburn, Erin Ebborn and Ryan Pegram.
Erin Ebborn has formed Ebborn Law following 13 years in the legal profession. Specialising in family law, Erin also handles criminal and traffic matters. Ebborn Law is established in Addington, Christchurch with a staff of four. Erin started the business to continue to offer representation through legal aid, as well as a fixed fee regime for non-legal aid family law matters.
LANE NEAVE LAWYERS CONTACT DUNCAN WEBB:
T 03 3793 720 M 021 244 3346 E duncan.webb@laneneave.co.nz
www.laneneave.co.nz
LAWTALK 805 / 12 OCTOBER 2012
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WELCOME TO THE PROFESSION In this issue of LawTalk we start a new section, where we welcome recently admitted lawyers to the profession. In our first “welcome”, we include everyone who the relevant courts have informed us was admitted during August and September.
Whangarei Vanassa McGoldrick
Auckland Frances Mary Jess Cummings Glen Errol D’Cruz Hannah El Ojeili Dominica Margaret Finch Ana Hinemoa Hakaraia Christopher Peter Hallowes Charles Scott Mercer Henley Michael Liam Kedzlie Komal Mistry Young Jun Park Mo Yee Poon Patrick William Rosevear Jonathan Len Schwarcz Maria Cecelia Ware Fergus Whyte Conrad Greer Wright
Tauranga Alexandra Elizabeth Cannell
Wellington Michael Deverick Allan Philippa Reeves Allan Helen Angela Rose Arathimos Georgina Louise Austin-Ellis Hannah Maree Bain Rowan Jeffrey Barbalich Michael John Bell Christina Evelyn Billing Amelia Judy Bleeker Grace Margaret Boos Charlotte Honora Leeson Bradshaw Samantha Jean Brennan Katherine Rose Bromley Emily Aileen Buist-Catherwood Andrew Lincoln Burns Edward Alister Cade Anna Fox Cameron Michael David Carroll
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Timothy Robert Carter Robert Benjamin Crabtree Carr Nicholas David Chapman Sheryl Sangeeta Chetty James Nicholas Christmas Helen Margaret Churchman Elly-Marie Connolly Hannah Marie Cope Catherine Marie-Chanel Coup Clare Susannah Dengate Thrush Jessica Louise Elder Jessica Elizabeth Ellison Rachel Ann Espejo Richard Donald Evans Sarah Elizabeth Farquhar Andrew Ross Grieve Alison Pamela Hamilton Monica Rose Hamlyn-Crawshaw Fern Elizabeth Parehuia Wooldridge Hyett Sarah Rose Jacobs Justine Mary King Christopher James Knight Kierra Elizabeth Krumdieck Natasha Maria Kusel John Pill La Zoe Ruth Lawton Oliver James Benson Lee Georgina Claire Leslie Mark Denny Leslie Annabel Julia Martin Joanna Helen Shipley Martin Fiona Claire McDonald Edward George McGimpsey Matthew Joseph McGrath Thomas Patrick McLaughlin Matthew Joshua McKillop April Lillian Mills Alexandra Maree Mills-Wallis Jared Robert Moss Samuel Michael Mossman Armando Neris Daniel James Norman Sarah Grant Ogilvie Aaron Peron Ogletree Jessica Jane Orsman
Bernard John Parker Meera Pankaj Patel Yogesh Patel Scott William David Pearse-Smith Nicholas Navinshashi Ponniah Sue Helen Rainey Anna Mary Reid Sophie Grace Rhind Jessica Millen Robertson Conrad Andrew Reyners Emily Rishworth Sanders Susannah Lei Kan Shaw Catherine Erica Margaret Shipton Charlotte Alys Skerten Julia Ruth Spelman Julia Anne Steenson Charlotte Beatrice Sygrove Christopher Eng Hoe Tan Oliver Douglas Tapper Shirlene Nita Taylor Sebastian James Templeton Fiona Maree Thwaites Ajay Kumar Vallabhaneni Dianny Ambar Ayu Kinanti Wahyudhi Sarah Anne Wilson Alice Xiao Nan Yang Somali Young Inna Alexandrovna Zadorozhnaya
Blenheim Peta-Claire Brunel
Christchurch Matthew James Lynch Laura Jean Conway McLoughlinWare Thomas William Peterson Matthew Bounhieng Phimmavanh Renee Christina Powell Sarah Patricia Rosanowski Ariana Muriwai Trudi Stevens Jason Andras Toth Jeroen Peter Vink Eric David Weir
IN-HOUSE Riding the in-house wave By Rachael Breckon To say Winston Cowie has used his law degree in a lateral way is an understatement.
organisation with a large range of skills, you have more ability to negotiate the job you do, Mr Cowie says.
The in-house lawyer has relocated coral, transplanted sea grass and negotiated employment contracts (all while working in Qatar).
“[The organisation] might be employing me to develop the marine science business, but I am also a lawyer so [I make them aware] I can help with the in-house lawyer role as well,” he says.
Now back at home, Mr Cowie works for engineering, architecture and environmental consulting company GHD. An avid fisherman and surfer, the Otago university law graduate began his legal career working for Russell McVeagh. “I learned a hell of a lot and respected the work Russell Mac did. Not only did they pride themselves on giving the best advice, they also did a hell of a lot for the community, legal aid work and contributing to papers and commentaries to try and improve the law,” he says. “Life in a big law firm, however, wasn’t for me. Having a conversation with a good friend at the time about what career path I wanted to take, he said: ‘Life’s your game, Winnie, no one else’s. If you’re not happy with your lot and not willing to change it, nothing will happen. It’s up to you to improve your lot. The buck stops with you.’” So, heeding this advice, Mr Cowie decided to go in a different direction and applied to Oxford University to do an MSc in environmental policy, in the department of geography. Although his tertiary background was entirely law, Mr Cowie’s proposal on coastal management in developing countries was accepted by Oxford University’s Centre for the Environment. “If you have a real interest in something, and are working in that space, you can study that, because it is your passion,” he says. As an in-house lawyer in a big
Perhaps ironically, the decision to leave New Zealand for the middle of the United Kingdom to pursue a career that would see him developing marine policy standards in the Middle East, the Caribbean and now Auckland, took him away from the recreational ocean sports that had occupied a lot of his spare time at home. Although he was “playing some pretty serious rugby” representing Oxford University on the field, which included international tours to Japan and America, there was still too much idle time for Mr Cowie, so he used this to write a novel. His novel A Flame Flickers in the Darkness has a history which spans around six years. He conceived the idea for the novel at 23 on board Tuatara, a 1946 vintage 24-foot kauri mullet boat. He then worked on it in his spare time over the next six years in a variety of countries. “It was a way to stay reasonably connected with New Zealand when I was overseas in both the UK and Qatar, especially Qatar. Qatar’s a desert.” “After a year there, we had kind of had most of the adventures we were going to have so I went about really getting serious with writing the novel in my spare time.” The journey hasn’t been simple for the ambitious in-house lawyer and, like most first novelists, he has suffered from some bumps and rejections along the road. But not to be deterred, Mr Cowie ended up self-publishing through
A passion for the ocean led Winston Cowie to seek to combine marine science with his LLB.
New Plymouth company, Publish Me. This has been reasonably successful. The historical novel based on a fictional Te Atiawa warrior and an Irish whaler is available at Whitcoulls and other independent stores. Mr Cowie is also proud to point out the excellent review it was given by New Zealand Land Wars historian Peter Maxwell. As for now, Mr Cowie has put the pen down, focusing his attention on his family which includes two “beautiful little girls” who are both under two years old. Asked the source of his motivation, Mr Cowie drew on his fortune in misfortune. He has been in five car accidents (none of which were his fault), has been electrocuted standing in a boat and although only 29 years old has already suffered through the grief of losing friends. “It all motivates you to get out there and have a good go at life. When I was in Qatar I would get up before work and write for an hour, and then at night do the same thing,” he says. Winston Cowie will be speaking to Auckland Young Lawyers on Thursday 1 November, at his old law firm Russell McVeagh on Making a role for yourself in the law. LT
LAWTALK 805 / 12 OCTOBER 2012
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WHAT’S NEW? Community justice A new community-driven justice system trialled in Canterbury could go national and replace the Police diversion scheme.
are consulted about the decisions to use the CJP process and can be represented at hearings in person, in writing, or by a third party.
A Community Justice Panel (CJP) pilot project began as a grassroots partnership between Canterbury Community Law and the Police in Christchurch.
If a victim or their representative is not present at the hearing, a panel member acts as proxy to ensure the victim’s perspective is presented.
The CJP uses a model adapted from the restorative justice programme and the Community Panel Adult pre-trial diversion pilots. It provides a forum where offenders are held accountable for their offending by a panel of approved community representatives and sets conditions to help reduce or repair the damage or harm caused by the offending within a community setting. The CJP occurs at a pre-charge stage, unlike the more common restorative justice conferences which are initiated by the court before sentence or at the completion of a sentence. Offenders are referred to the panels when they are 17 years of age or older and admit their guilt, where evidential sufficiency is met, the offence carries a sentence of less than six months’ imprisonment and it is in the public interest to proceed to a charge. The CJP process can happen without direct victim involvement although they
Police Coordinator for the CJP project, Senior Sergeant Roy Appley, says the year-long trial had been evaluated and was now awaiting a final evaluation report. “Once this is received and if the project is thought successful then a business case will be submitted to fund this project potentially nationwide as a standalone work stream. “It is my hope that this project will proceed that far and in time perhaps replace the current police diversion scheme.” Mr Appley says in his 26 years of policing the project had been the most successful he had been involved in. As of August this year, 116 cases were referred to the CJP about a year into the pilot programme, with 48 female and 68 male offenders referred under offence categories of dishonesty, disorder, driving, drugs, property damage and violence. Of those offenders, 89% had completed the sanctions set, with 5% partially
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completed, one offender referred back to the CJP and five offenders referred back to court. “The panels are attempting to make a real difference in people’s lives by attempting to discover the driver of crimes and set sanctions in place that address those drivers of crimes,” Mr Appley says. “Very open and honest conversations are had with offenders who in many cases disclose very personal matters which they may have never shared with others before. “The non-judgmental approach to offenders by the panels seems to be the point of difference. We are still working for victims through this process, but it is the offender who we have the best opportunity to facilitate change with.” The senior sergeant says victims can express the impact of offenders’ actions in front of the panel and help create the forms of restitution that might be set. Mr Appley says offenders benefit from the process by not receiving a conviction and by having an opportunity to give a detailed explanation of the reason for offending. “Immediate opportunities are revealed that might be addressed as drivers of crime, therefore giving an excellent opportunity to set sanctions that deal with this aspect.” Although Mr Appley believes the current court system is good, his view is that it should deal with more serious offending, particularly where facts are in dispute. “Any reduction in cases before the court and in preparation time of court files by Police is a positive step in the right direction. “If Police can use their resources in a proactive and highly visible way we may be able to further prevent cases needing to be brought before the court.” LT
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2012
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Addressing concerns about Googling jurors Proactive steps by courts will go a long way to addressing current concerns about the “Googling juror”, according to Judge David Harvey. His comment came during a presentation to the 13th International Criminal Law Congress, held in Queenstown from 12-16 September. “There are a number of steps that can be taken to address and deal with the ‘Googling juror’,” the District Court Judge and part-time Auckland University law lecturer said. “The first is the greater deployment of technology for information communication within the courtroom. “The second is a proper educative process for jurors. “The third addresses steps that lawyers, judges and the court can take during the trial process to enhance juror engagement within the courtroom “The fourth is a more nuanced approach to juror misconduct based upon the nature of the information sought and the impact that it may have had on the outcome of the trial.” In the conclusion to the paper, Judge Harvey says that while new information communications technologies challenge aspects of the jury trial, have an impact upon juror expectations of information and what they are able to obtain in addition to admissible evidence in court, “the jury trial is not in a state of crisis.
“Proactive steps on the part of courts to utilise new technologies and juror aids and fully explain to jurors issues such as expectations of fair trial and how independent enquiries may prejudice
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The jurors who take their roles seriously – and we can assume that they are in the majority – face a lonely and difficult task, which can cause them great anxiety.
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CAREN MORRISON the fairness of a trial and why that may be so will go a long way to addressing current concerns about the ‘Googling juror’.
“Furthermore, the educative process must start before the potential juror turns up at court on the first day and should be a continuous process, the last stage of which should be the judge’s opening remarks. “Finally, the assumption that all juror communications using new technologies will be prejudicial to trial integrity cannot be sustained and a nuanced consideration of the misconduct and a proportionate response should be employed, based upon a clear judicial understanding of the technology and the way that it works.” Judge Harvey concludes his paper with a quote from Caren Myers Morrison’s 2011 book Jury 2.0. “A bolder approach would be to try to locate a new source of legitimacy for jury verdicts, one that grows not out of inscrutability but understanding. “One of the values lost in the dismissive popular attitude towards jurors ignorant and uneducated is an appreciation of the difficulty of their task – we deny jurors many of the tools that we ourselves use in daily life. “The jurors who take their roles seriously – and we can assume that they are in the majority – face a lonely and difficult task, which can cause them great anxiety.” Judge Harvey’s address is at www. crimlaw2012.com/papers/0002. pdf. LT
Construction law essay Lawyers wanting to enter the New Zealand Society of Construction Law Essay Prize 2013 must submit their entry form by 31 October. Entry is available to people who have an interest in construction law and who, as at 31 October 2012, will be New Zealand residents and: •
will be undergraduate students at a tertiary institution in New Zealand; or
•
will have graduated from any tertiary institution with their first degree or diploma within the previous three years.
The first prize is $3,000 and the second prize is $1,500. Both prize-winners will, in addition, be granted complimentary
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membership of the society for one year. Proposed topics, and the author’s (or authors’) eligibility, must be recorded on the entry form and must be submitted for approval to the society’s secretary no later than 31 October. Essays must be received by the secretary by 5pm on 30 April 2013. Prize-winners will be announced at the society’s annual meeting in July 2013. (Everyone who has submitted essays will be invited to attend that meeting.) For more information, contact the society’s secretary, shanti.davies@simpsongrierson.com. LT
Ethics important for commercial lawyers’ clients Successful companies aim high in everything they do, including ethics, according to Philippa Foster Black. Ms Foster Black OBE is director of the London-based Institute of Business Ethics, and visited New Zealand recently at the invitation of Kensington Swan to speak to firms on the value of operating ethically.
One of the presentations she makes is of a pyramid, where you have personal values, you have company values, you have professional values and you have societal values along the top.
“
the main message would be the openness of mind and understanding the client and their needs, and not seeing everything through the black and white of the law.
“Doing business ethically makes for better business,” she says. “Research shows that companies with stronger programmes for ethics and corporate responsibility enjoy many business benefits, including reduced risk, better financial performance, and improved staff and customer loyalty.” Ms Foster Black met with LawTalk during her visit, and we asked her what her main messages would be if she were presenting to commercial lawyers. “I think the main message would be the openness of mind and understanding the client and their needs, and not seeing everything through the black and white of the law. “That’s because ethics is discretionary. It is where companies have choice. And they have to make these choices because there’s not enough law to guide you on what to do. So it’s actually thinking outside the boxes.”
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PHILIPPA FOSTER BLACK “You’ve got tensions along the bottom between personal values and company
values, and professional values and company values. “But then we’re all working within the framework of society, and societal values change over time. If society deems individuals, companies, professionals are not behaving as society would deem fit, then through the democratic process we have new regulation and law. “In the UK, for example, we have the antisocial behaviour orders, YASBOs, to try and contain personal behaviours. It hasn’t been very effective, but that’s another matter. “We have company law. New company law comes in and it is very prescriptive. Mostly, we want to keep away from more laws coming in, because we’ve got enough already. And also, if you can get behaviours of these groups to be better, then you won’t need more laws and regulation,” she says. The reason his firm invited Ms Foster Black to New Zealand is “because ethics is so important for our clients,” says Wellington-based Kensington Swan partner Hayden Wilson. As a result “we try to make the most of it whenever Philippa is in the region”. Also, Kensington Swan subscribes to the Institute of Business Ethics, the first law firm in New Zealand to do so. LT
LE T TERS TO THE EDITOR
Diversity in the profession In relation to Rachael Breckon’s feature in LawTalk 804 (14 September 2012, p4) Diversity, “[all people] have a preference for people who are similar to us”. Although it hardly needs saying that “Kiwi” lawyers tend not to be racist, they can nevertheless be cliquey and insular. The pervasive corporate-type homogeneity prevalent in the legal profession has not only produced a stereotype mind-set amongst those recruiting lawyers but also exposed prospective employers of lawyers as having an inadequate ability to identify with many overseas-qualified re-entrants. The more obviously foreign the immigrant lawyer, the greater the difficulty in securing a job in the law. The fact that many
immigrant lawyers are well qualified and able, but find it hard obtaining jobs, undermines the proposition that the profession here is purely a meritocracy. One possible explanation for the lack of empathy is that few “Kiwi” barristers and solicitors, as only native English speakers, have engaged in the daunting experience of job hunting as a migrant lawyer in countries where English is neither the national language nor has any general usage. But then one does not have to have been a Gastarbeiter to overcome the feeling of “an elephant in the room”. Charl Hirschfeld Barrister, Auckland
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Taxation of foreign superannuation By Brendan Brown and Greg Neill* The Government has announced proposals to overhaul the taxation of foreign superannuation scheme interests. Because aspects of the proposals, if enacted, may take effect retrospectively, it is important that lawyers who may be advising on such matters are aware of the proposals and monitor their progress. Under existing law, New Zealand individuals with interests in foreign superannuation schemes may be subject to tax of those interests on an accrual basis, rather than being taxed only on distributions from the scheme. In addition, the circumstances in which a distribution from such a scheme is taxable are presently uncertain. The Government has therefore proposed a law change which would see a shift to a new system under which taxpayers are subject to tax only on distributions from foreign superannuation schemes (not on an accrual basis). It is proposed that the extent to which the distribution is taxed will depend on the number of years an individual has been resident in New Zealand up to the point of the distribution. In addition, an amnesty is proposed for distributions between 1 January 2000 and 31 March 2011. The proposals are set out in an issues paper recently released by Inland Revenue and Treasury officials. The issues paper proposes that all payments from foreign superannuation schemes, whether by way of lump sum or periodic payment, be taxable to New Zealand residents on receipt. The amount of a lump sum distribution that is subject to tax would depend on the length of time between when an individual arrives in New Zealand and the point at which the distribution is made. For example (at one extreme), a taxpayer who withdraws a lump sum within two years of becoming New Zealand tax resident would be taxed on 0% of the distribution; a taxpayer who withdraws a lump sum 25 or more years after becoming New Zealand tax resident would be taxed on 100% of the distribution. Graduated percentages apply at points in between the two extremes. The objective is to tax
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investment gains that have accrued in the foreign superannuation scheme while the individual has been resident in New Zealand, which is why the percentage of the distribution of the scheme that is taxed increases the longer the individual has been resident in New Zealand. It is proposed that this graduated scale for taxing lump sum distributions would apply to distributions received from and including the 2011-12 tax year. However taxpayers who have accounted for their foreign superannuation interests on an accrual basis under the foreign investment fund rules are able to continue to do so and will not be taxed on amounts subsequently received. The issues paper also proposes an effective amnesty for taxpayers who received lump sum distributions between 1 January 2000 and 31 March 2011 but did not comply with their tax obligations at the time. Those taxpayers have the choice of applying the law at the time of the distribution or being taxed on 15% of the distribution received. To benefit from this amnesty, taxpayers must disclose the existence of the transfer to Inland Revenue before 1 April 2014. The New Zealand Law Society’s Tax Committee has made a submission which addresses several of the proposals raised in the issues paper (see www.lawsociety.org.nz/__ data/assets/pdf_file/0009/55476/ l-IRD-Taxation_of_foreign_ superannuation_Issues_ Paper-3.9_12.pdf). The Law Society supports the initiative to clarify the law relating to the tax treatment of foreign superannuation schemes and agrees that the current rules are complex, inconsistently applied and difficult to comply with. However, while strongly supportive of the broad direction of the issues paper, the NZLS has identified certain areas where the proposal could be improved. The paper proposes the use of what is termed an “inclusion rate” to identify the taxable component of a lump sum that is withdrawn or transferred to a New Zealand scheme. The use of the inclusion rate is designed to put
an individual in the same position that they would have been in had they transferred their lump sum to New Zealand upon migration and subsequently been subject to New Zealand tax on the investment income derived from that lump sum. However, the inclusion rate methodology makes several critical assumptions which are considered questionable. In many cases it could result in individuals being taxed on contributions they have made to the scheme and not just on the income derived from those contributions. The NZLS has therefore submitted that taxpayers be given other alternatives in order to more accurately identify the taxable income component of lump sums withdrawn or transferred. The NZLS has also submitted that individuals should be able to transfer amounts currently held in “locked-in” foreign superannuation schemes to “locked-in” New Zealand superannuation schemes without the imposition of additional New Zealand tax. A “locked-in” scheme is a scheme whose members do not generally have access to their funds in the scheme until retirement age. Otherwise, as identified by the issues paper, there is the potential for individuals to have a liability for tax for such a transfer, in circumstances where they do not have access to the funds for the purposes of satisfying that liability. Mr Brown and Mr Neill noted that there is also a risk that certain taxpayers will be unfairly disadvantaged under the current proposals. Some taxpayers will have retained their interests in foreign superannuation schemes and have not transferred funds to New Zealand due to the uncertain state of the current law. They may now be in a worse position under the proposals than taxpayers who have taken a less prudent approach and who have transferred funds back to New Zealand between 1 January 2000 and 31 March 2011. This is because the former will not be entitled to the flat 15% inclusion rate under the effective amnesty for past withdrawals. Submissions on the proposals closed on 3 September. The tax bill providing for the law change is expected to be
Copyright and public domain not at war It has become conventional to see copyright and the public domain as the opposite of each other, or even as locked in battle. “But the position is more complex,” Victoria University Law Professor Graeme Austin said during his inaugural professorial lecture on 25 September. “Broadly speaking, copyright is the body of law that concerns the privatisation of creativity – whether and to what extent original creative expression can be the subject of property rights. “The public domain is comprised of materials of culture that are not owned (ideas, facts, cultural memes, raw data). These are free for everyone to use. The public domain can also include copyright defences, such as fair dealing, or, in the United States, fair use. “If these uses do not need to be compensated, technology entrepreneurs involved in the distribution platform business do not need to factor copyright licensing into their bottom line. But, of course, some see this as co-option of others’ property for entrepreneurial seed capital.” It can often be unhelpful, Professor Austin said, to depict copyright and the public domain in opposition to each other. “It’s too simple to say: if copyright introduced later this year or in the middle of next year. In the meantime, it is important that anyone advising individuals in connection with a foreign superannuation scheme interest is aware of the proposals, particularly given the proposal that the new tax treatment takes effect retrospectively, and the deadline for taking advantage of the proposed amnesty for certain past distributions. * Brendan Brown specialises in corporate and international taxation. He has represented clients in some of New Zealand’s most significant commercial transactions. Brendan has been a partner with Russell McVeagh since 2003. Greg Neill is a senior associate in Russell McVeagh’s tax group. He specialises in structured finance, derivatives, financial products, business acquisitions and general corporate tax.
grows, the public domain shrinks,” he argued. Copyright grows the public domain in many ways. Most obviously, copyright protected works are consigned to the public domain once their terms eventually expire.
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Broadly speaking, copyright is the body of law that concerns the privatisation of creativity – whether and to what extent original creative expression can be the subject of property rights.
”
GRAEME AUSTIN But this is also true in more subtle ways. Because copyright protects only expression, not ideas, copyright both encourages the production of new works while consigning even quite original ideas developed by the author into the public domain for others to use. This occurs most clearly with functional works. In a number of jurisdictions, we are seeing the development of sophisticated rules that encourage creativity while keeping in the public domain key parts of the works – computer program architecture that is dictated by function, for example. But it also happens with highly expressive works. Professor Austin discussed a leading United States example involving a hit Broadway play, the underlying idea in which was free for a movie company to use without
compensating the author. “It’s too simple, then, to say that copyright is constantly invading the territory of the public domain. That can happen. But there are also ways that copyright increases the volume of material that is free for all to use.” Professor Austin said he hopes that enhancing understanding of the somewhat more nuanced relationship between copyright and the public domain might take some of the heat out of current controversies in the area. The talk also drew on Professor Austin’s work on the relationship between human rights and intellectual property. He is the author of a leading text in the area, Human Rights and Intellectual Property: Mapping the Global Interface (Cambridge, 2011). In that book, Professor Austin and his co-author Larry Helfer from Duke University Law School explore the important demands that human rights laws make on intellectual property. “Human rights focus our attention on important areas of life: the right to food, to an adequate standard of health, indigenous peoples’ rights, and so on. These are things with which any decent intellectual property system, any decent society, must contend.” The human rights system also protects the “moral and material interests” authors have in their works, Professor Austin said. This includes the right of authors to participate in functioning markets for their original expressive material – assuming, of course, that they can find a paying public. It’s also consistent with the recognition of the right of property in many human rights instruments. Professor Austin rejoined the law faculty of Victoria University in 2010 taking up the newly-created Chair in Private Law, after serving for nearly 10 years as a tenured professor at the University of Arizona. His scholarship has twice been cited with approval by the United States Supreme Court and he is an elected member of the American Law Institute. Professor Austin is on the editorial boards of the Journal of the Copyright Society of the USA and the Australian Media and Arts Law Review. He was also recently appointed to the New Zealand Copyright Tribunal. LT
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BRANCH NEWS The soloists are well-known soprano Deborah Wai Kapohe, baritone Jared Holt and tenor John Beaglehole. Kenneth Young will conduct Counsel in Concert. Donations tagged to this event can be made online at www.fundraiseonline. co.nz/counselinconcert/.
Counsel in Concert 2012. Photograph Soul Focus Photography, background image www.freeimageslive.co.uk/free_stock_image/airshowexplosionjpg.
WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869
Counsel in Concert: At the Movies A massed choir and orchestra of lawyers will perform a programme of music from the movies at St Andrew’s on the Terrace, Wellington, on 23 October. This is the fourth year Counsel in Concert has presented performances on this scale. Due to the large audiences at concerts in previous years, there will be two performances (12:15 and 5:30pm). Entry is by donation. Proceeds from the concerts will go to the Child Cancer Foundation. Counsel in Concert has grown out of the Crown Law music group and is based at Crown Law. The choir has been rehearsing weekly since July and includes around 50 lawyers from throughout the Wellington region as well as law staff from Crown Law. The orchestra includes many talented lawyer musicians and is augmented by members of the New Zealand Symphony Orchestra and Vector Wellington Orchestra. The concert consists of music written specifically for movies, combined with favourite classical music featured in movie sound tracks. The programme also features a new composition for choir and orchestra written specially for the event by lawyer/composer Aaron Lloydd (second from right in the picture). Aaron has a masters degree in composition from Victoria University, as well as 20 years’ experience playing punk rock and bass trombone. The new work is titled The Fundamental Obligations of Lawyers. The text is drawn directly from s4 of the Lawyers and Conveyancers Act 2006. Aaron says that in composing the work he used simple harmonic and rhythmic figures in a way that matches the structure of the provision. He says: “Hopefully the simplicity works for the audience. It should be quite basic and direct ... or, in other words, fundamental.”
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Three women who featured at Wellington’s Wine, Women and Song evening (from left) Helen Cull QC, Amanda Barclay and Margaret Doucas.
Wine, women and song Marking 119 years to the day since women got the vote in New Zealand, the Wellington branch celebrated women’s suffrage day with a special event on 19 September. The event posed the question: “Since then, has it all been wine, women and song for women in their professions and careers?” The “wine” dimension of the question came thanks to the generosity of sponsorship by Giesen Wines. The “women” dimension came with Helen Cull QC and Margaret Doucas talking about their personal career journeys and experiences. The “song” dimension was provided by legal songstress Amanda Barclay. A maximum for the venue of just over 40 people attended the evening. Tickets cost $25 for Law Society members and associate members and $35 for non-members, with $20 of each ticket sale being donated to Women’s Refuge NZ. Following the evening a donation of $900 was made. The Wellington branch’s Sports and Collegiality Committee organised the event.
Problems and pitfalls A mini seminar entitled The Land Transport Act – Practical ideas & pitfalls attracted 45 lawyers on 20 September. Noel Sainsbury, convenor of the Wellington branch Criminal Law Committee, Mark Wilton, Principal Prosecutor, Police Prosecution Service and Senior Sergeant Colin McGillivray, District Prosecution Manager, shared insights and practical ideas and discussed pitfalls in working with the Land Transport Act. The branch’s Criminal Law Committee organised the mini seminar.
BR ANCH NEWS Significant changes have been proposed by the Government to the way that the Family Court operates. This session was led by Antony Mahon, a current FLS Executive member and former FLS chair. He gave attendees the chance to learn more about the changes and to discuss their concerns.
Nigel Kelly (far left) addressing attendees at the AYL whisky tasting evening.
AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869
AYL whisky tasting Around 30 Auckland young lawyers attended the Bell Gully AYL Whisky Tasting Evening on 13 September.
At the Nelson Suffrage Day luncheon, speaker Jenny Leith (left) and colleague Julie O’Connor (another woman with a great story to tell. The branch says it is saving her for next year).
Bell Gully lent their bar for the occasion and provided food for attendees. The Auckland Young Lawyers Committee, in conjunction with Bell Gully, organised the evening to give whisky connoisseurs the opportunity to develop their tastes for single malts while mixing and mingling with fellow young lawyers. Nigel Kelly from Sam Snead’s House of Whiskey, a specialist whisky shop in the CBD, hosted the event. Guests tasted different whiskies from around the world including those from Ardberg, Glemorangie and Glenlivet distilleries while learning about how whisky is made and the processes involved to develop each whisky’s unique flavour.
Making the most of your legal career
NELSON NEW ZEALAND LAW SOCIETY NZLS EST 1869
Suffrage Day luncheon A luncheon to mark Suffrage Day attracted 30 women lawyers from the Nelson region on 19 September. Jenny Leith, a senior practitioner with many years of diverse experience, spoke of her journey both in the law and beyond commencing with the birth of her mother – on suffrage day in 1934. She suffered from polio as a young woman and went on to raise a family notwithstanding severe physical disability.
The event was held at Chapman Tripp on 26 September.
Jenny’s career includes 17 years in general legal practice, 26 years as a Tenancy Adjudicator, and 22 years as a mediation and arbitration practitioner (cumulative). In addition, she has had 35 years in a farming partnership with her husband. Her life has been and continues to be within the rural community in which she lives and is actively involved.
The guest speakers were Dermot Ross, a partner in Chapman Tripp’s banking and finance team and Rebecca Rose, a solicitor in the litigation team.
Jenny’s message was to take advantage of any and all opportunities that present themselves, and not to be afraid to step outside the square.
Around 100 Auckland young lawyers attended the Chapman Tripp AYL Spring Lunchtime Seminar Series address – Making the Most of Your Legal Career … and the Relationships that Count!
Both encouraged lawyers to take up opportunities that came along in the course of their careers, whether educational, the chance to broaden fields of practice, or the chance to work in different types of organisations and roles. They also shared tips on how to build good professional relationships, maintain work/life balance, get involved in “socially useful” work and discover the areas and types of law that individuals were most interested in and which would sustain a long-term career.
Family Court changes Around 50 family lawyers attended the Family Law Section (FLS) session on proposed changes to the Family Court at the Auckland branch on 19 September.
SOUTHLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869
Gore meet the practitioners evening The Southland branch Council met in Gore on 19 September, followed by its traditional annual meeting with Gore practitioners. More than 90% of the Gore lawyers attended the drinks and nibbles, held at Croydon Lodge at 5pm. LT
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OVERSEAS Award for service to international legal community Dr Phillip Tahmindjis, Director of the International Bar Association’s Human Rights Institute, was awarded the Member of the Order of Australia on 21 September. The award was made for meritorious service to the international legal community and for his steadfast contributions to, and advocacy relating to the promotion and protection of human rights globally. Described by the Australian Government as “the pre-eminent way Australians recognise the achievements and service of their fellow citizens”, the Member of the Order of Australia is awarded twice annually to recognise outstanding achievement and service. Admitted in New South Wales in 1978, Dr Tahmindjis is the former Head of the QUT Law School and a former member of the Queensland Anti-Discrimination Tribunal. His previous positions include being President of the Queensland branch of Amnesty International, trustee of the Queensland AIDS Council, VicePresident of the International Lesbian and Gay Lawyers Association, and trustee of the Southern Africa Litigation Centre. Michael Kirby, former Justice of the High Court of Australia, nominated Dr Tahmindjis, describing him as an outstanding human rights lawyer. “As an Australian, I am proud of his
contributions to the IBA and to the cause of human rights throughout the world. He is also courageous in tackling challenges in some of the hotspots … is innovative, imaginative and inspiring. He shows that, to be a successful human rights lawyer you need a good brain, a big heart, courage and steely determination.”
Recognising indigenous peoples The Law Council of Australia has welcomed the Government’s announcement that it will introduce an Act of Recognition in Parliament to acknowledge Aboriginal and Torres Strait Islander peoples.
Judge Thornton outlined the changes to the role in a 10-point plan based on the Coroners and Justice Act 2009, which is due to come into force from June 2013.
On road to recovery The rule of law in Malawi is “on the road to recovery” but some important issues still need to be remedied for the country to fully restore the rule of law. This is stated in the International Bar Association’s Human Rights Institute (IBAHRI) investigative report published in September.
The postponement of a referendum on Constitutional recognition of Aboriginal and Torres Strait Islander peoples was disappointing, the council’s President Ms Catherine Gale said in a statement on 21 September.
An IBAHRI fact-finding delegation travelled to Malawi in January 2012 to research serious concerns regarding violations of the rule of law, particularly the separation of powers, the executive’s disregard for the constitution and lack of observance for basic human rights.
She called for bipartisan commitment to hold a referendum within the next term of Parliament.
Coroners must be lawyers Only lawyers will be appointed as coroners in England and Wales from next June, the first holder of the new post of chief coroner for England and Wales announced in his first public speech. Judge Peter Thornton QC told the annual conference of coroners on 21 September that new appointments would be for five years, with coroners
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LAWTALK 805 / 12 OCTOBER 2012
The provisions do not apply to existing coroners, though a doctor serving as assistant coroner would need the necessary legal qualification to step up a level to senior or deputy coroner.
However the council says a “firm, bipartisan commitment to hold a referendum to amend the Constitution should remain a priority”.
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retiring at 70.
Prosecutors’ fast track The Victoria Police Prosecutors pathway into an LLB was launched at Melbourne-based Victoria University on 7 September. The pathway specifically recognises the skill, professional attributes and study experience of existing Police prosecutors who will receive credit for their study, training and experience as a prosecutor and will be able to pathway directly into a Victoria University law degree.
CHRISTINE WILSON Advertising Co-ordinator christine.wilson@lawsociety.org.nz 04 463 2905
NEW ZEALAND
COUNCIL OF LEGAL EDUCATION PROFESSIONAL LEGAL STUDIES COURSE REVIEW The Council has engaged the Right Honourable Sir Andrew Tipping to conduct a Review of the Professionals Course. The Reviewer invites you to make written submissions on any aspect of the Review. Those submissions should reach Rosemary Gordon, the Chief Executive of the New Zealand Council of Legal Education, no later than 30 November 2012, in electronic form. The email address is operations@nzcle.org.nz. If you are unable to email your submission in electronic form please post your submission to the Chief Executive at PO Box 5671, Lambton Quay, Wellington 6145. The Terms of Reference are below:
UPDATED TERMS OF REFERENCE The review will – (i)
Examine the 11 skills listed in the Professional Legal Studies Course and Assessment Standards Regulations 2002 to ascertain whether those skills are sufficient for candidates for admission as barristers and solicitors, or whether there are further or different skills that should be added to the list in the Regulations, and if so to identify these skills;
(ii)
Examine whether there should be more transactional content to the course so that while skills continue to be an important cornerstone, the skills are extensively developed and demonstrated in specific practice areas rather than over a range of common transactions;
(iii)
Examine the extent to which other types of teaching and learning, for example lectures and seminars, should be integrated with a skills-based approach, and the extent to which other types of teaching and learning should be recognised in the Regulations;
(iv)
Examine whether the Professionals course should be expected to deliver any substantive content, particularly in those areas which students may not have studied at law school. Examples might include professional conduct, civil procedure, evidence and business structures;
(v)
Examine whether trainees are developing skills outside the Professionals Course, and the extent to which these may overlap with skills prescribed by the Regulations;
(vi)
Identify the attributes and level of professional competence which a candidate for admission would be expected to possess, and analyse whether the current Professionals Course delivers these outcomes;
(vii)
Examine the content and method of delivery of the current Professionals Course to see whether the content is sufficiently challenging for contemporary lawyering, and whether, particularly given the move to on-line teaching, it is delivering the necessary outcomes;
(viii)
Advise whether other Commonwealth jurisdictions’ approaches to professional legal training should be considered, in particular Australia, and as appropriate, canvass specific systems which could be used to supplement current practical legal training, such as a series of articles, or training contact; and
(ix)
Any other matters related to the foregoing that the reviewer, in his discretion considers should be addressed. For clarity, the ownership of any providers and the internal management or structure of any provider is not within the terms of the review.
Chief Executive 25 September 2012 LAWTALK 805 / 12 OCTOBER 2012
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THE BOOKSHELF NZ CHARITY & LEGAL GAZETTE (37th EDITION 2012) Edited by Michael Woolf This well-established annual provides contact details and information on the activities of charitable and non-profit organisations, with the intention of assisting in decision-making on appropriate bequests and donations. This edition will be distributed free to all members of the Law Society’s Family Law Section and Property Law Section with the last issue for 2012 of the Sections’ quarterly magazines. (The Production House Ltd, September 2012, ISSN 1179-2930, paperback, $21.70 (GST and p&h incl)). CAMPBELL ON CAVEATS By Neil Campbell A succinct guidebook on the law relating to caveats, this is a hardcopy version of Chapter 10 of the looseleaf work Hinde McMorland & Sim Land Law in New Zealand. The author, formerly Associate Professor of Law at Auckland University and now a barrister, has updated all material and expanded the content on practice and procedure. The law is stated as at 3 July 2012. (LexisNexis NZ Ltd, September 2012, 978-1-927183-42-7, 131 pages, paperback, $92.00 (GST incl, p&h excl)). AFTER DEATH – CLAIMS AGAINST ESTATES By Greg Kelly and Jacinda Rennie This is the material prepared for a webinar delivered by NZLS CLE Ltd. The book takes a very practical approach to the legal advice which can be given to claimants and
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beneficiaries in response to the various claims which can be made against estates. The roles of legal advisors for the various parties are also considered. (NZLS CLE Ltd, August 2012, 58 pages, paperback, $40.00 (GST incl, p&h excl)). CONSULTATION REQUIREMENTS By Lisa Hansen The legal requirements of consultation are outlined in this book prepared for a NZLS CLE Ltd webinar. Wellington barrister Lisa Hansen offers some practical suggestions as to how consultation can be more effectively carried out. As well as the general theory and principles, the general requirements of consultation under the Local Government Act 2002 and Employment Relations Act 2000 are examined. (NZLS CLE Ltd, September 2012, 46 pages, paperback, $45.00 (GST incl, p&h excl)). GST – A PRACTICAL GUIDE (9TH EDITION) By Alastair McKenzie Reviewed by Casey Plunket* The preface to this book observes that while GST began life as a straightforward legislative regime, after 27 years the legislation is now swollen by special rules and other amendments. The Act, in other words, has passed from a svelte youth into a somewhat distended and unshapely middle age. Perhaps inevitably, for a book that shadows the legislation and its manifold departmental and curial glosses so closely, the same could be said for the 9th edition of this title. At 420 pages of text, it is 50 pages, or more than 10%, longer than the 8th edition, published three years earlier. As its name announces, Mr McKenzie’s book is aimed squarely at the practitioner. Despite its first 200
pages forming a section headed “Theory”, the book contains very little theoretical or conceptual content, and only occasionally does it explain the reasons for any particular legislative development. Things simply “are”. Chapter 1 launches directly into the requirements for GST registration and charging GST, chapter 2 deals with zero rating, and on it goes. This approach provides perhaps the book’s chief strength. There can be few statements by either the IRD, the courts or Parliament on the application of GST law which this book does not record, nearly always in an accurate and digestible form, and with a reference to the source material. At times, the level of detail is minute. We are told, for instance, that in response to the Rena disaster, the Commissioner gave a special extension, allowing zero rating to continue to apply to the supply of goods whose physical departure from New Zealand had been delayed by the Astrolabe Reef beyond 28 days from the time of their supply. There is even a website reference to the extension. The breadth of material covered creates a significant indexing challenge, which does not always appear to have been met. For instance, although there are many very useful references to the GST treatment of horse breeding, racing and dealing, there does not seem to be an entry for these nuggets in the index. Nor is the Commissioner’s flexible approach to the Rena disaster locatable from the index. Another gripe is that the index references not pages but paragraph numbers. With “paragraphs” as long as 12 pages, this is not as helpful as it might be. These kinds of issues could be addressed by buying the e-book rather than the paperback. The last two chapters are somewhat differently organised, dealing with particular transactions and issues. The principal addition in the 9th edition is an extended treatment of the new apportionment/adjustment rules. The focus on the practical seems at times to result in a less than assured
explanation of the law. The first sentence of chapter one is an example. When it states “As a general rule, GST can only be imposed on sales and other ‘supplies’ made by a registered person; unregistered persons usually cannot charge the tax” it creates a sense that the imposition of GST is something which requires some action on the part of the supplier. Of course, the correct position is that the imposition of GST on a supply is unavoidable. It is simply not possible for GST not to be charged on a supply legally subject to it, whatever the parties may say, agree or do. A similar critique could be made of the explanation of the new zero rating rule for supplies including land between registered persons. This is described in the introduction to chapter 2 as a zero rating of supplies of land, whereas the rule, in fact, may zero rate supplies where only a minor component of what is supplied is land. The book betrays its layered history with some abrupt changes of tone in places. While most of it is written in the impersonal CCH house style, in at least some points where it becomes more conjectural, it shifts to an expression of “my view”. The section on whether conditional or unconditional contracts are “invoices” for GST purposes could usefully be re-written. It is some time ago that the IRD’s view fell into line with that of the author. More generally, the book could also do with a general editorial tightening that would match its tone with its approach. “Hence” is a favourite stylistic tic, along with padding such as “It is to be noted that ...” The extensive use of the passive voice also makes the English far from plain and practical. Overall, this is a good spend for someone who wants pretty much all of the GST law in a compact form. It is three years since the last edition, so there have been some developments in the law which justify a new purchase. However, if you want to make the best use of what it has to offer, an e-version might be a good idea. GST – A PRACTICAL GUIDE (9TH EDITION) by Alastair McKenzie, CCH New Zealand Ltd, May 2012, 978-0864759-35-1, 473 pages, $110 (GST and p&h excl). Available in paperback and e-book.
*Casey Plunket is a partner with Chapman Tripp, Auckland, and convenor of the Law Society’s Taxation Committee.
REPUTATION MATTERS: A PRACTICAL GUIDE TO MANAGING REPUTATION RISK By Tracey Walker Reviewed by Steven Price* This is a book that lives up to its subtitle. It offers a succinct and useful account of the various laws affecting corporate reputation management in New Zealand, together with some savvy guidance on how to navigate them. It is explicitly aimed at businesses and other corporate entities seeking to manage their reputations, particularly in times of crisis. It traverses most of the territory of a standard media law text: defamation, privacy, confidentiality, copyright, contempt, and the standards regimes governing broadcast and print media. Then it goes further, examining things of particular corporate interest such as the Fair Trading Act, comparative advertising, trademark law, and corporate disclosure obligations. It also includes a chapter on the challenges of dealing with new media – and particularly the unruly hydra that is social media. The descriptions of the laws throughout give enough information to explain their gist, without getting bogged down in extraneous legal detail. But the brevity doesn’t come at the expense of accuracy. And Tracey Walker keeps an experienced eye on the practical implications: remember to write to broadcasters and require them to retain their field tapes, since these often provide the best evidence of unfairness; be sure to negotiate the details of timing, context and prominence of a correction when challenging online reporting; be aware that hearings in chambers can be reported; bring defamation actions in the name of an officer rather than the corporate body to avoid having to prove likely financial loss. The chapter on new media strikes me as particularly strong. The author is alive to the online issues being thrown up by disgruntled customers with blogs, intemperate posts and emails by staff, data insecurity, and casual intellectual property breaches.
very useful. In fact, I was a little disappointed that this approach wasn’t expanded to the other chapters. This text would readily lend itself to sections on how to leverage defamation and media ethical regulations when dealing with a reporter preparing a breaking story, and some basic tips on how to write press releases and corporate material so as to minimise the possibility of defamation lawsuits. While I’m wearing my counsel of perfection hat, I would also have liked to have seen sections on trespass (what rights you have when reporters turn up in your lobby, and when you might be able to get an injunction to prevent the publication of material obtained during a trespass); the Domain Name Commission (how you can use its dispute resolution service to tackle cyber-squatting); and how the Privacy Act threshold works (what it takes to show that an infringement of privacy amounts to an actionable “interference”). Finally, I don’t quite share Tracey Walker’s faith in the adequacy of Google’s and Facebook’s complaints reporting tools, and I note that the Law Commission has found them patchy. But certainly, they should be a first port of call, and she is certainly right that any lawsuit against Google is likely to be met with powerful and assiduous defences, mounted most recently (and successfully) by Tracey Walker herself: A v Google NZ Ltd, HC Auckland, 12 September 2012, Associate Judge Abbott, CIV 2011-404-002780. This text is designed for the public relations and legal teams working for organisations with sizeable reputations and budgets to match. That’s not to say it is not of use to individuals and smaller organisations, but it is not really addressed to them. It will sit comfortably on the shelves of inhouse counsel, PR practitioners, and corporate executives and on lawyers’ shelves as a useful supplement to the leading media law texts. REPUTATION MATTERS: A PRACTICAL GUIDE TO MANAGING REPUTATION RISK by Tracey Walker, CCH New Zealand Ltd, August 2012, 978-0-864759-91-7, 234 pages, paperback, $110 (GST and p&h excl).
*Steven Price is a Wellington barrister specialising in media law. His website is www.medialawjournal.co.nz.
The section on dealing with the Commerce Commission is also
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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 skills in Wellington an intensive, small-group workshop which will take you through a summary judgement Auckland claim in the High Court to demonstrate how to handle a file from beginning to end, how Christchurch 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.
Evidence Act for Civil Litigators
Andrew Beck
This seminar will take a close look at a number of thorny issues raised in recent cases, including the ongoing concern in respect of the relationship between the common law and the Evidence Act - in particular, whether the common law continues in relation to events that occurred before the Act; the extent of without prejudice privilege; the scope of other privileges and their exceptions; the role of experts, and the limits of expert evidence; and the admissibility of briefs and what to do with inadmissible evidence.
CIVIL 29-30 Oct 12-13 Nov (full) 19-20 Nov
Dunedin Christchurch Wellington Hamilton Auckland
5 Nov 6 Nov 7 Nov 12 Nov 13 Nov
Dunedin Christchurch Wellington Hamilton Auckland
12 Nov 13 Nov 14 Nov 19 Nov 20 Nov
COMMERICAL/COMPANY Practical Enforcement Bob Hollyman of Judgments
Working through several common scenarios, this practical seminar will consider stepby-step the various enforcement mechanisms available to creditors once they have a judgment in hand, including: identifying the assets, the nature of the different options, assessing their merits and when to apply, pitfalls and problems, difficulties that arise, and how the court officers and bailiffs work. Webinar for smaller centres
14 Nov
Webinar
CRIMINAL Duty Solicitor Training Programme Duty solicitors are critical to the smooth running of a District Court list. Here is a way to Manukau gain more of the knowledge and skills you need to join this important group. You will: Whangarei • 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)
Intro
Asssessment
Practice Court
21 Sep 21 Sep
26 Oct 26 Oct (in Man)
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 high Auckland 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 Legal Aid Disbursement Policy
Michele McCreadie Patricia McNeill Sarcha Keith
A new disbursements policy will come into force on 5 November. The policy applies to Your computer 16 Oct applications for legal aid received on or after 5 November 2012. This one hour webinar Webinar explains the changes to existing policy, how the new policy will be applied, the new web based policy format, and improvements to application, amendment and invoicing forms. There is no cost for this webinar as it is funded by Legal Aid Services. However you must register.
Care and Protection Orders and CYFS
Dr Nicola Atwool Tracey Gunn
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. Webinar for smaller centres
Dunedin Christchurch Wellington Auckland Webinar
17 Oct 18 Oct 25 Oct 26 Oct 25 Oct
Youth Justice Practice Judge Becroft Issues - an update Aaron Lloydd Fergus More
A continual striving for improvement, in order better to serve young people, their Your computer 17 Oct families and the general public, is a hallmark of the Youth Justice sector in New Webinar Zealand. “Fresh Start”, the shorthand for the changes introduced by amending legislation on 1 October 2010, was one such quest for improvement. Now is the time to find out whether the availability of longer orders, new orders and extending the Youth Court jurisdiction to 12 and 13 year olds has truly been a fresh start.
Understanding Mediation – mediation for lawyers Part A
see listing under General
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.
Online registration and payment can be made at www.lawyerseducation.co.nz
Programme
Presenters
Content
Where
When
PROPERTY Gifting – 12 months on Chris Kelly Greg Kelly
Gift duty was abolished as of 1 October 2011, anticipating a major change in trust practice Your computer 6 Nov and rendering redundant years of accumulated precedents and processes. Has the new Webinar order proved as beneficial as hoped? The removal of gift duty has resulted in greater focus on and a tightening of the rules around rest home subsidies, insolvency and avoidance of relationship property rights. These developments are discussed in detail.
Trusts for Property Lawyers
A practical seminar focussing on what property lawyers need to know about trusts and the use of trusts. To include; why a trust? – their various uses – their set up, drafting, and legislative requirements, trust busting – inherent weaknesses – what to look for – how to make trusts stronger – the bundle of rights as it affects property lawyers.
Andrew Watkins Simon Weil
Webinar for smaller centres
Dunedin Christchurch Webinar Wellington Hamilton Auckland Webinar
19 Nov 20 Nov 21 Nov 26 Nov 27 Nov 21 Nov
GENERAL Logic for Lawyers
Prof Douglas Lind
Most lawyers’ logical intuitions are strong enough to permit smooth navigation most of Wellington the time through webs of complex legal arguments without error. Still, unfamiliarity with Auckland 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.
Risk Management for Boards
John Waller Michael Webb
All business is risk – it’s how much and how it is managed that is the issue. Based on Your computer 24 Oct the Risk Management session from the successful Corporate Governance Intensive, Webinar this webinar will focus on the risk issues facing the boards for smaller and unlisted companies as well as large corporates and financial institutions.
Anti-Money Laundering and Countering Financing of Terrorism Act 2009
Lloyd Kavanagh
The AML/CFT Act 2009 comes fully into force on 30 June 2013. The Act is one of the Your computer 31 Oct most far reaching pieces of reform to hit the financial sector in recent years. This webinar Webinar will alert you to how the new AML/CFT regime could impact on your organisation, your clients, or your practice.
Stepping Up foundation for practising on own account
Director: John Mackintosh
All lawyers wishing to practise on their own account whether alone, in partnership, in an Wellington incorporated practice or as a barrister, will be required to complete this course. (Note: From 1 October 2012 all lawyers applying to be barristers sole will be required to complete Stepping Up). Developed with the support of the New Zealand Law Foundation.
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, Auckland attend the assessment day and pass all assessments. Make sure you register in Christchurch time to do the preparatory work before the assessment day as listed on the right.
14 Nov 21 Nov
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 Webinar 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 (full) 7-8 Nov
Understanding Mediation – mediation for lawyers Part A
Virginia Goldblatt Geoff Sharp
Mediation knowledge and skills are an increasingly important adjunct to legal practice. Wellington 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
Lloyd Austin
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.
Writing Persuasive Opinions
Judge John Adams Simon Cunliffe Margot Schwass
Successful opinions are persuasive. Persuasive opinions are clear, succinct, jargon- Auckland 2 free, cogently structured, legally acute and tailored to the needs of 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.
Practical Enforcement of Judgments
Auckland Hamilton Wellington Christchurch
23 Oct 25 Oct
13-14 Nov 19-20 Nov 26-27 Nov 28-29 Nov 12 Dec
see listing under Commerical/Company
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 Strike off for overcharging, obstruction and not paying for services Auckland lawyer Barry Hart has been struck off after the New Zealand Lawyers and Conveyancers Tribunal found him guilty of three charges of professional misconduct. Following the tribunal’s penalty decision, in Auckland Standards Committee No 1 v Hart [2012] NZLCDT 26, Mr Hart has appealed the decision. That means he is suspended pending the outcome of the appeal. Mr Hart applied to the High Court for a stay of his suspension, but Justice Graham Lang dismissed this in Hart v Auckland Standards Committee 1 [2012] NZHC 2496. “The need to protect the public is paramount,” Justice Lang said in his 26 September judgment. “This requires Mr Hart to remain suspended pending determination of his appeals.” The first of the charges Mr Hart was found guilty of arose from his engagement of, and subsequent failure to pay, a private investigator who had provided services in connection with a legally aided client facing criminal charges. The second charge was that Mr Hart had obstructed firstly the Auckland District Law Society Complaints Committee 2 and then an Auckland standards committee by refusing to produce his file relating to a former client after the committee required him to. The third charge was that Mr Hart had grossly overcharged a client he had been representing on serious criminal charges. Mr Hart was found guilty of these three charges after a hearing by the tribunal on 16 and 17 July in Auckland Standards Committee No 1 v Hart [2012] NZLCDT 20. In its penalty decision, the tribunal said
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it considered the three most salient features of the matter to be: [a] a combination of the three types of professional misconduct found; [b] the practitioner’s previous lengthy disciplinary history; and [c] the lack of remorse shown by the practitioner. “We consider that the total overview of Mr Hart’s conduct and of his conduct of the proceedings [leads] us to the inevitable view that the public require protection from him. “We consider that the evidence in these proceedings has disclosed a lack of integrity on the part of this practitioner,” the tribunal said. “We do find it dishonest for Mr Hart to have been paid by the Legal Services Agency and then not pay the expert.” The tribunal said it accepted that striking off, particularly in a practitioner of such seniority, was a last resort response. It grappled with whether a significant period of suspension would suffice. “Had Mr Hart approached the various investigations in these proceedings differently, and had there been a less serious recent disciplinary history, suspension would have been the option adopted. But the arrogant and derisory manner in which he has approached any complaint – right up to the penalty hearing where he attempted to defend his failure to produce yet another file for inspection following a complaint – has meant that we can have no confidence in either his rehabilitation or protection of the public by ensuring there is no risk of reoffending.” Mr Hart had demonstrated “not only a pattern of obstruction but also a lack of remorse and inability to change”, the tribunal said. “Mr Hart’s attitude to a distressed and vulnerable family was exploitative and that there was a lack of integrity in his whole approach to the family, demanding payment of large sums of money without clear communication as to how this was to be applied, and what work would be undertaken.”
(In its decision on the charges, the tribunal said it had accepted evidence that the work Mr Hart had charged $35,000 for could have been “comfortably carried out even at Mr Hart’s very high hourly rate for between $15,000 [and] $16,000”.) As well as being struck off, Mr Hart was ordered to pay 85% of the standards committee’s costs of $116,429, and refund the Law Society the full $45,000 tribunal costs. The tribunal also made an order by consent that Mr Hart pay $20,000 to the family which had complained about overcharging. LT
Assisting both sides contains dangers A complaint against an Auckland lawyer, C, “illustrated the dangers for practitioners in assisting both sides to a transaction, even when, on the face of it, it would seem to be a simple matter”, a Lawyers Standards Committee said. Despite deciding to take no further action on the complaint, the committee made an order to publish the facts of its determination for its “educative value … to the profession”.
The complaint The two complainants bought a business from C’s client, whom they also leased the business premises from. Before signing, the complainants said they had asked C about the running costs they would have to pay if they bought the business and that C and his client had failed to disclose body corporate charges of $935.80 a month. They said C and his client answered that they only had to pay rent, council rates, marketing, power and water. The complainants said that if they had known they also had to pay body corporate charges, they would not have bought the business because the income was low and it would not be worth it.
The response C said the parties concluded their own agreement for sale and purchase of the
L AW YERS COMPL AINTS SERVICE business and he had nothing to do with this aspect of the transaction. Subsequently, his client contacted him and asked him whether he could prepare a deed of lease. The client explained that the tenants did not have a lawyer and, in fact, did not want to engage a lawyer. They were happy to come to the office to sign the lease. The client explained that all the terms of the lease had been agreed and that C would just need to document this. C said that at the meeting with the complainants, the deed of lease was presented. After a précis of the terms, the lease was signed. The body corporate charges were not specifically addressed in his discussion of the terms of the deed of lease. The complainants, he said, did not ask any questions, nor did they indicate that they were unclear about any of the terms in the lease. C provided a statement from his client. It said that during the discussions for the business purchase he had given them a hand written paper with outgoing charges of the mall (written by the mall manager) which was to be paid on top of the $2,000 rent.
Complainants’ view The complainants said that when they went to sign the lease they were with C for just 15 minutes. In those 15 minutes they asked him a question about what payments they had to make and C explained all 15 pages of the lease in those 15 minutes. They say C told them about the rent and other matters but nothing about the body corporate charges.
What the committee said The standards committee said that on the evidence before it, it was unable to reconcile the conflict about the body corporate charges. “It may be that recollections have modified with the benefit of hindsight or that there were miscommunications or misunderstandings between the parties. However, the committee was of the view that there had been no deliberate misleading on the part of [C].” The committee then turned to the issue of whether C was providing legal services to the complainants. C stated that he had never acted for the complainants. He did not open a file for them and was not providing legal services to them. In his view, they were effectively self-represented.
At the meeting in his offices, C said he had made it clear to the complainants that they should be seeing their own lawyer in relation to the deed of lease. He said he regretted that he did not get a written waiver of independent advice, as is his normal practice.
The lessons “The committee noted the importance of a lawyer identifying who is their client,” its decision states. “In cases such as this, there is a fine line and care must be taken. “Confusion may arise where the meeting is at the lawyer’s office, the lawyer goes through the terms of a document with a person who is not the original client and the lawyer then invoices that person directly.” (The complainants paid C’s invoice, as the lease provided that the tenant was responsible for the landlord’s solicitor’s reasonable costs in preparing the lease.) “It may have been more prudent for C to refer the complainants away for signing or decline to go through the terms of the lease with them,” the committee said. Furthermore, his invoice for preparing the lease could have been addressed to his client, and then passed on to the complainants. However, the committee found, on balance, that the complainants had wanted to be self-represented and that C was not providing them legal services. The brevity of C’s meeting with the complainants supported this conclusion. On the evidence, the committee said it was persuaded that it was likely C had informed the complainants that they should have their own lawyer. LT
Censured for not undertaking appeal Christchurch lawyer Richard Peters was censured by the Lawyers and Conveyancers Disciplinary Tribunal for failing to undertake an appeal when requested to do so by a client. Mr Peters pleaded guilty to a charge of unsatisfactory conduct in Canterbury Westland Standards Committee v Peters [2012] NZLCDT 18. His client was convicted of sexual offences and sentenced to imprisonment. In an affidavit filed with the tribunal, the client said that following sentencing, he had “made it quite clear [to Mr Peters] that I wanted to appeal”.
Before the complaint was made, the client’s father had been making “considerable effort to have Mr Peters make contact with his son to discuss the appeal, to no avail,” the tribunal said. There was an inference to be drawn that the prospect of the appeal succeeding was limited. “It is not for a lawyer to unilaterally decide the merits of a prospective appeal and decide not to take any steps in the matter because of a preliminary conclusion the lawyer may reach on the merits, without any discussion or advice to the client concerned,” the tribunal said. “It is important that the public has confidence in the profession. The public is entitled to expect a professional response to instructions and requests from clients; ignoring such matters is unsatisfactory.” As well as censuring Mr Peters, the tribunal ordered him to pay standards committee costs of $6,150 and $6,000 costs to the Law Society. LT
High Court orders lawyer to produce documents The High Court has ordered a lawyer, B, to produce time records and files required by the Legal Complaints Review Officer (LCRO) within two weeks or face a suspension hearing. Justice Lowell Goddard made the order in Legal Complaints Review Officer v B [2012] NZHC 1349 following an application by the LCRO.
Complaint and response B had acted for a client defending a resource management prosecution brought in 2007. After the client’s complaint was lodged in April 2010, a Lawyers Standards Committee wrote to B requiring him to provide details of the hours spent on the case and of the relevant hourly rates, supported by any available documentation. The letter also required a summary of all attendances. B did not provide the information. Instead, a barrister acting for B challenged the committee’s jurisdiction. Since the invoices were issued before the Lawyers and Conveyancers Act 2006 (LCA) came into force on 1 August 2008, the barrister said, the committee’s jurisdiction was excluded under s351(1). This prevents complaints
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L AW YERS COMPL AINTS SERVICE being considered about conduct from before that date if a complaint could not have been made under the Law Practitioners Act 1982. In the case of an overcharging complaint, the effect is that there must have been either gross overcharging or dishonest billing practices before a complaint could be considered. The barrister also claimed that jurisdiction was excluded because the invoices were more than two years old (under reg 29(a) of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008).
Cost assessment A costs assessor appointed by the standards committee referred to the
difficulties created by the “paucity of information” from B. The assessor’s report emphasised that the only information available was a letter stating that $193,202 in time had been recorded and that the client had eventually been billed only $112,500 (including GST). The report said the assessor had no reason to doubt this statement of the total time recorded. The assessor also considered the “reasonable fee factors” set out in the current Conduct and Client Care Rules (Rule 9.1) and concluded that the fee had been fair and reasonable.
Standards committee’s decision After considering the assessor’s report, the standards committee dismissed the complaint on 8 March 2011. It found there was sufficient information before
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 ALDERSLADE Anya Murdoch AL-SADOONI Zainab Fadhil Nomas ALWADAANI Mohammed Abdulaziz A ANDERSON Moira Mary Elizabeth ANN Se Ryung ASHTON Rowan Harry BARNES Zoe Margaret (nee PENNEY) BARRY Jacob Vincent BERESFORD Nicholas Stuart BOLTON Emily Rose BOZOVIK Maya BROWN Helen Frances BUDGE Theresa Rosalind CAMPBELL Andrew Johnathon Charles CARTWRIGHT Toby Taylor CHAMONTE Erik Gabriel CHAPMAN Simon James Dominic CHOI Margaret Mun Mun CHOU Shen-Ru COLLIER Leigh Renee COOPER Monica Noleen CORLETT Dana Marie COWLE Emma Elizabeth CROSS Carla Lisle CURRIE Nicholas Grant DALY Siobhan Marie DATT Aman Chandra DIMERY Angela Jane DYMOCK William John Seymour FOURIE Jacques Frederick FUNG Hiu Lam (AKA Pheobe) GE Alice Shuanran GRANT-MACKIE, Tiaki Hana HADLOW Charlotte Naja HALAHOLO Cicilia Christina HARROP Joseph Andrew HICKEY Christopher James
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JOHNSON Manawarangi Laura Isabelle JONES Vanessa Kathryn LAI Han Lynn LAM YANG Jessica Lok Ting LEOTA Leao LEUNG Hin Wah LEWIS Jonathan Robert Stirling LOH Adeline Juan Lin MANGAL Jaynen MAXWELL Juanita Cassandra McDONALD Harriet Robertshawe McGRATH Geoffrey Steven McLELLAN George Joseph MILLS Samuel Raymond MITCHELL Nicole Ann MOLLER Olivia Jane PALLANT Carla May PĀORA-CHAMBERLIN Pani Sinclair PARK Yoonha PARKINS Stacey Victoria PARR Mitchell Thomas PATERSON Geordie William ROBERTSON Carol Ann SARAN LEE Katrin SATHIYANATHAN Ramya SCOLLAY Kristin Ruth SENA Ravindra SENA Mani SEU Samuel SISSONS Michele Alexandra SKELTON Victoria Rose SONGAN Maxine Andrea STANDER Shandre SUTHERLAND Daria Helen TITI Valelia Falaniko THOMAS Laura Anne
it to conclude that the fee charged was not grossly excessive and that the billing had not been dishonest. Under s351, it declined jurisdiction to deal with the complaint.
LCRO review In April 2011, the client applied to the LCRO for a review of the standards committee’s decision, and from August 2011 to March 2012 the LCRO sought unsuccessfully to obtain B’s file and time records so that there could be a hearing. The LCRO had relied on his powers under ss147 and 204(d) of the LCA, but B had again raised the issue of jurisdiction. The LCRO made it clear to B that he saw this persistent failure to comply as a very serious matter amounting to obstruction of the review.
THOMPSON Jacquelyn Alice Stratton THOMPSON Rhys Matthew TURNER James Oliver TUSHINGHAM Mark Henry WALTER Shona Elizabeth WELCH Alexander John WOLFGRAMM Katrina Senikau WONG Caleb WOOLACOTT Rebecca Diane WORKER Simon Neil Robinson XIAO Suki Xuning Canterbury Westland Branch ACKER Claire Jennifer BAILLIE Heidi Louise BOYD Rebecca Jayne KING Hannah Grace LIM TIMOTHY Teng MCDONALD, Heather Anne MILLS Cameron Keith STENT James Benjamin
WIJNVELD Will Tobias (previously CLUTTERBUCK) WYSS Kirstie Jemma Waikato Bay of Plenty Branch CLARKE Stephanie Laura WILLIAMS Te Rangimarie Wellington Branch BROWN Jeremy James Gilbert CHIU Vicky ESPOSITO Svetlana Olegovna IRVING Aaron Desmond KASOULIDES-PAULSON Stella Averil Christina POOLE Abigail Margaret SMITH Lauren Marie TANGAERE Mahinarangi Robin WORSLEY Mark Thomas
Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch BOELL Carolyn Danica MOLLOY Benedict Philip Canterbury Westland Branch AUSTIN Elizabeth Jane COTTRELL Shaun Thomas PIERCE Darren Robert
WOLT Rebecca Marijke Southland Branch LINDSAY Rachel Anne PARKER Jessie Lee Wellington Branch SHEAT Catherine Ruth
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 1 November 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
L AW YERS COMPL AINTS SERVICE The LCRO then applied for High Court orders. His affidavit noted that while the standards committee had not found gross or dishonest overcharging, neither the committee nor the costs assessor had themselves seen the time records or the client file.
High Court decision The issue is whether the High Court should exercise its inherent jurisdiction to compel B to comply with the lawful requests of the LCRO, Justice Goddard said in her decision. “I have already noted that reg 29 … is not applicable to the review in this case. “On the other hand, s351 of the [LCA] is relevant and applicable. It does not, however, become of direct relevance until such time as the necessary documentation is able to be considered and assessed and an assessment made as to whether the conduct complained of was such that proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982. “The starting point for the [LCRO] is to examine all relevant and available evidence, including the documentation sought, and then make that assessment.” In a review of a final determination of a standards committee, the LCRO is empowered to review all aspects or any aspects of the standards committee’s enquiry and of any investigation conducted by or on behalf of the standards committee. Under s204(d) of the LCA, the LCRO may exercise, for the purpose of any enquiry or investigation, all the powers of a standards committee or an investigator. “This necessarily includes the power to require all books, documents, papers, accounts or records in the possession, or under the control, of a practitioner and which are reasonably necessary for the purposes of the enquiry or investigation,” Justice Goddard said. The inherent jurisdiction of the High Court over the conduct of its officers is expressly recognised and preserved by ss268 and 270 of the LCA. Although barristers are not traditional officers of the court, s268 has been deliberately expressed to include both “barristers” and “barristers and solicitors” for the purposes of the LCA. In terms of the “repeated challenge” to jurisdiction, the question of jurisdiction does not and cannot arise until all the evidence has been made available, examined and a fully informed
assessment made as to whether the bill was “grossly excessive” or whether B had engaged in “dishonest billing” practices.
and Client Care Rules). He claimed compensation of $25,000 for legal fees and economic loss.
The standards committee had and the LCRO has jurisdiction to receive and investigate, or conduct a review of the complaint and should not be frustrated in the execution of this duty.
Z acknowledged overall responsibility for conducting the appeal, but claimed to have been entitled to delegate the filing and serving of the appeal notice to the employee. Z submitted that a lawyer cannot be held vicariously liable for another lawyer’s conduct, and that the committee should look separately at Z’s actions and those of the employee. Z said that in this case the conduct to be considered was the delegation to and supervision of the employee.
“A statutorily granted power to request documentation necessarily implies an intention that its production be compellable. “In the absence of a frank power to do so, but in light of the purposes of the [LCA] and the fundamental obligation on B to uphold the rule of law and to facilitate the administration of justice, it is appropriate to exercise the inherent jurisdiction of this court to order production of the documents B has thus far failed to produce. “To so order could not be conferring on an administrative body powers that were not by implication contemplated by the statute,” Justice Goddard said. The court also ordered B to pay indemnity costs and disbursements up to and including the cost of the High Court hearing. LT
Client denied chance to appeal by lawyer’s oversight A barrister, Z, was found guilty of unsatisfactory conduct and ordered to refund more than $7,000 in fees after a client lost an opportunity to appeal as a result of Z failing to serve the appeal on the decision-making tribunal.
Facts complaint The client’s claim to the tribunal had been struck out, and he instructed Z to appeal to the High Court. The appeal was filed with the court within the time limit, but it was realised later that the notice of appeal hadn’t been served on the tribunal as required by the High Court Rules. Z had delegated the task of filing and serving the appeal to an employee, a lawyer who no longer held a practising certificate. The High Court Rules did not allow the client to apply for leave to appeal out of time in this situation, and so the client lost his opportunity to challenge the strike-out decision. He complained to the Law Society that Z had breached the duty to act competently and with reasonable care (Rule 3 of the Conduct
Standards committee decision The Lawyers Standards Committee disagreed with Z’s framing of the issues. It said the issue of complaint was the legal services Z had provided to the client, not the question of delegation and supervision. The committee noted there was no dispute that Z had overlooked the requirement to serve notice on the tribunal. It said Z could not blame the employee for this omission, particularly as the employee did not have a practising certificate and Z had primary responsibility for the conduct of the case. Z had assumed professional responsibility by agreeing to act for the client, and could not delegate that responsibility to employees or staff members. The committee noted also that the tribunal had sent Z a copy of the relevant High Court Rule along with its strike-out decision, and so Z had been reminded of the requirement to serve notice on the tribunal. The committee found that Z had breached the Rule 3 duty to “act competently and in a timely manner consistent with the terms of the retainer and the duty to take reasonable care.” It had been reasonable for the client to have expected that his appeal would be filed in accordance with the High Court Rules, particularly as he was instructing a senior barrister. Because of this breach, Z was found guilty of unsatisfactory conduct under s12(c) of the Lawyers and Conveyancers Act 2006. The committee added that the breach had not been deliberate or reckless (a “wilful or reckless” breach of the Rules may amount to misconduct under s7(1)(a)(ii)).
Compensation The committee agreed with Z that the loss of the chance to appeal had not
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caused the client any actual economic loss, apart from the legal fees charged for the appeal, which Z offered to refund. The committee therefore made no order for compensation, but did order Z to refund the full amount of the fees paid for the appeal, which amounted to $7,247. It also ordered the barrister to pay $1,000 costs to the Law Society.
Use of employee The client had also complained that Z should not have delegated filing and serving the appeal to an employee who did not hold a practising certificate. The standards committee disagreed. It said that a barrister, like any other business person, is entitled to employ any person to provide support in their day-to-day business.
CLASSIFIED ADS
RIGBY WAAKA EDWARDS
Would any lawyer holding a will for the above-named, also known as Rigby Walker Meimei, Rigby Walker Meimei Edwards and Rigby Walker Edwards, late of Te Aroha o Hinemaru Rest Home, 3-5 Priest Road, Rotorua and Central Court Rest Home, home address 9 Grey Street, Frasertown, who died on 2 August 2012 at Rotorua, please contact Clare Toomey at Ross Dowling Marquet Griffin, PO Box 1144, Dunedin, ph 03 477 8046, fax 03 477 6998 email clare.toomey@rossdowling.co.nz.
DONALD DAINTY
LEGAL SERVICES
SOLICITORS Established 1825
Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:-
christine.wilson@lawsociety.org.nz
WILLS
Would any lawyer holding a will for the above-named, late of Whangaparaoa, retired, who died on 2 September 2012, please contact Kaye Procter, North Harbour Law, DX BP60001 or PO Box 104, Orewa 0946, ph 09 427 0550, fax 09 426 3426, email Fearon & Co 56x100 ad_BW.qxd:Layout kaye@nhlaw.co.nz. 1 21/8/09 09:02 Page 1
ENGLISH LAW AGENCY SERVICES
CONTACT CHRISTINE WILSON
THOMAS MARTIN HALE
Would any lawyer holding a will for the above-named, late of 432 Tiki Quarry Road, Coromandel, who died on 18 June 2012, please contact John Battersby Law Limited, PO Box 1328, Rotorua, ph 07 349 2300, fax 07 349 2303, email lorraine.kyle@xtra. co.nz.
• 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
RONALD IAN JENNINGS
Would any lawyer holding a will for the above-named, late of 1 Kauru Road, RD 2, Hastings 4172, retired, born on 2 March 1928, who died on 5 September 2012, please contact Neil Dent, Gifford Devine Solicitors, PO Box 148, Hastings 4156, ph 06 873 0420, fax 06 876 0043, email nwd@ giffdev.co.nz.
JUNE LOAS CARPENTER
Would any lawyer holding a will for the above-named, late of Ruakaka, who died on 29 August 2012, please contact Anna O’Callaghan, Prudentia Law, PO Box 340, Shortland Street, Auckland, ph 09 912 1985, fax 09 912 1982, email anna@prudentia.co.nz.
SITUATIONS VACANT
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
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FAMILY LAW POSITION Wain and Naysmith Limited is a well-established and successful firm in Blenheim. We have high standards and provide a high level of client care. We have excellent support staff. We have a friendly office atmosphere. Our current family law associate is leaving us, and we are looking for someone to fill her shoes. We require someone with family law experience who is a self-starter and able to work relatively autonomously. Work in other areas of law could also be available. We are flexible as to the amount of experience required. We are more interested in finding the right person. Marlborough is a marvellous place to live. Please apply to our practice manager Duncan Carr Duncan@wainlaw.co.nz, or feel free to contact Duncan with any questions. 32
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LAWYER RICHMOND, NELSON A vacancy exists at Pitt & Moore for a new lawyer with a minimum 4 years PQE general practice experience to work along side a Partner in our Richmond office. Our requirements for this role include assisting SME’s, business owners and private clients with a wide range of legal issues ranging from commercial matters through to conveyancing and setting up and maintaining trusts. The successful applicant will need to be a motivated, detail focused and a self-assured operator. In return you will get the opportunity to develop your skills and practice with the support of a leading regional firm. If you have the required experience and are ready for a challenge please apply by emailing your CV to pauline.jones@pittandmoore.co.nz. 78 Selwyn Place, PO Box 42, Nelson 7040, New Zealand Ph 03 548 8349 F 03 546 9153 W www.pittandmoore.co.nz
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Commercial and Property Solicitor Richmond, Nelson
Wellington Junior Litigator (up to 2 years’ experience) Luke Cunningham & Clere is a medium sized law firm based in Wellington’s CBD. As the Wellington Crown Solicitor’s office we undertake criminal prosecutions, regulatory enforcement and litigation for the Crown. Although our core work is the prosecution of indictable offences the firm has an expanding practice acting for a wide range of Crown and other entities providing representation and advice with a focus on civil litigation, public law, regulatory enforcement and professional disciplinary work. No other firm in Wellington can offer solicitors the hands on advocacy experience we do. A vacancy for a junior litigator has arisen and we are seeking to appoint a solicitor who has been admitted to the bar, and has up to 2 years experience, to work across our client base. We are looking for exceptional candidates with strong written and oral communication skills. You will be conscientious, resilient, able to manage your workload effectively and have a demonstrated ability to relate well to a wide range of people. Previous litigation, court and criminal experience is advantageous but not a prerequisite.
Fletcher Vautier Moore currently have a career opportunity for an intermediate to senior lawyer with commercial and property experience. This is a busy and exciting position as you will be stepping into an established and significant client base. The successful applicant will have a proven track record, be very competent and have an excellent work ethic. We will provide the support of a large firm with significant levels of experience in all areas. While the position will be a busy one, we all still maintain a work and life balance ensuring we enjoy all that the sunny Nelson region has to offer. Please send a cover letter and short CV to Sue Gardener, Partnership Secretary by email sgardener@fvm.co.nz www.fvm.co.nz
All applications should include a covering letter, curriculum vitae and academic transcript. Please send applications to Luke Cunningham & Clere, PO Box 10-357 Wellington 6143, Attention – Jenny Paget, or by email to jlp@lcc.co.nz. No agencies please. Applications close at 9 a.m. on Monday 29 October 2012.
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SOLICITORS LITIGATION MANAGEMENT WELLINGTON Our Litigation Management Unit is currently looking for someone who is keen to develop their technical skills. Being a Solicitor in Litigation Management will give you an opportunity to gain solid experience and challenge yourself in a specialised legal field. Litigation Management is responsible for the management of tax cases, other complex High Court matters, appeals, declaratory judgements and judicial reviews. We also maintain an overview of Inland Revenue’s entire litigation effort. There is variety and challenge involved in this role, and with your aptitude you will have the chance to test yourself as you grow and/or apply knowledge of the New Zealand tax system and complex transactions. We are interested in hearing from applicants who come from a range of different levels of legal experience who hold a current practicing certificate (or the ability to achieve this before you start). Equally important to us is your talent for building and maintaining good relationships, and your solid negotiation and analytical skills. An added bonus will be your existing skills in the interpretation and application of tax law in judicial arenas or your desire to add these skills to your skill set. These are intellectually challenging roles working with people like you committed to providing quality outcomes. If you are energised by the challenge of resolving a range of difficult tax and legal issues, join us and make a difference. You will also be working in a supportive, family-friendly environment that recognises that you have life outside of work. To apply for this role please go to http://www.ird.govt.nz/aboutir/careers/ and attach a cover letter and CV. For more information please contact Shona Spicer on (04) 890 1548. Applications close at 5pm Monday 29 October 2012.
Commercial/Property Solicitor, Christchurch • • •
Top Christchurch firm 3 - 7 years’ PQE Interesting & varied work
Use your commercial law and commercial property experience to work with a variety of clients involved in the Christchurch rebuild. You will have a minimum of three years PQE working in this field and have a good knowledge of commercial leasing. We will also consider more experienced solicitors up to Senior Associate level.
Commercial Solicitor, 5 - 7 years’ PQE, Wellington • • •
Leading national firm Quality, high-profile work Excellent remuneration package
Great opportunity to join this national full-service firm and use your corporate/commercial experience to offer commercially astute advice to a wide range of clients. You will have a minimum of five years experience, preferably within a large firm, and be looking to move somewhere with realistic opportunities for progression. Call now for a confidential discussion about this role and your current situation. For further information in strict confidence contact Ben Traynor or Jane Temel on 04 471 1423 or email admin@ nicherecruitment.co.nz. www.nicherecruitment.co.nz
LAWTALK 805 / 12 OCTOBER 2012
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SITUATIONS VACANT
OUTSTANDING CAREER OPPORTUNITIES
COMMERCIAL LAWYER
FAMILY LAWYER
Our Business Law team is passionate about helping SMEs and corporates to unlock their potential. If this sounds like you, we would love to hear from you. We work alongside great clients ranging from household names to privately held companies. You will be involved in a wide range of interesting and cutting edge work in a friendly and supportive team. You will have plenty of client contact and responsibility, and will work closely with other team members. Ideally you will be an intermediate or senior lawyer with at least four years corporate and commercial law experience.
If you are an experienced family lawyer with strengths in Relationship Property and COCA, and a genuine interest in helping people often going through a difficult time, we would love to hear from you. We have great clients and you will be involved in a wide range of interesting and challenging family work in a friendly and supportive team. This is a fantastic opportunity to further develop the practice and bring your own style to the team. Ideally you will have a minimum of seven years family law experience and maintain excellent external relationships with Barristers and Court personnel.
For more information or to apply for either of these positions, please see www.jacksonrussell.co.nz or contact Janet Lee Martin atjleemartin@jacksonrussell.co.nz or ph 09 300 6921.
www.jacksonrussell.co.nz
Direct applications are requested. All applications will be treated in confidence.
Ad Commercial Family September 2012 (2).DOC
IN-HOUSE COUNSEL • Listed company • Wellington CBD This NZX listed company is a major participant in one of New Zealand’s fast growing sectors. They have a vacancy for an in-house counsel. This role has been created to meet the needs of a company which is expected to double in size within the next few years. This is a hands-on role which reports to the CFO. Responsibilities include working with multi-disciplinary teams on transactional matters, improving existing processes and documentation, and providing advice on compliance issues including company secretarial functions. The ideal applicant will have: • At least 5 years’ PQE in corporate/commercial and property law • An energetic and self motivated personality • Excellent written and oral presentation skills • A collaborative and friendly working style with a solutions focus Applications close on 18 October. To apply, please visit www.momentum.co.nz and enter reference number 31468 on the home page. Alternatively, email your CV and cover letter to jobs@momentum.co.nz quoting the reference number. For further information including a job description, please contact Carla Wellington or Marissa Barnao on (04) 499 6161. Please note all applications will be acknowledged electronically unless otherwise specified
191 Queen Street Auckland P +64 9 306 5500
40 Mercer Street Wellington P +64 4 499 6161
DAYLIGHT SAVING – CHANGE YOUR CLOCKS AND YOUR JOB! Banking and Finance Lawyer 3+ years, Wellington: Leading banking and finance practice has an opening for a talented intermediate lawyer. Acting for a range of banks, financial institutions, corporates, Government departments and local authorities, this role requires you to work across corporate and local authority debt financing, capital markets, property finance, corporate insolvency and restructuring work, PPSA and provide general banking advice. If you are looking to advance your career within a high performance culture, look no further! Ref: JL31385 Corp/coml/property solicitor: If you’re a 2-5 year solicitor with property, B & F or corporate/commercial experience and wanting something different from your run-of-the-mill private practice, then keep reading. This boutique firm is bucking the Wellington trend and expanding. Their already strong reputation has been reinforced by their appointment to the All of Government panel, meaning they offer a choice range of high quality work with top government and private sector clients. Ref: CW31224 To apply, please send your CV to wellingtonjobs@momentum.co.nz quoting the relevant reference number. For a confidential chat, please contact Jennifer Little (JL31385) or Carla Wellington (CW31224) on (04) 499 6161.
M O M E N T U M .C O. NZ