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THE MAGAZINE
FEATURE: CAMERAS IN THE COURT
“The Law Society presidency presents a new set of challenges... I am really looking forward to that.” p. 14
“If a distorted view of a trial is all the public gets, then the justice system is indeed not being served and neither are we.” p. 9
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Lawyer receives Queen’s Diamond Jubilee medal
Salary survey shows steady progression by experience
The court and the sound bite
Auckland lawyer Anita Killeen was one of a select few who received the Queen’s Diamond Jubilee SPCA Volunteer Medal...
The New Zealand Law Society/Momentum Legal Salary Survey 2012 has been released...
If the Criminal Bar Association and the New Zealand Bar Association had their say, television news cameras would exit the courtroom...
By RACHAEL BRECKON
14 Chris Moore is the new President-Elect Auckland commercial property lawyer Chris Moore was elected the New Zealand Law Society’s President...
What some leaders are saying
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Opinions from Judith Collins, Charles Chauvel, Tony Paine, Kim Workman and Kate Stone.
Seminars on a most important task Is a Segway a “motor vehicle” for the purposes of the Land Transport Act 1998...
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CAMERAS IN THE 5 4 8 COURTROOM Call for a review of TV Five risks of edited TV cameras in court
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Māori Leadership in Law Scholarship established
Finding the right e-discovery software
The Māori Leadership in Law Scholarship, in memory of Jolene Patuawa-Tuilave...
E-discovery software is becoming an essential part of any litigator’s toolkit.
By FRANK NEILL
Law Society President Jonathan Temm is “very encouraged” that his call for a review of TV cameras in courtrooms has sparked debate...
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Lawyers complaints Service
In the speech in which he called for a review of television cameras in courts, Law Society President Jonathan Temm identified five “risks”...
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By RACHAEL BRECKON
In the autumn of 1888, London’s Star newspaper recorded a policeman's account of Catherine Eddowes’ murdered corpse...
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Cameras in court promote open justice, media says
Cameras in court
By ELLIOT SIM
By URSULA CHEER
“The notion that some crazed owner, thirsting for sleazy, sensational, gratuitous, misleading and exploitative courtroom coverage...
In September 2012, Law Society President Jonathan Temm publicly suggested that cameras be banned from the courtroom...
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LAWTALK 807 / 26 OCTOBER 2012
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FROM THE LAW SOCIET Y Jonathan Temm
L
eaving the country for a few weeks can be interesting – particularly when just before departing, you deliver a paper to an international congress of criminal lawyers and judges calling for a review of TV cameras in courtrooms. This issue of LawTalk brings together some of the points of view held about this important matter. The rather animated debate conducted through the media over the last month has brought out some interesting comments. There appear to be few members of the legal profession who are not concerned with the impact that some TV broadcasts from courts have had in undermining general confidence in our justice system. My departure from New Zealand was not to escape hordes of outraged journalists. One of the privileged aspects of my role as President of the New Zealand Law Society has been to represent the Law Society at international gatherings of the legal profession. As members of a highly trained profession we have an affinity with lawyers from all countries. We all share an interest and a concern in some of the fundamental matters in any society: access to justice, the rule of law, human rights issues, climate change issues, the right to a fair trial and providing effective legal representation. Lawyers’ organisations play an important part in improving the rights of all people. Three conferences I have attended in the last two months have emphasised this to me.
From 27-29 August I attended the 23rd conference of POLA in Manilla. “POLA” stands for Presidents of Law Associations in Asia. It is an excellent opportunity for the leaders of lawyer organisations from Asia and the Pacific to meet and exchange ideas and experiences. One of POLA’s key objectives is to co-operate in advancing the status of lawyers and to foster the development of regulatory systems which ensure transparent and rule-based governance. These are also, of course, key concerns of the New Zealand Law Society and I greatly enjoyed the chance to hear how other associations are working and to provide information on New Zealand.
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LAWTALK 807 / 26 OCTOBER 2012
The theme of POLA this year was The Legal Profession and the Renewed Challenges of Globalisation. Each association presented a report on the organisation of the legal profession in their country and major issues and developments over the past year. Then in September/October I spent some time in Ireland at two outstanding gatherings of lawyers. The Commonwealth Lawyers’ Association Property Law Conference in Belfast from 27 to 28 September was jointly hosted by the Law Society of Northern Ireland and the Commonwealth Lawyers’ Association (CLA). As well as representing the Law Society, I delivered a paper and participated in a panel discussion on the topic Property Law and Natural Disasters. It is a sad fact that the Canterbury earthquakes have led to the rapid development of New Zealand’s expertise in this area of law. At the same time it is encouraging that New Zealand’s legal profession has shown a high level of innovation and collaboration to solve some of the earthquakerelated problems. From 30 September to 5 October I was in Dublin at the Annual Conference of the International Bar Association (IBA). This is the lawyers’ conference to end all lawyers’ conferences. There were over 5,000 lawyers and legal professionals there and the sessions provided a huge range of information on developments in the law and legal practice. The IBA is a very powerful and influential organisation. The New Zealand Law Society is a member and I felt very privileged to represent us there. The strength of the IBA and the weight given to its inputs on international law reform and the practice of law show that we are members of a profession which truly helps make the world a better place.
Jonathan Temm New Zealand Law Society President
LAWTALK More than 12,000 copies of LawTalk are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certificate. Although the number of lawyers with practising certificates varies, it is typically around 11,500. Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.
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Arbitration conference The 116th Annual IBA International Arbitration Day will be held in Bogota, Columbia, from 21-22 February 2013. The manner in which the arbitral tribunal deliberates and prepares its award has so far drawn little attention. The questions raised by this conference arise in almost every arbitration, but they are rarely addressed in international arbitration conferences. It is time to re-examine our assumptions about the making of the award. See www.ibanet.org/Conferences/ conferences_home.aspx#2013.
Commonwealth law The 18th Commonwealth Law Conference will be held in Cape Town from 14-18 April 2013. Organised by the Commonwealth Lawyers’ Association, the conference theme is Common Challenges – Common Solutions: Commonwealth, Commerce and Ubuntu. Ubuntu is a term used in South Africa to denote humaneness, social justice, fairness and conformity with basic norms. It has particular resonance with the Commonwealth’s values of human rights, democracy, the rule of law and good governance. See www. commonwealthlaw2013.org.
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LAWTALK 807 / 26 OCTOBER 2012
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CAMER AS IN THE COURTROOM
Call for a review of TV cameras in court By FRANK NEILL Law Society President Jonathan Temm is “very encouraged” that his call for a review of TV cameras in courtrooms has sparked debate. And that debate has shown that “other people have been thinking what I thought and are concerned too.” In fact, Mr Temm says, “I can’t find anyone, other than the press themselves, who say everything’s fine”. Mr Temm made his call for a review in a speech to the 13th International Criminal Congress in Queenstown on 15 September. (His speech notes are at http://www.lawsociety. org.nz/__data/assets/pdf_ file/0008/55898/Television_in_ NZ_criminal_courts.pdf.) Some media reports stated that in his speech, Mr Temm called for a ban on TV cameras in courts, with some also saying he had called for a ban on radio coverage of the courts. That, however, was not correct, Mr Temm says. He certainly did not ask for a ban on radio. In fact he favours the legitimate print media and radio remaining to report on court proceedings.
‘we will show you how it actually is, how it really is’.
the kind of broadcasting that achieves the goal of informing the public.
“I’m not against TV. I just have genuine concerns about the cut and paste. They edit.” Mr Temm points to such presentations as close-ups of weeping widows, juxtaposing that with an image of the accused, cutting between
“By far and away I commend the ICC at the Hague model of live, uninterrupted broadcast without edit or commentator voiceover.”
“
In the edited and sensational form in which it is being presented and delivered, it is not educating or informing the public.
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Jonathan Temm
“I asked for a review of TV cameras in court, because I was unsure whether TV was meeting the objectives that it set for itself when it asked for entry into the criminal courts.
courthouse footage and file images, repetition of file images, and other editing devices which do not, in his view, present to the public an accurate picture of what actually happened.
“TV argued that they should be able to come into the courthouse because the written press was not accurate. TV said:
“I favour live continuous streaming that other jurisdictions have and some people have mentioned. I think that is
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The other important aspect of his suggestion which, Mr Temm says, a lot of people seem to have missed, is that he was not addressing the matter of how well or otherwise TV was meeting the guidelines for the use of cameras in court. Those guidelines were focused on the integrity of the case, and such matters as not tainting the jury. What he was talking about was the “wider issue of what the public is getting (from TV coverage) and their impressions of what is going on (in the courtroom). That is what I wanted people to focus on”. What he was suggesting was that TV broadcasting was “quite damaging” in how it was presenting to the public and was “eroding people’s confidence in the justice system”. “In the edited and sensational form in which it is being presented and delivered, it is not educating or informing the public.” Mr Temm says he welcomes calls for a review of TV cameras in courts. The focus of the review should be on what the public is being presented, rather than judicial oversight of specific trials. LT
CAMER AS IN THE COURTROOM
Five risks of edited TV In the speech in which he called for a review of television cameras in courts, Law Society President Jonathan Temm identified five “risks” in edited television coverage.
1st
3rd
First, he said, “it does affect the process. The whole structure and process of a criminal trial is intended to remove emotion. Criminal justice seeks to make decisions in an impartial, objective and emotionless environment.
“Third, it affects the rights of the accused in the way in which television portrays the accused. The television casts persons in the criminal process in a certain way.”
“The days of the galloping posse to catch and hang the wrong-doers are in the past. But television wants to bring that back! “It introduces emotion despite all the effort to set it aside. “Judges are required to give juries direction and advice about media, particularly television, social media and the internet. It must be a recognised risk that juries may see television coverage and commentary of the trial they are determining. In that eventuality, they are subject to opinion and impression.
2nd “Second, it does affect the parties, including the victims, their lawyers, the judges, and the jury. “The OJ Simpson trial is a good example. There is a suggestion that criminal trials are not covered so much in the US now. “Television coverage becomes a distraction. They do not occupy the press bench. The cameras are obtrusive; certainly in large numbers. Those unused to the intrusiveness do find it affects performance and sometimes judgement. “It is not a process one would say they ‘enjoy’.
Just one way it does this is by repeated images of the same photo. “The Auckland Crown Solicitor recently referred to the ‘demonising’ of Macsyna King in the Kahui trial. This process begins very early, right from the time of charge and first appearance. “It engages in public odium of the accused before the verdict. In the Clayton Weatherston trial, the accused was portrayed by the television media in a particular way. “It criticises the defence position. It reports lines of questioning and criticises that, and it misrepresents the defence. Just ask Greg King about his views on the televised closing address in the MacDonald trial!
4th “Fourthly, it demeans the justice system. “It erodes society’s sense of confidence in the justice system. It is not helpful in educating the public because it is not portrayed in an educational or informative way.” Mr Temm discussed the role of television coverage of Clayton Weatherston in the abolition of the defence of provocation and recent attacks on the “right to silence” and the related right to not give evidence at trial having their genesis in televised trials
(MacDonald/Kahui). “Justice is not being served by shallow, prejudicial coverage spawning illinformed debate.
5th “Finally, we need to look at what the television cameras want to cover. “They do not want to cover tax cases, or resource management appeals. They do not want to do judicial review on the exercise of public officials’ powers under the Dog Control Act or the wastewater management regime. “They are only interested in what they perceive as high-profile criminal trials. It is the media that determines the case profile. “There are, in fact, homicide trials continuing most weeks throughout New Zealand. The regularity of them now against their scarcity from the 1950s and 1960s is a different issue. The fact is that they are going on frequently. “Some gain prominence and others don’t. What determines the prominence is the media editors, producers and their commercial interests. “When you ask the media why they chose one trial over the other, they trumpet: ‘it is in the public interest.’ “What is the public interest? “I query the media about this because they do not identify the public interest. There is a world of difference between the public interest on the one hand and what interests the public on the other.” LT
LAWTALK 807 / 26 OCTOBER 2012
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Cameras in court promote open justice, media says By Elliot Sim “The notion that some crazed owner, thirsting for sleazy, sensational, gratuitous, misleading and exploitative courtroom coverage would have sway over 3 News is nonsense,” says 3 News Auckland Bureau chief Keith Slater. “Nonsense, too, is the notion that our news editors would stoop to such levels.” The 3 News newsroom “jealously guards its editorial independence”, according to Mr Slater. He says the news agency is guided by the In Court Media Coverage Guidelines which were determined by an expert committee and senior members of the judiciary, and it takes them “very seriously”. “If we get it wrong there are sanctions, not to mention the potential loss of credibility in the eyes of our viewers.” Mr Slater says what television does (as does the print media) is reflect the key parts of trials. “Viewers and readers have a multiplicity of viewpoints and summation which can only be good for all parties. “If Mr Temm sat in on an editorial discussion about the content of a television news item using camera in court material, he would be surprised at the rigor and care that goes into ensuring the content is fair and accurate. “In the end, it’s not the cameras, the viewers or the lawyers who determine innocence or guilt but the jurors. It is they, relying on the facts presented in court, who arrive at the verdict,” he says. Sky News NZ news director Alistair Wilkinson agrees, saying coverage of the courts is not sensationalist and that changing the way the courts are reported on is unnecessary. “Cameras in court play an important role in ensuring that justice is seen to be done,” he says.
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Failing to provide a way for the public to watch the court system deliver justice “can only be unhealthy for democracy”, says TVNZ Editor Daily Programmes, John Gillespie. “Alarmingly, Mr Temm seems to be attempting to erode the freedom of the media by excluding television from covering court cases altogether. That would strike at the heart of freedom of the media in a democratic society.
“
The camera is literally the eyes and ears of the public who would not otherwise be able to see and hear what goes on inside the courtroom.
”
JOHN GILLESPIE “We pride ourselves on the calibre of our journalists and camera crews and producers to tell involved, long running and complicated stories, be they courtbased (or not), in a skilful and fair way.” Mr Gillespie says since cameras were welcomed into the courts, thousands of cases had been covered, with no mistrial, no prosecution of contempt and with very few complaints or issues raised.
“The checks and balances are already in place, and media organisations are acutely aware of their responsibilities in this area.” The Media in Courts Committee which monitors in-court media coverage, the watchful regulatory eye of the Broadcasting Standards Authority, qualified privilege, and the oversight of in-court camera use by a presiding judge, all help to ensure fair, balanced and accurate coverage, says Mr Gillespie. “Fundamentally, cameras in court promote open justice. We are proud that the New Zealand justice system has been progressive in terms of allowing media to capture and share with the New Zealand public actual in-court events. “The camera is literally the eyes and ears of the public who would not otherwise be able to see and hear what goes on inside the courtroom.” Mr Gillespie rejects the argument that television coverage is sensational. “Mr Temm argues that various highprofile witnesses have been portrayed by the media in a particular way, referring to Clayton Weatherston and Macsyna King. I think Mr Temm forgets we didn’t choose how they were portrayed. We reflected them as they were in court giving evidence. If television coverage was at times dramatic or sensational, it was not of our making.” A review of cameras in courts is unnecessary and they should not be banned, says Dominion Post Editor Bernadette Courtney. Ms Courtney says judges decided cameras should be allowed in court and, therefore, they themselves should determine the limits.
He says when problems have arisen, they have been responsibly and swiftly addressed.
“Judges have complete discretion over whether television cameras, still photography and audio is allowed in court.
“Camera in courts issues are subject to a high level of scrutiny.
“The decision to allow cameras in court was made after extensive consultation
CAMER AS IN THE COURTROOM with media representatives over many, many months. “Guidelines were drawn up to balance both the media’s responsibility to report proceedings in a balanced and fair way and the needs for courts to run smoothly and for fair trials.” She says Mr Temm’s argument brushes over the fact judges can determine whether a trial is being covered and presented appropriately, and withdraw permission to film at any time. Ms Courtney cites an editorial published in the Dominion Post on 28 September. “The decision to allow court proceedings to be filmed, photographed and recorded was a milestone in the way trials are reported in New Zealand. Before it was introduced in the mid1990s, the operation of the criminal justice system was a mystery to those who had not found themselves before it, served on a jury or ducked into a courtroom to watch a trial. Now, the public can see for itself how the courts operated in its name are run. “It is a vital component of the openness that goes hand-in-hand with the public having confidence in the administration of justice. Of course, news reports are of necessity edited, and of course reporters and those doing the editing concentrate on the aspects they think will be of most interest to the public. There will be times when those decisions stir controversy and debate.” LawTalk approached the New Zealand Herald, which referred us to an editorial it printed on 24 September. “The media have long taken their place in courts as the surrogates of the public to ensure justice is seen to be done and reported fairly and accurately.” Furthermore, the editorial says the use of television and still cameras in courts from the 1990s was always subject to the judges’ authority, so too online sites which show video from courtrooms. “Televising what occurs in the courts, tribunals and commissions of inquiry is a public service. It demands professional judgement and editing. Selections of evidence must be made, as with all media reports, but the law requires fair and accurate coverage. “There have been few, if any, instances where judges have deemed television coverage problematic.” LT
The court and the sound bite By Rachael Breckon IF the Criminal Bar Association and the New Zealand Bar Association had their say, television news cameras would exit the courtroom.
Mr Bouchier’s case is similar. “At the end of the day the news services are about selling advertising and all they can do is deal in sound bites,” he says.
“The experiment of cameras in court has failed,” says Paul Mabey QC, chair of the New Zealand Bar Association Criminal Committee.
TV3 news Auckland Bureau chief Keith Slater says there is a distinction between television channels that are concerned with advertising revenue and news teams who are concerned with “accuracy, consistency and credibility”.
“The right of the media to have cameras in court has failed to meet the requirements of open justice and balanced reporting.” Cameras add “no value” to court proceedings, the President of the Criminal Bar Association, Tony Bouchier says. Underpinning Mr Mabey’s argument that news cameras should be banned from the courtroom is that television companies have a “natural concern with ratings and advertising revenue. Those commercial considerations are in direct conflict with any concept of balanced reporting.”
What some leaders are saying
“These organisations, the New Zealand Bar Association and the Criminal Bar Association, should they wish to visit a newsroom to establish the facts, as opposed to their misconceptions, I extend them an invitation,” Mr Slater says. Sky News NZ news director Alistair Wilkinson says: “It is possible to have concern for both public justice issues and providing a programme that viewers want to watch. They’re not mutually exclusive.” LT
Charles Chauvel, Labour Party justice spokesperson
Judith Collins, Minister of Justice “In-court cameras are a matter for the judiciary. I am aware that judges are under increasing pressure from the media to allow cameras in court as a matter of ‘right’. “I’m also aware that reality-TV-like coverage of trials might make good television, but has little to do with justice. It’s important our justice system is held in the highest regard and that the public has confidence in the important work undertaken by our courts. “I have discussed this matter with the Chief Justice and with the President of NZLS and we share concerns. The Ministry of Justice will provide the resources to support the judiciary in its review.”
open democracy.
“For better or for worse, live media in our courts are as the tide was to Canute. Seeking to ban them is unrealistic; nor is it consistent with the legitimate expectations of an
“A court TV channel is an idea with merit but, again, it’s unrealistic to expect it to screen one hearing, in full, at a time. It is certainly timely, however, to ensure that the rules that apply to reportage of proceedings are adequate, both from the point of view of fairness to the participants and for proper confidence in the administration of justice.”
Tony Paine, chief executive Victim Support “Victim Support believes that it is often very unhelpful to have media cameras
LAWTALK 807 / 26 OCTOBER 2012
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CAMER AS IN THE COURTROOM in the courtroom. We are particularly concerned about the voyeuristic presentation of victims’ and other witnesses’ grief during the presentation of evidence. “This is an inappropriate invasion of privacy and does nothing to make justice more transparent or understandable to the wider public, and can only make being a witness even harder. “We also agree with the view expressed by a number of commentators recently that sound-bites of evidence and proceedings inevitably oversimplify the nature of evidence and decision-making, and can contribute to distorted views of the fairness of conclusions reached by juries or the court.”
Kim Workman, Director Rethinking Crime and Punishment “In August, Rethinking advised a Parliamentary Select Committee that ‘TV cameras could lead to the ‘Oprahfication’ of justice, with the TV cameras capturing every twitch of the offender for signs of defiance or remorse, and the New Zealand viewing public casting their votes accordingly’. “However, it is not sufficient to focus only on how to better manage emotion in the courtroom. We need also to introduce processes which enhance the healing potential for victims, and at the same time, preserve the basic rights of defendants. Rethinking sets out how that can be achieved in its latest newsletter at www.rethinking. org.nz/assets/Print_Newsletters/Issue_107.pdf.”
Kate Stone, co-chair JustSpeak “Camera access to courts can be a gateway for those who otherwise would not be exposed to the justice system. However, cameras in court are not the complete answer. If we are to continue to allow cameras in court they must be accompanied by responsible editing and reporting of court cases by the media. “Currently, television coverage is often haphazard and not a fair representation of the trial process or the evidence presented in court. The consequence of this can be misinformed public debate, which then puts pressure on government to change law and policy in the justice sector. “It is important that our law and our criminal justice system is not a populist response to the sort of emotion that televised coverage of trial can evoke. However, the wider public need to have access to the courts in order to understand the justice system, and to have confidence in it and to do this should not require a law degree. “JustSpeak believes that education about how our justice system works and the fundamental ideas underpinning it should be taught in our schools. This would enable the wider public to think critically about footage of trials and to more effectively contribute to the debate on how our criminal justice system should work.” Ms Stone also said that “media coverage should not get in the way of the just resolution of cases, including the rehabilitation and reintegration of offenders.”
Real life crime drama “WHAT A GREAT EXPERIENCE”
By Rachael Breckon In the autumn of 1888, London’s Star newspaper recorded a policeman's account of Catherine Eddowes’ murdered corpse. “The first thing I noticed was that she was ripped up like a pig in the market,” her entrails “flung in a heap about her neck.”
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This story marked the beginning of what is referred to as tabloid crime reporting. The subject matter, serial killer Jack the Ripper. In fact coverage of Jack the Ripper was so controversial that in 2009 history professor Dr Andrew Cook published a book Jack the Ripper: Case Closed claiming there was no serial killer at all. According to Dr Cook, Jack the Ripper was a character invented by journalists to sell newspapers. Over a century later the OJ Simpson trial was staged on screen. The case is frequently highlighted by opponents of cameras in the courtroom. The television presence not only, arguably, put undue pressure on the jury, it also made stars of the participants, markedly his lawyer Robert Kardashian, the late father of reality TV stars Kim, Khloe, Kourtney, and Rob Kardashian. In fact, United States commentary criticising cameras in courts (the rules governing cameras vary from state to state) is as much about the motivations of the participants as the media’s coverage itself.
CAMER AS IN THE COURTROOM The actions of Judge Larry Seidlin, who wept when he delivered his judgment over the burial of Anna Nicole Smith, were scrutinised as an intentional dramatic ploy to secure a role in television.
Canada Earlier this year, Canadian Chief Justice Beverley McLachlin delivered a speech on: The Relationship Between the Courts and the Media. Canadian trial courts have not generally permitted their hearings to be broadcast on television, where witnesses are involved. But, before appellate courts, the practice has been more liberal. The Supreme Court of Canada has permitted television coverage of all its hearings since the mid-1990s. The Canadian courtroom is fitted with fixed cameras that automatically focus on the speaker (counsel or judge) without any disruption. In Canada no witnesses are filmed in trial and the Cable Public Affairs Channel broadcasts most of the Court’s hearings in their entirety. “The Supreme Court’s experience with television and webcasting has been
positive,” Justice McLachlin says.
Divisions) to be broadcast.
“Live webcasting, in particular, has opened the court to many citizens across the country. However, this does not mean that other courts ought necessarily to follow our lead. From our perspective, which is quite different from that of a trial court, I believe that the broadcasting of our hearings has contributed to public confidence in the Supreme Court of Canada.”
“Given the complexity of legal issues in Court of Appeal cases, [the ministry] believe[s] that allowing advocates’ arguments to be filmed in addition to judgments would be more likely to improve public understanding than judgments alone,” the White Paper states.
United Kingdom The United Kingdom looks set to introduce cameras in the courts. Their Ministry of Justice published a White Paper in July 2012 titled: Swift and Sure Justice: The Government’s Plans for Reform of the Criminal Justice System. In the document, the ministry outlined the steps it intends to take to increase transparency in court proceedings. One of the ways it intends to do this is to remove the ban on cameras in courts and allow broadcasting in some circumstances. This will include allowing cases before the Court of Appeal (Criminal and Civil
There are no immediate plans to allow broadcasting of whole trials from the Crown Court, but, over a longer period, the ministry intends to extend broadcasting to judges’ sentencing remarks in Crown Court proceedings, the White Paper says. In all cases, the judge will have the final say over whether proceedings should be broadcast, and will be able to halt filming at any time.
Australia Australia does not allow cameras in the courtroom. However, an exception was granted for the 2011 ABC documentary On Trial where cameras were granted unprecedented full access to the Supreme Court of Western Australia and the District Court of New South Wales. There does not appear to be any current movement in this area. LT
Cameras in court By Ursula Cheer* In September 2012, Law Society President Jonathan Temm publicly suggested that cameras be banned from the courtroom because some coverage demeans the justice system and puts the trial process at risk. In response, Justice Minister Judith Collins said that the current law is likely to be reviewed. The minister noted she was appalled by the coverage of some trials, and singled out the recent Scott Guy murder case, describing the television coverage of that trial as selective and sensationalised. Others expressed concern about the coverage of that trial where cameras seemed to be trained on the accused, Ewen MacDonald, and also on the two wives involved – Kylee Guy and Anna Macdonald. Critics objected to what they saw as a focus on emotion, on the women crying, and on their appearance – for example, on Anna Macdonald not wearing her wedding ring in the witness box. Ms Collins referred to such coverage as “sensationalised to the extent that it was almost like reality TV and I don’t think that that does justice any good” in a Dominion Post story published on 24 September (http://www.stuff.co.nz/ dominion-post/news/7719479/Rethink-after-realityTV-court-case). Of course, it has to be acknowledged that in spite of this coverage, Ewen Macdonald was acquitted. Thus arguments
about risk to a fair trial do not appear to be very strong in that case. In general now, the judges acknowledge this sort of media coverage is here to stay and deal with such risks by giving strong instructions to the jury not to be influenced by anything they hear or see outside the evidence given at the trial. In short, they take the view that we have to keep trusting our jurors to do their jobs. This approach is pragmatic and sensible. However, the law of contempt does need to be enforced when it is shown media coverage has created a real risk of interference with fair trial rights. In fact, the arguments against emotive and selective coverage
Independent Resource Management Specialist Advice, strategy, advocacy, dispute resolution for your clients Waterfront Chambers Wellington
Philip Milne Barrister
021 803 327 or PA 04 499 6653 philip.milne@waterfront.org.nz milnelaw.co.nz
LAWTALK 807 / 26 OCTOBER 2012
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CAMER AS IN THE COURTROOM are perhaps strongest when focused on media not doing the job it is in court for – being the eyes and ears for the public. Arguably, if a distorted view of a trial is all the public gets, then the justice system is indeed not being served and neither are we. New Zealand only allowed televising of trials in 1995. We are ahead of the United Kingdom, which is still agonising over whether and how to allow coverage, and some might see us as behind the United States, where pretty much everything can be televised. The sorts of concerns expressed about filming include that the presence of cameras in court could reduce the likelihood of a fair trial, in that participants may be distracted or selfconscious and thus behave differently than they normally would. There is also the risk that participants, including jurors, might be influenced by edited television highlights, now available day and night, not just in the evening. The entertainment emphasis of the medium is feared to trivialise the proceedings and turn them into a circus, such as happened in the OJ Simpson murder trial.
The effect of publicity on the parties, particularly the accused, is also a concern. It is one thing to have one’s name in the papers, it is quite another to have one’s picture in everyone’s livingroom at prime viewing time. However, the presumptive rule is that justice is administered in public, so publicity is therefore the soul of justice. And if anyone can (in theory) go into court and observe proceedings, why should everyone not have the equivalent opportunity of watching them on television, or on the internet or wherever? Another argument in favour of cameras in court is that televising proceedings will have an educative effect by allowing citizens who otherwise would have no chance of attending court in person to observe the system at work. The system can thus become more accountable. Moreover, s14 of the New Zealand Bill of Rights Act 1990, which confers a right of freedom of expression, confers the right to receive and impart information in any form. And there is no reason why the electronic media should be in any worse position than their print colleagues. Furthermore, media are tweeting semi-continuous coverage live from prominent trials now as well, with judges coming to terms with adapting the courtroom to that, as happened in the David Bain retrial. In February 1995, New Zealand began a pilot project allowing electronic media coverage of court proceedings. After a thorough investigation of the workings of the pilot scheme, and a survey of opinion on it, it was eventually decided to adopt the scheme permanently. A set of Guidelines for Expanded Media Coverage of Court Proceedings was adopted in 2000. They have been updated and are now called The In-Court Media Coverage Guidelines 2012.
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(They are at www.justice.govt.nz/ media/media-information/mediaguide-for-reporting-the-courts3rd-Ed/appendices/appendix1-in-court-media-coverageguidelines-2012/in-court-mediacoverage-guidelines-2012.) These are not rules or regulations: they are advisory to the judges, and create no rights or expectations. There are virtually identical guidelines regulating filming, still photography and radio coverage. In fact, all matters are at the discretion of the judge. If the guidelines or any conditions imposed are breached, the judge can terminate the coverage. All applications to televise or otherwise record proceedings may be approved unless a party indicates, within three days of being advised by the Registrar of the application, that they object. The Guidelines have been the subject of conflicting judicial comment in the High Court, which has been resolved in favour of a generally open approach. In R v Sila ([2008] NZAR 294), Justice Fogarty strongly challenged the validity and purpose of the Guidelines. In that case, the judge thought publishing and broadcasting images of the accused while on trial was akin to the ancient punishment of pillory, and a judge had a duty to treat the accused as innocent until a verdict of guilty. However, an opposite view was taken by the High Court in R v Crutchley (HC Hamilton CRI-2007-068-83, 16 May 2008). This was a successful application by television and print media to cover a trial for attempted murder. The judge held that sometimes it is in order to ensure justice is done by overriding the principle that trials are to be public. However, that principle may only be departed from exceptionally. Justice Keane did not agree that the photographing or filming for television of an accused person in the dock is a humiliation akin to pillory. The judge said: “The essence of that old punishment was public humiliation, even public assault. An accused person in the dock, by contrast, is presumed innocent. The dock protects as well as secures. The presence of the public in the Courtroom is a safeguard against arbitrary trial.” (R v Crutchley at [7]). The judge concluded that although an accused person in the dock may well feel humiliated, this would be no reason to exclude the public from the court. The fact that media coverage might
CAMER AS IN THE COURTROOM increase the public gaze was not a reason to exclude the media either. In fact, a principal purpose of the Guidelines is to assist a trial judge to obtain the media’s co-operation and thus prevent any possibility of pillory. Other decisions have tended to follow that case. In R v Dixon (HC Auckland CRI 2003 092 26923, 19 June 2008), a man who faced a retrial for murder and was pleading insanity objected to applications by television media to have cameras in court. The Court followed Crutchley, noting that these days television is the proxy for the eyes and ears of the public, and that because of the presence of a substantial amount of unflattering archive footage which existed of the accused, it would be futile to prevent further coverage. The same applies in civil proceedings. In a case involving bankruptcy proceedings against a prominent New Zealand author, the High Court ignored objections to an application by the New Zealand Herald to take still photographs. (Mutual Finance Group Ltd v Duff HC, Napier, CIV 2008-441154, 1 August 2008). In doing so, it applied Crutchley and agreed with Dixon, as well as noting the provisions of s14 of the New Zealand Bill of Rights Act 1990 underpinning freedom of information. The author argued there was no news value in the proceedings since no party would be in court. However, the court noted that the matter of news value was for the media to decide. The order was granted subject to standard conditions, but on condition that the hearing take place at the conclusion of the list. While increasingly the approach favours the right of media to be in a courtroom filming or indeed, tweeting, it is really the nature of the coverage once media are there that has been acknowledged by Mr Temm and the Minister herself. Even though media do have reasonably good access, commercial pressures on media organisations currently are such that media representatives cannot afford either in time or money to be in every court, all day, every day. No matter how much footage is captured, (and it will
never be everything), it will be edited for broadcast. Limited footage will never get the full picture across to the viewer and ultimately, it may indeed give a skewed sort of coverage. So although media are the eyes and ears of the public, a real record of what goes on in a trial is unlikely to be published in any media. New rules cannot solve this problem. Media cannot be forced to cover every moment of a trial. An ideal solution might be a channel or website of some kind devoted entirely to full coverage of trials (and those chosen
“
If a distorted view of a trial is all the public gets, then the justice system is indeed not being served and neither are we.
But any review of filming in courts will not be able to put the genie back in the bottle, especially given the Bill of Rights and the increased recognition given to freedom of expression.
”
would have to be of great public interest, because every trial still could not be covered).
Transmission of such coverage would still have to be delayed to protect fair trial rights, as some evidence would have to be suppressed in appropriate circumstances. But this would be true openness or as true as it could get.
This “Court TV” channel would be like Parliament TV, where the audience can see every boring detail revealed, every MP asleep, doing the crossword or knitting. The public might well be amazed at how boring long trials can be and this would perhaps lead to more public respect for the important role that juries play, and the seriousness with which members of juries usually approach their task. Conversely, it might just put members of the public off serving on juries altogether. Currently it is unlikely resources exist for this proposal, even though the government is pursuing more openness generally under its Better Public Service agenda.
URSULA CHEER
This would have been appropriate for the Bain retrial, when there were so many media trying to get in the courtroom. There had to be sharing arrangements and the task of dealing with media became very fraught for the judge.
Media would still want to use excerpts from trials, of course, and could not be prevented from doing so unless use was in such a way as to be a contempt. But at least if the public wanted to see the whole of a trial, they could, and compare this to the media coverage.
One other possibility might be for the Government to increase resources for Crown Law so it does not have to be so tentative about who it pursues for contempt. Some do feel contempt is not being prosecuted as robustly as it could be, but that does depend on a view of how influential the media are. An opposing argument is that trust in media is so low now that no one pays much attention to emotive reporting of trials any more. As it is the only coverage we have, though, this sort of cynicism is problematic. Undoubtedly, the debate will continue. *Professor Ursula Cheer is on the faculty of Canterbury University’s Law School. Her research interests lie in a combination of torts, such as defamation, civil liberties, in particular, censorship, and the broad range of topics making up media law. She and John Burrows are co-authors of Media Law in New Zealand (6th ed, LexisNexis, 2010).
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LAWTALK 807 / 26 OCTOBER 2012
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PEOPLE IN THE LAW 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.
PEOPLE Stephen Mills QC took over as President of the New Zealand Bar Association on 1 October. He succeeded Miriam Dean QC, who completed her term at the end of September. Mr Mills is a member of Shortland Chambers, having joined the independent bar in 2002 and taken silk in 2007. He has been a Bar Association council member since 2004, becoming a Vice-President in 2009 and President-Elect last year. He is a founding director of the New Zealand chapter of LEADR, has been on the faculty of the NZLS CLE Litigation Skills Course since 2009 and has been a member of the SPCA prosecution panel since 2009.
Judge Heemi Taumaunu responds to the AFLANZ welcome onto the Naval Marae.
Lawyer and Army Reserve Officer Peter Brock was elected President of the Armed Forces Law Association of New Zealand (AFLANZ) at its recent annual meeting. Dr Chris Gallivan, acting Dean of the Canterbury University Law School was elected treasurer. AFLANZ held its annual meeting in association with a Colloquium at the Naval Marae at Devonport Naval Base from 31 August to 1 September. Judge Heemi Taumaunu and Judge Charles Blackie, who are both Judges of the District Court and of the Court Martial of New Zealand, attended the Colloquium. Both Judges spoke in response to the welcome onto the Marae. The theme of this Colloquium was Military Discipline in the 21st Century: the challenges of a new era. Discussion and papers presented ranged from a review of military justice in the ADF and NZDF to criminal misconduct by peacekeepers.
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David Jones was reappointed chair of the Takeovers Panel at the end of September for a period of three years. Mr Jones is founding partner of Auckland firm Jones Young. He has been in legal practice for over 30 years. He was appointed to the Takeovers Panel Advisory Committee in 1991 and has been a member of the panel since its formation in 1995.
ON THE MOVE Rachael Reed has commenced practice as a barrister sole at City Chambers, Shortland Street, Auckland. Rachael practises criminal and civil litigation and has particular expertise in fraud. She is experienced in all complex forms of litigation. Rachael is President of the Auckland Women Lawyers’ Association. Marise Allan and Patrick Casey have been made partners of Malloy Goodwin Harford in Auckland. Marise has been with the firm for a number of years, practising principally in the property area, but also advising and assisting private and business clients on a range of trust and commercial matters. Patrick joined the firm in 2010 and practises in the corporate and commercial areas and in intellectual property. Ashton Welsh is joining Cottsport, the specialist sports advisory practice established by Stephen Cottrell, where he will look to provide strategic and legal advice to sports bodies, brands, athletes, TV networks and media companies. After spending several years at Russell McVeagh and in-house at Auckland City Council, Ashton has spent 14 years overseas working in various legal, commercial and event roles for international sports agencies, federations, rights holders, TV networks and media rights companies, including more recently the America’s Cup and Volvo Ocean Race.
PEOPLE IN THE L AW
LAW FIRM NEWS Two law firms were among the winners of this year’s sustainable business network awards. James & Wells won the Northern Region Sustainable Business Network Medium Business (Trailblazer) Award. The firm received its award at a ceremony at Parnell Jubilee Hall on 4 October. The award reflects the intellectual property firm’s ongoing commitment to sustainable business demonstrated by a number of initiatives in the last year. Earlier this year, it announced a new sustainability strategy which includes donating 5% of its fees from “sustainable clients” to coastal clean-up charity, Sustainable Coastlines. The initiative is part of the firm’s Silver Sponsorship of Sustainable Coastlines, which has seen staff collect more than 222kg of waste during beach clean-ups at Ruapuke, Raglan, and Auckland’s Milford Creek and Long Bay earlier this year. At the firm’s second annual
Sharp Tudhope’s new “green” building in Tauranga.
“car free day” in June, staff around the country saved almost 250 km of travel, equating to approximately 47 kg of CO2 emissions. Sharp Tudhope Lawyers emulated the feat in the Bay of Plenty regional sustainability awards. It also took out the Medium Business (Trailblazer) award. Sharp Tudhope’s new “green” building is an iconic addition to
Lawyer receives Queen’s Diamond Jubilee medal
serious mistreatment of animals, both pets and farm animals, will no longer be tolerated. “Ms Killeen’s contribution to the SPCA benefitted not only Auckland communities but also those throughout New Zealand through influencing and galvanising action for the Animal Welfare Act to be amended and reformed, achieving stronger sentences for the wilful and intentional mistreatment of animals.
Auckland lawyer Anita Killeen was one of a select few who received the Queen’s Diamond Jubilee SPCA Volunteer Medal from the GovernorGeneral, Sir Jerry Mateparae, at Government House on 15 October. Ms Killeen, who established a pro bono panel of prosecutors for SPCA Auckland, was honoured in recognition of the volunteer services she has provided to the SPCA. Not only did she initiate the panel, Ms Killeen also manages it. This initiative has made a “significant impact” on the SPCA’s ability to carry out its mission to encourage the humane treatment of all animals and to prevent cruelty being inflicted upon them, says Bob Kerridge, President of the Royal New Zealand SPCA and executive director of Auckland SPCA. As a result of the panel’s work, prosecutions are now able to be taken by New Zealand’s leading counsel at no charge to the SPCA. The cases have also received media attention, which has sent a signal to the wider community that in the future,
Tauranga’s cityscape and the firm contributes significant amounts of time and investment to community causes. Sharp Tudhope received its award at a ceremony in Rotorua on 28 September. All regional winners will compete in their categories in the NZI National Sustainable Business Network Awards on 22 November at The Cloud in Auckland. LT
Anita Killeen and one of her friends at Auckland SPCA.
“We congratulate and thank Ms Killeen for the meritorious volunteer services she (and others) have provided to the SPCA and to the animals of New Zealand whose care and protection we are entrusted with,” Mr Kerridge says. LT
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LAWTALK 807 / 26 OCTOBER 2012
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Chris Moore is the new President-Elect Auckland commercial property lawyer Chris Moore was elected the New Zealand Law Society’s President at the Law Society’s Council meeting on 12 October. Mr Moore will become President in April 2013, succeeding Jonathan Temm who will then have been President for three years. At the time of his election, Mr Moore already held three leading positions in the Society. He is the Auckland branch President, Property Law Section Chair and the Society’s Auckland VicePresident. Mr Moore has been serving the Law Society for well over two decades now. His first foray into Society matters came when he presented a seminar for the former Auckland District Law Society in around 1990. That seminar, on the Resource Management Bill (introduced into Parliament in December 1989), was the first of many he presented both for ADLS and the New Zealand Law Society. Most of the seminars were on building, construction and property law. He has also been in demand as a presenter at industry and professional conferences on aspects of building, construction and property law. When the Law Society’s Property Law Section (PLS) was established in 2000, Mr Moore was a foundation member of the PLS executive. In that role, he worked with the PLS’s first chair, Lindsay Lloyd who, Mr Moore says, did a “brilliant job” in establishing and building the PLS. In April 2003, Mr Moore became the section’s second chair. It is a role he has filled for around 10 years now, and “it is definitely time to step down”, he says. Mr Moore became the first President of the new Auckland branch following the implementation of the Lawyers and Conveyancers Act 2006. Unlike the other areas of New Zealand, where the former district law societies morphed into branches “we had to start from scratch. I’d like to give credit to the staff for the successful
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establishment of the new Auckland branch,” he says. “We could not have achieved what we did without that significant input from our dedicated, innovative and superb staff.” On 13 April this year, he was elected the Law Society’s Auckland Vice-President at the annual Council meeting. A partner of Auckland firm Meredith Connell, Mr Moore has more than 30 years’ experience in commercial and commercial property law. His early years in practice were quite different, however. After 2½ years in general practice, he moved to Whakatane, where he worked for the firm now known as Hamertons Lawyers Ltd.
“
the Law Society presidency presents a new set of challenges... I am really looking forward to that.
”
CHRIS MOORE That role saw him practising over a wide range, including small corporate, property, licensing tribunal and criminal litigation. He became a partner of the firm during his eight years with them. “I loved my time in the Bay of Plenty. It was fantastic. It was hugely beneficial in terms of getting a wider perspective of the law. “But I wanted to specialise in commercial property and unfortunately I couldn’t do that in Whakatane. “So, having been a partner for at least five years, I dragged my wife and young family up to Auckland and joined Russell McVeagh as a staff solicitor. “I took a huge risk, an enormous risk at the time. I took a significant drop in pay and a significant increase in liabilities.”
But it was what he wanted to do, and the risk paid off. After 2½ years, he was made a partner, continuing his move through the ranks, which would see him become chair of the firm’s commercial property department. When he left Russell McVeagh in 1999, it was to fulfil another of his life aims. “My brother Simon and I always wanted to practise together,” he explains. Simon Moore is a Crown prosecutor with Meredith Connell, so Chris Moore moved to the firm in 1999. However, the firm’s practice at that time was almost exclusively criminal. “They gave me the opportunity to develop a commercial property practice.” That was an opportunity too good to miss, so Mr Moore made the move, set up and then built up Meredith Connell’s commercial real estate group. Today it is one of the largest in New Zealand. In fact, “we’ve had massive growth in the firm over the last seven years.” He was also elected onto the firm’s board, and was its chair for five years during the period of significant growth. “It’s been great fun for me and it’s been wonderful practising with Simon. Although we practise in different areas, we think similarly.” Mr Moore is married to Heather, a practising naturopath, and they will be celebrating their 35th wedding anniversary later this year. They have three children, two of them in the law. Daughter Sarah is a litigator with Haigh Lyon in Auckland, while son George was admitted just this month – on 19 October in Auckland. He is a commercial property lawyer with Chapman Tripp in Auckland. Their other son, Tom, is a marketer who works with a large food retailer in London. Mr Moore has a wide variety of interests, from reading and spending time with family and friends to sporting interests, which include running, swimming, tennis, windsurfing and snowboarding. Having risen to a variety of challenges in his professional and Law Society roles “the Law Society presidency presents a new set of challenges,” he says. “I am really looking forward to that.” LT
LAW REFORM REPORT Law Society opposes the Register of Pecuniary Interests of Judges Bill The New Zealand Law Society says the proposed Register of Pecuniary Interests of Judges Bill should not proceed. “A register of judges’ pecuniary interests is unnecessary as the existing law relating to judges’ conflicts of interest is adequate,” Law Society spokesperson Jason McHerron told Parliament’s Justice and Electoral Select Committee. “The Law Society does, however, agree that the courts should establish more transparent procedures for the disclosure of judges’ potential conflicts of interest and when this should lead to judges not sitting in particular cases.” The Bill is intended to enhance public confidence and protect the impartiality and integrity of the judicial system, but the Law Society says the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 already fulfils
Recent submissions: The Law Society has recently filed submissions on: • the Commerce (Cartels and Other Matters) Bill; • proposed registration of .nz domain names at the second level; • Disclosure of Equity Derivative Positions (Takeovers Panel consultation); and • Lobbying Disclosure Bill. The Law Society addressed the Justice and Electoral Select Committee on 27 September 2012 in relation to its submission on the Register of Pecuniary Interests of Judges Bill. The submissions are available at http://www.lawsociety. org.nz/publications_and_ submissions/submissions.
this role. Members of Parliament and Cabinet Ministers are required to provide statements of their pecuniary interests. However the Law Society says the same principle should not apply to the judiciary. “The three branches of government have significantly different roles to perform. Judges’ current disclosure obligations are primarily for the benefit of parties to the particular dispute the judge has to resolve. “Disclosures by politicians need to be made more generally to the public at large as they are mainly making decisions that affect the whole community. The Law Society says there will be negative flow-on effects if the Bill is enacted. “The information contained in the kind of register the Bill proposes could be used, or abused, for other purposes, including as the basis for harassment by disgruntled litigants,” Mr McHerron says. The Law Society submission says if a judge’s pecuniary interests or financial conduct are publicly criticised or attacked, the convention is that he or she does not publicly respond, unlike a politician who can mount a public defence through the media. The Law Society says what is needed is a well-understood and publicly available set of procedures that operate where a judge or litigant considers that recusal may be necessary. “Currently procedures are not always well understood, and in the past they have been inconsistently applied.”
Internet – adequacy of second level domain names consultation paper questioned The Law Society has questioned whether the consultation and policy evaluation undertaken so far on
registration of .nz domain names at the second level has been sufficiently rigorous. In its comments on the Domain Name Commission consultation paper, Proposed Registration of .nz Domain Names at the Second Level, the Law Society notes that the paper says public opinion surveys have indicated that the general public’s “appetite for change” has grown. However, the paper provides no information about those public opinion surveys. The Law Society also points out that while the consultation paper refers to “New Zealand’s internet community”, the term is never defined. It is therefore difficult to be satisfied that a representative sample of the public has been consulted. The Law Society recommends engagement of an independent market research company to undertake further qualitative and quantitative research. Provision of more information on how other jurisdictions’ registration systems operate is also recommended. “A general statement that other countries operate such structures is not in itself sufficient reason for New Zealand to adopt .nz domain names at the second level,” the Law Society says. The Law Society says it is concerned that the negative impact of the proposals on brand owners may not have been adequately considered. It says businesses typically invest significant time and money in protecting their brands through trade mark and domain name registrations. “The Law Society believes that it is appropriate that the particular interests and status of owners of registered trademarks are recognised and catered for.
Legal Aid funding The Law Society has welcomed a number of the proposed changes to the Legal Assistance (Sustainability) Bill announced by Justice Minister Judith
LAWTALK 807 / 26 OCTOBER 2012
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LE T TERS TO THE EDITOR
Reality worse than data suggests We write in relation to your article on New Zealand Legal Aid Providers in LawTalk 805, in particular your chart showing Legal Aid Providers (LAPs) around New Zealand. Listed on the MoJ website are 12 family LAPs for Marlborough. Community Law Marlborough conducted a survey of the 12 family LAPs. Nine lawyers responded to confirm their listing, but of these only four are currently accepting family legal aid assignments. This number will drop to one and a half from Christmas 2012. To the best of our knowledge none of the three who did not respond are currently accepting assignments either. Some listed lawyers are prepared to act in a supervisory role for other LAPs, but not to directly accept assignments themselves. For family law clients in Marlborough, the reality is worse than one may infer from the data, and translates into great difficulty in finding legally aided representation for our clients. Gordon Strang Manager, Community Law Marlborough
Maori Leadership in Law Scholarship established The Māori Leadership in Law Scholarship, in memory of Jolene Patuawa-Tuilave, was launched at the inaugural World Indigenous Peoples Lawyers Conference at Vilagrads Winery in Hamilton on 7 September. Te Rūnanga o Ngāti Whātua and Otago University have established the new scholarship, in conjunction with Jolene’s whānau, as a legacy to Jolene and to encourage and enable young Māori students, particularly those of Ngāti Whātua descent, with leadership qualities and a passion for law to follow their dreams through the study of law. It is the first of its kind at Otago University. Jolene became well known to many New Zealanders following media reports about her brave decision to choose the life of her baby over treatment for cancer. On her 30th birthday in 2006, Jolene was diagnosed with breast cancer, which disappeared following treatment. In 2009, within days of learning she was pregnant with a son, she was told that the cancer had returned. Doctors said she needed treatment to survive, theft, assault or careless driving;
Collins on 9 October. Original proposals in the Bill – which was introduced to Parliament in August 2011 – included limiting eligibility for legal aid, the reintroduction of user charges for some family and civil legal aid cases, and charging interest on legal aid debts.
•
retaining the current definition of disposable capital in the means test. The proposed change is intended to simplify the assessment process – not to reduce eligibility;
•
keeping the existing approval frameworks for lawyers who can provide lawyer for the child and youth advocate services, rather than creating new criteria and standards; and
•
retaining the list of types of proceedings eligible for legal aid in the Legal Services Act. This means changes to the list must be made by Parliament, rather than the Executive.
The minister’s proposed changes to the Bill reflect a “more moderate approach to reforming the legal aid system”, and include: •
reducing the proposed user charge for civil and family cases from $100 to $50;
•
changing the point at which legal aid debts will begin accruing interest. Interest will now be imposed six months after the total debt is finalised, rather than immediately;
•
16
removing the proposal to tighten the financial means test for less serious criminal cases, such as
LAWTALK 807 / 26 OCTOBER 2012
Additions to the Bill will also be made, including measures reflecting the Government’s view that people have an obligation to repay legal aid debts. The changes are included in a Supplementary Order Paper that
but they could not treat her if she was pregnant. Jolene died on 26 June 2010, when her son, Lui, was just 10 weeks old. Although this made her well known to many New Zealanders, Jolene was already well known in legal circles as a prominent Māori lawyer. Of Scottish, Ngāti Rangiwewehi, Te Uri-o-Hau, Te Roroa, Ngāti Torehina, Ngāpuhi and Ngāti Whātua descent, she was an inspiration to many and an indefatigable advocate for Māori rights. At the time of her death, Jolene was copresident of Te Hunga Roia Māori (the Māori Law Society), which organised the World Indigenous Peoples Lawyers Conference. During her time as a student at Otago University, she was a Tumuaki of Te Roopū Whāi Pūtake. Then as a lawyer, she met with and mentored Otago law graduates, in particular Māori law graduates. People can support this scholarship at https://secure-www.otago.ac.nz/ alumni/donations/. LT
will be referred to the Justice and Electoral Select Committee. The select committee will also be asked to rename the Bill as the Legal Assistance Amendment Bill.
Coming up The Law Society is currently preparing submissions on numerous bills and government discussion documents. Members are welcome to contribute comments to the Law Reform Committee, specialist committees and sections preparing the submissions. For a full list of upcoming submission deadlines and information about how to participate, visit http:// my.lawsociety.org.nz/law_ reform/work_in_progress. For more information on NZLS law reform activities, contact vicky. stanbridge@lawsociety.org.nz.
LT
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* As an encouragement, all surveys returned before 5pm on 9 November 2012 will go into a draw for one of two 16GB Apple iPod Touch devices. We need a way of contacting prize winners and have included a place to record details at the end of the survey. This information will be clipped from the survey form on receipt and will be used solely as an entry into the draw. You may also send the survey in without any details, of course.
LAWTALK 807 / 26 OCTOBER 2012
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• R EA DE RSH IP SURV E Y 2 012 •
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LAWTALK 807 / 26 OCTOBER 2012
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• R EA DE RSH IP SURV E Y 2 012 •
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LAWTALK 807 / 26 OCTOBER 2012
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STAPLE
LAWTALK 807 / 26 OCTOBER 2012
New Zealand Law Society PO Box 5041 Lambton Quay Wellington 6145 Freepost authority number 232155 FOLD
If you would like your name and contact details to be entered into a draw for one of two $100 16GB Apple iPod Touch devices, please record these below. We will clip this information on receipt of your readership survey. Name: Contact (Address or email):
EFFECTIVE PRACTICE Salary survey shows steady progression by experience The New Zealand Law Society/Momentum Legal Salary Survey 2012 has been released. Results show that after working in private practice for nine years, the average lawyer can expect to have doubled his or her salary. First held in 2011, the July 2012 survey received 2,117 responses. This was just under 20% of all lawyers in New Zealand and therefore gives a robust view of current salary trends. The analysis focused on lawyers who were employees, as most respondents were employed lawyers, either in private practice (72% of all respondents) or in-house.
Lawyers employed in private practice Lawyers in private practice who had been admitted in 2011 or 2012 had a trimmed mean annual salary of $45,090. This is the average salary with the bottom and top 2.5% of values removed. The central range (where the middle 80% of results fall) was $35,000 to $55,000.
1&2
2012 & 2011
Central Range* $35,000 - $55,000
(Admission in)
Trimmed Mean
1&2
2012 & 2011
18.3%
3
2010
17.8%
4
2009
16.5%
5
2008
15.0%
6
2007
12.8%
7
2006
9.3%
8
2005
8.2%
9
2004
9.2%
10+
<2003
10.3%
*Of lawyers who received a salary increase.
Information on private practice benefits showed that over three-quarters of respondents were receiving a particular benefit as part of their employment remuneration. The results showed that the longer someone had been working, the higher the likelihood that they were receiving additional benefits.
Benefits received by employed lawyers in private practice* Benefit
Respondents receiving 55%
Health support (eg, flu injections)
34%
Mobile phone
30%
Carpark
27%
Professional memberships
26%
Working from home flexibility
24%
Work hours flexibility
23%
Bonus
18%
Trimmed Mean**
Gym membership
15%
$45,090
Health insurance
14%
Annual Salary: Private Practice, all locations, firm sizes and practice specialities (Admission in)
Year
KiwiSaver/Superannuation contribution
By the ninth year after admission (2004 for lawyers who have been in constant work), the trimmed mean had grown by 99.5% to $89,941. The central range was $55,000 to $140,000.
Year
Average Private Practice Salary Increases in past 12 months*
3
2010
$40,000 - $68,000
$54,162
*Excludes directors and partners.
4
2009
$45,000 - $84,600
$63,756
5
2008
$48,400 - $94,800
$70,869
6
2007
$46,600 - $112,000
$75,273
7
2006
$58,100 - $115,300
$83,084
Lawyers employed in private practice received an average of 4 weeks annual leave per year. There did not appear to be any significant relationship between length of service and annual leave entitlement.
8
2005
$52,100 - $131,600
$88,530
9
2004
$55,000 - $140,000
$89,941
10+
<2003
$60,000 - $175,000
$104,586
*This shows the middle 80% of results.
Of those who responded, 14% of lawyers employed in private practice received parental leave benefits which were over and above the statutory minimum.
**This is calculated by removing the bottom and top 2.5% of values from the data.
In-house lawyers
Of lawyers in private practice who responded to the survey, 65% had received a salary increase in the past 12 months. Of the rest, 30% had no change and 5% had a decrease in their salary.
The survey sample for in-house lawyers was very skewed towards those with over 10 yearsâ&#x20AC;&#x2122; experience. It is believed this is reflective of the market, with in-house lawyers tending to be more experienced.
Of those who received a salary increase, the trimmed means for each year were as follows:
The information was organised by in-house private sector (lawyers employed by a privately-owned business or corporation) and in-house public sector (lawyers employed by central and local government, industry associations, unions and not-for-profit organisations).
LAWTALK 807 / 26 OCTOBER 2012
21
EFFECTIVE PR ACTICE Remuneration of in-house lawyers in the private sector who had been admitted from 1-9 years ago appeared to be relatively higher on average than lawyers working in private practice. However, there was a larger spread of salary, with factors such as size of company, business sector, size of legal team, area of practice and location being influential.
Annual Salary: in-house lawyers Year
The information from the survey on in-house benefits indicated that financial benefits were more common within the private sector than the public sector.
Benefits received by in-house lawyers Benefit
Private Sector
Public Sector*
KiwiSaver/Superannuation contribution
71%
75%
Mobile phone
71%
30%
Bonus
66%
3%
Health support (eg, flu injections)
59%
51%
Working from home flexibility
48%
25%
45%
50%
Central Range*
Trimmed Mean**
1 – 3 (Public Sector)
$40,746 - $80,277
N/A
4 – 6 (Public Sector)
$52,000 - $116,000
N/A
7 – 9 (Public Sector)
$63,550 - $136,000
N/A
10+ (Public Sector)
$73,709 - $165,000
$115,468
Work hours flexibility
10+ (Private Sector)
$99,800 - $200,500
$140,686
Health insurance
33%
10%
CLANZ membership
30%
16%
Other professional memberships
28%
27%
Carpark
26%
13%
Gym membership
11%
10%
10+ with staff responsibilities (Private Sector)
$127,000 - $362,000
$201,488
Chief Legal Advisor (Public Sector)
$150,700 - $312,600
$186,945
General Counsel (Private Sector)
$122,000 - $600,000
$267,398
*This shows the middle 80% of results. **This is calculated by removing the bottom and top 2.5% of values from the data.
*Excludes SOEs, Crown Entities and statutory authorities.
Of in-house lawyers who responded to the survey, 69% of private sector lawyers and 58% of public sector lawyers had received a salary increase in the past 12 months. Of the rest, 28% of private sector and 38% of public sector had had no change.
In-house lawyers in the private sector received an average of 4 weeks annual leave per year, while lawyers in the public sector received an average of 4.2 weeks.
Average in-house salary increases in past 12 months* Sector
Trimmed Mean
Public
7.6%
Private
5.6%
*Of lawyers who received a salary increase.
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In-house lawyers appeared to receive slightly better parental leave, with 20% of private sector and 18% of public sector lawyers receiving parental leave benefits which were over and above the statutory minimum.
Employment satisfaction Of those who responded to the survey, 74% said they enjoyed working for their current employer. A further 9% were neutral about their employer. While employer satisfaction was generally high, 27% of respondents said they were considering leaving their current organisation within the next 12 months. Asked for their two main reasons for leaving, 63% said promotion or career development, 37% said dissatisfaction with their current organisation, 31% said dissatisfaction with remuneration and 28% said travel. Those who had been working with the same organisation for between 2 and 4 years and 6 and 8 years were relatively over-represented among those who were considering leaving. Asked about remuneration, 31% agreed strongly and 28% slightly agreed that they were fairly remunerated for their work. On the other side, 28% strongly disagreed or slightly disagreed that they were fairly remunerated for their work.
Survey results A full report on the results of the survey is available for Law Society members at http://my.lawsociety.org.nz/in_ practice/practice_management/human_resources_ and_remuneration. LT
$110 based on a normal 60min session Currently this Face to Face service is only available in person in the Auckland region. Other regions will be introduced throughout 2013. Skype Face to Face counselling applies throughout New Zealand. Please contact Lifeline Counselling on face2face@lifeline.org.nz or phone 09 909 8750
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LAWTALK 807 / 26 OCTOBER 2012
Prizes won by survey respondents Respondents to the New Zealand Law Society/Momentum Legal Salary Survey 2012 were offered the opportunity to enter a draw for one of three 16GB iPod Touch devices if they responded by the closing date. Those who won the prizes were Greg Brogden (Canterbury District Health Board), Kieran McAlpine (Greenwood Roche Chisnall) and Mike Birchler (Public Trust).
PROFESSIONAL DEVELOPMENT
Seminars on a most important task Is a Segway a “motor vehicle” for the purposes of the Land Transport Act 1998? Can being on a deck of a house be “an unlawful presence in a dwelling place” under the Sentencing Act 2002? Does “any” include “all”? Does a purpose clause of an Amendment Act have effect independently of the amendments made by that Act? Can Cabinet papers or submissions to select committees be relied on to strengthen interpretation arguments? What are the presumptions against confiscating property and of consistency with New Zealand’s obligations under international law? Is there a right way to apply the Bill of Rights?
Ross Carter and Jason McHerron
Lawyers constantly confront these kinds of questions.
skills make him, Mr Carter says, “irreplaceable”.
Australia’s Chief Justice French recently called Australia’s legal system “a statutory universe”. Legislation is, in Francis Bennion’s words, “the framework for almost everything lawyers do”.
“But we do bring our current perspectives, in my case, from legislative drafting, and in Jason’s, from courtroom advocacy.”
It is therefore no exaggeration to call statutory interpretation “lawyers’ most important task”, as has former Australian High Court Justice Michael Kirby. The law on the drafting, publication, and revision of legislation is being updated via the Legislation Bill that is currently before Parliament. Statutory interpretation was last addressed in a NZLS CLE Ltd seminar by Emeritus Professor John Burrows QC in 2008. It is also three years since the 2009, fourth edition of Burrows and Carter Statute Law in New Zealand. This year’s NZLS CLE Ltd seminar, Statutory Interpretation – a 2012 guide, offered a timely refresher on a topic of central importance. Seminars occurred in Dunedin on 1 October, in Christchurch 2 October, by webinar on 8 October, in Wellington 8 October and in Auckland on 9 October. Parliamentary Counsel Ross Carter and barrister Jason McHerron, both of Wellington, led the seminars. Professor Burrows QC’s unmatched expertise and communication
The main theme was that finding the proper legal meaning of legislation is like solving a puzzle in which “all the pieces matter”. All the relevant law and practice of interpretation should be considered and used. The booklet includes a crossword reinforcing the key points. Lord Wilberforce famously called statutory interpretation a “non-subject”. He also said that it is “too broad and deep and variegated a topic to be encapsulated in any single theory”. Mr Carter agrees the cases sometimes show result-oriented reasoning: “The Irish Law Reform Commission called this ‘judicial a-la-cartism’.
the topic”, says Mr McHerron, “under the main headings of text, purpose, context, and values. We agree with Justice Frankfurter’s assessment that ‘the answers to problems of the art of statutory interpretation are in its exercise’. “We’ve therefore analysed and discussed recent New Zealand cases to illustrate trends and developments”. Both presenters have been delighted at the interest in the seminars. “We’ve had really thoughtful engagement from colleagues across the country,” says Mr Carter. A light-hearted highlight is Mr McHerron’s “educational video, a tale from the New Zealand Law Reports”, summarising the Carriage of Goods Act 1979 case Ports of Auckland Ltd v Southpac Trucks Ltd. Damage caused to a Kenworth truck by a wayward forklift is depicted using die cast toys (pictured).
“It also pointed out that differences of judicial approach are not unique to statutory interpretation, and ideally the same problem should be resolved in the same way using the same materials.
“We were working within a very limited special effects budget”, said Mr McHerron. The video’s conclusion is that the damage to the truck would “result in litigation for years to come”.
“Those materials include the Interpretation Act 1999 and the New Zealand Bill of Rights Act 1990, which are binding, not merely optional. Even so, they can be displaced by express contrary provisions or context, and can involve broad value-based assessments or evaluations.”
“Statutory interpretation is”, Mr Carter says, “a complex topic. Our main aim is to give an up-to-date guide to the key factors. We aim to help participants identify and use them in particular cases, to develop and strengthen their arguments.”
“Our booklet and presentation deal with
The seminar booklet is available online at www.lawyerseducation.co.nz. LT
LAWTALK 807 / 26 OCTOBER 2012
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BRANCH NEWS WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869
Principal Family Court Judge farewelled The Family Law Section and Wellington branch jointly hosted a dinner to farewell Judge Peter Boshier as Family Court Judge. The dinner was held at the Wellington Club on 5 October, and was attended by a good selection of family lawyers, including both the Family Law Section chair Garry Collin and deputy chair Catriona Doyle.
Rex Mason literary award Supreme Court Judge Sir William Young presented the Rex Mason literary award for a work published in 2010 to Hamish McQueen at a ceremony on 10 October.
At the Wellington dinner that farewelled him as Principal Family Court, Judge Peter Boshier flanked by Family Law Section chair Garry Collin (left) and the section’s deputy chair Catriona Doyle.
Wellington branch President Mark Wilton hosted the ceremony. This award was recently re-established, to become an annual award for legal writing. The first recipient of the re-launched award was Richard Boast, for the 2009 year. The award is made in honour of Henry Rex Mason, a lawyer and one of New Zealand’s longest-serving Members of Parliament, having been an MP for just over 40 years. Mr Rex Mason graduated MA (Hons) in maths before going on to complete an LLB. He practised in Wellington and Eltham before moving to Pukekohe, where he became Mayor in 1915. He became an MP on 15 April 1926, after winning the Eden seat in a by-election. He served as AttorneyGeneral, Minister of Justice, Minister of Education, Minister of Native Affairs and Minister of Health in Labour Governments. Mr Rex Mason’s sister approached the Wellington District Law Society in the early 1970s with the idea of setting up a trust and instituting an award in memory of her brother. Sir William and Victoria University Law Dean Professor Tony Smith were two of the award judges.
WHANGANUI NEW ZEALAND LAW SOCIETY NZLS EST 1869
Dinner to honour John Rowan QC The Law Society’s Whanganui branch will honour lawyer John Rowan QC, who is retiring early next year, at a bar dinner on 16 November. After graduating from Canterbury University in law and arts, Mr Rowan worked as a solicitor in Hamilton before moving to
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LAWTALK 807 / 26 OCTOBER 2012
At the presentation of the Rex Mason literary award (from left) Sir William Young, Hamish McQueen, Professor Tony Smith and Mark Wilton.
Whanganui in 1968 where he still lives and practises today. His long involvement with Law Society affairs included being President of the Wanganui District Law Society from 19851987 and New Zealand Law Society VicePresident from 1990-1992. He is also a past member and chair of the New Zealand Law Practitioners Disciplinary Tribunal.
John Rowan QC
He served as a commissioned officer in the Territorial Army during his early years, subsequently being appointed as Legal Staff Officer to the Waiouru Camp Command, and then as a Judge Advocate for almost 20 years presiding over CourtsMartial hearings for the New Zealand Defence Force. Mr Rowan has also had a high level of community involvement, both in New Zealand and overseas. In 2000, for example, he became involved in a project to establish a coeducational school in Ngara, in western Tanzania. The school opened in 2007 with 90 form 1 students. Within four years, the roll had risen to 350.
BR ANCH NEWS His name became very high profile when he took a landmark private murder prosecution against Police Constable Keith Abbott. Steven Wallace was shot by Constable Abbott in an early morning incident in Waitara in 2000. Mr Rowan prosecuted, as lawyer for Steven Wallace’s father Jim and the Wallace family. Mr Rowan edited the Legal Aid Handbook, published by Thomson Reuters in 2011. He and Judge Chris Harding were co-authors of the 1997 looseleaf Brooker’s Legal Services, also published by Thomson Reuters. Mr Rowan has been a great mentor and leader to young practitioners (and some not so young) in Whanganui. In fact, many lawyers in New Zealand have benefitted from his wisdom and guidance over the years.
AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869
Key to the Store More than 130 attended the Auckland Young Lawyers and Young Accountants Group “Key to the Store” event with The Department Store on 10 October. The event was held at The Department Store, Takapuna. More information about the venue is at http://blog. thedepartmentstore.co.nz/about/#more-2. “Key to the Store” was a night of networking for young lawyers and accountants in the Auckland region plus retail therapy and workshops on hair and beauty, men’s grooming and fashion looks for summer.
Two of the sponsors of the "Key to the Store" event, Karen Walker (left) and Lucy Marr.
The workshops focused on providing practical tips for timeshort young professionals who want to look their best without fuss. Dion Nash spoke to the men about his latest business venture, skincare range Triumph & Disaster, while Karen Walker and her team led the women through key looks for the upcoming season. Sponsors of the event were The Department Store, Karen Walker, Stephen Marr, Lucy and the Powder Room, Soho Wine Co and Thomson Whisky.
MANAWATU NEW ZEALAND LAW SOCIETY NZLS EST 1869
Correction In LawTalk 805 (28 September 2012, pp21-22), we printed an item about long-serving lawyer Philip Comber being farewelled from the profession at the Levin Club on 4 September. In that item, we incorrectly stated that Mr Comber is the Manawatu District Inspector of Mental Health. He relinquished that role about 10 years ago. Mr Comber is one of the lawyer members of the Mental Health Review Tribunal, having recently been reappointed for a further three-year term. LT
Enjoying retail therapy at The Department Store, Shehani Fernando (left) and Susan Giles.
LAWTALK 807 / 26 OCTOBER 2012
25
Finding the right e-discovery software By Andrew King* E-discovery software is becoming an essential part of any litigator’s toolkit. Deploying suitable software will be an advantage for anyone tackling discovery under the new rules. E-discovery software has matured from the days when it was primarily designed to handle scanned documents, but this brings many more factors to consider.
Options A common misconception in the legal profession is that e-discovery software is always expensive and only suitable for large matters. This does not have to be the case, as there are many options available (some from as little as a few dollars a month). It is just a matter of finding the e-discovery software to suit your individual requirements. Suitable software is available for those who predominantly deal with matters with small document volumes or have infrequent discovery. For many smaller firms that do not have the resources to throw at a problem, more effective use of technology can give them a significant competitive advantage in managing discovery exercises. Independent advice to understand the specific requirements of a firm can be invaluable to assist in finding suitable e-discovery software.
Products can talk to each other Gone are the days when firms had to deploy the same piece of software. Over the years a firm would purchase a product solely because others had that product. This is no longer the case as there are many options available, with all products able to talk to each other and all should be able to facilitate a smooth transition of data. The new discovery rules do not favour any product over another. Find a product that suits your requirements, instead of changing your requirements to what a product is capable of. Technology evolves, requirements of firms change, so the flexibility to be able to move to software that suits the requirements of a matter is essential. Some organisations learn this the hard way as they have invested in particular technology, which has been surpassed. As the firm may have made a considerable investment in a particular product, they shape their practice
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LAWTALK 807 / 26 OCTOBER 2012
around the technology as opposed to using the right product to suit their evolving practice requirements.
all” approach with e-discovery software, as some have different strengths (and weaknesses) from others.
In-house v hosted
Independent advice to assess your exact requirements, explaining the benefits and limitations of each product, can be valuable to assist you to find the right software.
Historically law firms looked to deploy e-discovery software in-house, as they wanted to keep control of the entire discovery process. This model is now changing, largely due to the greater options available and more competitive pricing to outsource this work. This frees up law firms to focus on legal work. To effectively operate e-discovery software in-house it is important to invest in the right technology and have dedicated internal resources with the necessary expertise to run the software. Benefits of an in-house model include: • more control over the process; • price saving over time; and • familiarisation with an existing product. A hosted model is essentially an “On Demand” service where you only pay for what you need and when you need it. The impact of hosted products has introduced many more options for those conducting electronic discovery. Hosted software is becoming an increasingly popular model for firms that may not have large matters, or the internal resources to support a product. Also when a larger matter arises, they have the option to shift. Benefits of a hosted model include:
It is important to acknowledge the advantages of more sophisticated technology and the benefits it can bring, but the sophisticated options will not be required on all matters. Part of the new discovery rules is to try and be more proportionate and come up with strategies to get to the important information. The more powerful tools with advanced features will be able to trawl through large volumes of electronic information and cull irrelevant material more effectively than some of the basic tools. The basic rule of thumb is, as the document volumes increase then so will the need for more powerful e-discovery software. Most smaller matters probably will not require the benefits of predictive coding, email threading or near duplicate analysis, but they will benefit from having a platform that can assist in managing documents efficiently and cost effectively. If you have an e-discovery product, it is important to regularly keep up with the options available. The e-discovery landscape is dramatically changing, with many new products with new features emerging all of the time.
• pay only for what you use; • hosting costs can be passed onto the client as a straight disbursement; • no internal IT infrastructure burdens; • accessibility – all that is required is an internet connection and a web browser; • security – multiple levels of security to ensure the data can only be accessed by those who have the required authorisation; and • flexibility to change products.
At the conclusion of each matter it can be useful to evaluate “what worked well”, “what did not work so well” and also a “wish list of further functionality” that may be beneficial. This knowledge can assist to evaluate if alternative e-discovery software may be more suitable.
One common trend in the market is the shift away from firms investing in inhouse software.
* Andrew King is a litigation support consultant at E-Discovery Consulting. Andrew was a member on the working group of High Court Rules Committee which introduced the new electronic discovery rules. Contact: andrew. king@ediscovery.co.nz or 09 375 3055.
Requirements It is important to understand your exact requirements. There is no “one size fits
There is no one right approach, but it is important to get independent advice to help you make an informed decision on the right software for you.
THE BOOKSHELF BOOK OF THE MONTH
Courtroom Procedure in New Zealand: A Practitioner’s Survival Kit, 4th Edition By James O’Donovan
The author shares the benefit of his long experience as both counsel and judge in New Zealand courtrooms. The book is aimed at new practitioners and provides many useful practical suggestions on “the business of appearing in court” along with wise advice on what to do if things don’t go according to plan (eg, if your client enters a plea against your advice or if the judge makes an error). (CCH New Zealand Ltd, September 2012, 978-0864759-86-3, 127 pages, paperback, $80.50 (GST incl, p&h excl)).
Negotiating by the Light of the Law By Matt Harvey, Maria Karras and Stephen Parker Subtitled “A report on the effect of law on the negotiation of disputes”, this book reports on a project where researchers tested claims made about the relative merits of fixed rules and discretionary principles on negotiation in legal disputes. The findings assist with deciding whether more or less discretion is conducive to settlement, and into the ways lawyers negotiate. (Themis Press, September 2012, 978-1-921113-06-2, 112 pages, paperback, AU$74.95). The Art of Justice: The Judge’s Perspective By Ruth Herz
An Introduction to Transnational Criminal Law By Neil Boister Professor Neil Boister of Canterbury University looks at the response to cross-border criminal activity through a combination of international treaty obligations and national criminal laws. The book analyses the establishment of jurisdiction over crimes such as piracy, terrorism and drug trafficking and the various ways in which it can be enforced. (Oxford University Press, September 2012, 978-0-199605-38-5, 352 pages, hardback, $185.99).
French appellate Judge Pierre Cavellat sketched his courtroom and the participants over a 40-year career. The resulting drawings and paintings give a unique insight into how a judge perceived his profession and the courtroom. The author, a former judge herself, interprets Cavellat’s images through her own judicial experience, exploring how judges think and act. (Hart Publishing, September 2012, 978-1-849461-27-6, 128 pages, hardback, £35).
Maori Law Review re-launched A new version of The Māori Law Review was launched at Victoria University on 3 October. The re-launched review will be coedited by Victoria University lecturer Carwyn Jones and Crown Counsel Craig Linkhorn.
@mylawsociety
Complementing the editorial team is Victoria University senior lecturer
Māmari Stephens, Māori Land Court Judge Craig Coxhead, Otago University senior lecturer Jacinta Ruru and Tom Bennion, lawyer and founding editor of The Māori Law Review. A monthly review of law affecting Māori, the publication is supported by Victoria University’s Law Faculty and the Office of the Pro-Vice Chancellor (Māori). The review was started by Mr Bennion in 1993, when there was no regular reporting of Māori Land and appellate court judgments, or of Waitangi Tribunal reports. “The review was intended as a regular updating service following on from the then-Chief Judge of the Māori Land Court’s series of case notes,” Mr Bennion says. “It also had an additional and broader aim, which was to chart the ways in which law in New Zealand is distinctive because of its Māori element. It was an attempt to record the development of our bicultural legal system.” A 12-month subscription to the print version is $228 (plus GST), online $252 (plus GST) and a print plus online subscription is $300 (plus GST). Special student rates apply.
Competition Law updating service begins CCH New Zealand Ltd has released an updating service for the 2010 JF Northey Memorial Book Award winner New Zealand Competition Law and Policy. The service is available in an online or looseleaf version. Both formats have an annual subscription of $895 (plus GST) with the online updated as events happen and the looseleaf updated four times a year. Author Matt Sumpter is a partner with Chapman Tripp and a law lecturer at Auckland University. Contributions by James Mellsop, Director of NERA, and Meredith Connell Associate Ben Hamlin are also included. The service includes key legislation and Commerce
LAWTALK 807 / 26 OCTOBER 2012
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Conference to review regulatory reform work SUPPORTING INDEPENDENT LEGAL THINKING
Experts in effective regulatory practice will gather at a special conference in Wellington early next year to review work produced by the Law Foundation’s flagship Regulatory Reform Project. The conference will be an opportunity for experts to contribute their views on the project team’s final output, a “regulation toolkit,” before it is finalised and made available to everyone interested in regulation in New Zealand, including policymakers, businesses, and the public. The multi-year project, centred at Victoria University’s Law Faculty, is tackling issues of critical importance to New Zealand. The project’s toolkit will comprise in-depth research and straightforward guidance on key regulatory issues – work that could potentially make a major contribution to the economy. Victoria University academics and researchers, led by Professor Susy Frankel, have worked with NZIER economists and lawyers from Chapman Tripp on the project for the past two years. The independent project has been endorsed by government ministers, and the research team has sought views throughout from relevant government agencies, business people and others.
Commission cases, and two new chapters on the criminal law aspects of competition have been added.
Adams on Criminal Law Service celebrates 20 years Thomson Reuters recently celebrated the 20th anniversary of publication of the third (looseleaf) edition of Adams on Criminal Law with a special lunch for authors and consulting editor Sir Bruce Robertson. Sir Bruce’s 20 years as consulting editor is the longest for any New Zealand Thomson Reuters publication. LT
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The government interest reflects the importance of this work. At a broad level, regulation isn’t a headlinegrabbing subject, but regulations affect the cost, quality and safety of virtually everything we use and consume. Poor regulation can have disastrous consequences, as evidenced by the global financial crisis and, closer to home, the leaky building crisis. In March this year, the team’s essay collection Learning from the Past: Adapting for the Future: Regulatory Reform in New Zealand was launched. The book draws out specific learnings from New Zealand’s regulatory experience. Issues covered include competition law, tax avoidance, property rights, intellectual property rights, consumer law, consumer credit regulation, regulatory failure in the building industry, trans-Tasman integration, and public participation in regulatory processes and trade agreements. Since then, the team has held two series of workshops. The first led to a further essay collection that answers questions raised in the first volume and provides further insights. Those essays will be published as a book in early 2013. A second workshop series developed four broad themes that link the research work and form the basis of the toolkit. They are: •
monitoring and evaluation of regulation;
•
certainty and discretion in regulatory outcomes;
•
experimentation and learning as regulatory concepts; and
•
New Zealand’s uniqueness and its impact on regulation.
While we can learn lessons from overseas, New Zealand’s regulatory framework has to suit our own circumstances. It must take account of factors like our small population, our open, trade-dependent economy and the relatively small size of most of
Lynda Hagen
our businesses. But at the same time, global connectedness is key to New Zealand’s interests. The project’s work will be presented and debated at the February conference. The project team is keen to hear a wide range of views to ensure the toolkit’s guidance and proposals are thoroughly tested. I encourage everyone with an interest in effective regulation, including legal practitioners, academics, business people and officials, to attend the twoday conference, scheduled from 28 February-1 March at Pipitea Campus, Victoria University. For details and further enquiries, contact susy.frankel@vuw.ac.nz The Regulatory Reform project was a Law Foundation initiative, and we’re proud to be associated with this worthwhile venture. The Foundation is uniquely placed in New Zealand to fund major, long-running, multidisciplinary research projects of this type. We fill an important funding “niche” – without us, projects like this might not get off the ground. An earlier major Law Foundation initiative, the Human Genome Research Project (undertaken by Otago University Law Faculty), has provided a highly valued knowledge base for decision-makers dealing with the complex legal issues involved in the fast-changing field of human reproductive technology. •
The Law Foundation is providing funding of $1.85 million for the Regulatory Reform project.
•
Learning from the Past: Adapting for the Future: Regulatory Reform in New Zealand was published in November 2011 by Lexis Nexis.
Visit www.lawfoundation.org.nz to find out more about the work of the Law Foundation. Lynda Hagen is the Executive Director of the New Zealand Law Foundation
OVERSEAS Company law needs fundamental rethink Nobel Peace laureate and anti-poverty campaigner Professor Muhammad Yunus has called for a fundamental rethink of company law in order to help the world’s poor. Professor Yunus was speaking at a 4 October session of the International Bar Association Conference in Dublin. The session was titled Lawyers Against Poverty. The Bangladeshi banker and former economics professor wants to see a relaxation of the obligation on public company directors to maximise profits for shareholders. This would foster the creation of “social businesses” which can pursue anti-poverty objectives such as providing housing and healthcare. “Corporate law in many countries requires companies to maximise profit or shareholders can sue the company,” he said. “In that system how can you create a social business? We agreed a 50/50 joint venture with Danone in which they would pay €500,000, but their lawyers advised them that you cannot invest money in a company that will not give you a dividend. “Danone had to write to shareholders to get approval for them to contribute part of the dividend money. 98% agreed and Danone raised €35m which they put into a social business fund.” Professor Yunus was scathing about the world’s banking sector, which he dismissed as wholly dysfunctional as it will not lend to 80% of the global population. Loan-sharking, which is how he described payday and shortterm loan companies charging exorbitant interest, is now a “global phenomenon” in consequence. He also expressed shock at the poverty he has experienced in advanced economies, including the UK. “In Glasgow, there are families in a fourth generation of unemployment. I had no idea that existed in Europe,” he said. Professor Yunus won the Nobel prize for his pioneering work as founder of the bank Grameen, using microfinance to provide loans to rural people too poor to qualify for a bank loan. In the social business sphere, he established a joint venture with French food company Danone to provide nutritionally enhanced yoghurt to poor Bangladeshi children. This type of business allows a company to recoup money invested but not take any dividend beyond that point.
Europe’s bar on in-house lawyers Europe’s in-house lawyers cannot represent their employers before European Courts, the Court of Justice of the European Union ruled in C-422/11 P Prezes UKE on 6 September. This case was an appeal from a 2011 General Court ruling. The court held that its statute should be interpreted so as to preclude in-house lawyers from bringing actions on behalf of their employer before it and before the General Court.
It based this decision on the ruling in Akzo Nobel, and held that a lawyer must be independent of his or her client in order to be granted standing. The court ruled that a contract of employment precluded such independence, notwithstanding the regulation to which in-house members of the legal profession are subject (and the rights which such professionals may enjoy) at a national level.
ABSs ‘compromise’ client interests The immediate past-president of the American Bar Association, Bill Robinson III, strongly denounced alternative business structures (ABS) in his presentation at this year’s International Bar Association conference in Dublin from 30 September to 5 October. Mr Robinson argued that non-lawyer investment in law firms compromise the client’s best interests and undermine professional independence. Stressing that he was not speaking on behalf of the ABA, Mr Robinson said his views broadly reflected the consensus among US lawyers. “From the US perspective, the Model Rules start and end with a focus on the interests of the client,” he said. “There is a strong sense that in the ABS approach there is an inherent conflict of interest. Investors invest to make money and, as we say, ‘he or she who has the gold makes the golden rule’. They don’t bring a higher quality of practice or integrity.”
Public needs to find torture unacceptable People in liberal democracies have become “immune” to the obscenity of torture since the US launched its “war on terror”, one of the world’s great human rights champions told the International Bar Association conference in Dublin on 2 October. Juan E Mendez, the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, wants to restore the consensus that existed before 9/11, when civilised opinion held that torture was unacceptable in any circumstances. Mendez, who was himself tortured during Argentina’s “dirty war” in the 1970s, is an adviser on crime prevention to the International Criminal Court and former president of the International Center for Transitional Justice. “The worst effect of the ‘war on terror’,” he said, “was its impact on public opinion, which has been persuaded that torture is inevitable; it has to happen; that it might be ugly but we have to accept it. That is a very different situation from the eighties and nineties. “But I think we can recover the consensus that existed then. We need public opinion behind us and in Europe there is now more willingness to look into extraordinary rendition and secret detention. Torture is unacceptable because of what it does to us as citizens and to democracies.”
LAWTALK 807 / 26 OCTOBER 2012
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UPCOMING PROGRAMMES Programme
Presenters
Content
Where
When
CIVIL 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 Wellington litigation skills in an intensive, small-group workshop which will take you Auckland through a summary judgement claim in the High Court to demonstrate how Christchurch to handle a file from beginning to end. It will include how to draft pleadings, evidence and submissions, how to present an argument – and much more. Skills taught in this two-day workshop are transferrable to the District Court and other High Court cases.
29-30 Oct 12-13 Nov (full) 19-20 Nov
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.
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 of Judgments
Bob Hollyman
Working through several common scenarios, this practical seminar will consider step-by-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
Webinar
14 Nov
EMPLOYMENT Employment Law Conference – Good Faith
Chair: Peter Chemis
A Beginners Guide Chief Judge to the Employment Graeme Colgan Court - it’s more Peter Cullen than just putting on a gown
This “must-go” conference, noted as much for its enthusiastic collegiality Auckland as for the high quality of the business sessions, will once again provide practitioners at all levels of experience an unmissable opportunity for two days of stimulating engagement on topics of essential importance and interest in the employment law field.
8-9 Nov
This webinar is a must for junior lawyers who appear, or are likely to appear, Your computer 22 Nov in the Employment Court. To help with your confidence, the presenters Webinar will run through the basics of pleadings, judicial settlement conferences, interlocutories and hearings.
FAMILY Understanding Mediation – mediation for lawyers Part A
Virginia Goldblatt Geoff Sharp
Mediation knowledge and skills are an increasingly important adjunct to legal Wellington practice. Many more clients are taking disputes to mediation (because it works) and the more that their legal advisers know about how it works the better. In addition practice as a mediator extends the service that lawyers can offer the public.
16-18 Nov
PROPERTY Gifting – 12 months on
Chris Kelly Greg Kelly
Trusts for Property Andrew Watkins Lawyers Simon Weil
Gift duty was abolished as of 1 October 2011, anticipating a major change Your computer 6 Nov in trust practice and rendering redundant years of accumulated precedents Webinar and processes. Has the new 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. 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. Webinar for smaller centres
Dunedin Christchurch Wellington Hamilton Auckland Webinar
19 Nov 20 Nov 21 Nov 26 Nov 27 Nov 21 Nov
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
GENERAL 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 Your computer one of the most far reaching pieces of reform to hit the financial sector in Webinar recent years. This webinar will alert you to how the new AML/CFT regime could impact on your organisation, your clients, or your practice.
31 Oct
Stepping Up foundation for practising on own account
Director: John Mackintosh
Webinar All lawyers wishing to practise on their own account whether alone, in Wellington partnership, in an 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’ Auckland preparation, attend the assessment day and pass all assessments. Make Christchurch sure you register in 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 Wellington provides hands-on practice and feedback, as well as a conceptual Auckland framework for preparing for and 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 Wellington legal practice. Many more clients are taking disputes to mediation (because it works) and the more that their legal advisers know about how it works the better. In addition practice as a mediator extends the service that lawyers can offer the public.
16-18 Nov
Reading Accounts and Balance Sheets
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.
13-14 Nov 19-20 Nov 26-27 Nov 28-29 Nov
Writing Persuasive Opinions
Judge John Adams Simon Cunliffe Margot Schwass
Successful opinions are persuasive. Persuasive opinions are clear, Auckland succinct, jargon-free, cogently structured, legally acute and tailored to the needs of your reader/client. Comprising a mix of presentations and smallgroup 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.
12 Dec
Practical Enforcement of Judgments
Bob Hollyman
Working through several common scenarios, this practical seminar will consider step-by-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.
Dunedin Christchurch Wellington Hamilton Auckland
12 Nov 13 Nov 14 Nov 19 Nov 20 Nov
Webinar
14 Nov
Webinar for smaller centres
Auckland Hamilton Wellington Webinar Christchurch
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 Unjustified threat of contempt proceedings
were to file and serve the Notice of Motion “without further reference” unless Mr B met his relationship property obligations by the next day.
A barrister, C, has been ordered to compensate an opposing firm after threatening its partners with contempt proceedings during a Family Court case.
C repeated the threat three days later, after Mr B’s solicitors had written to reiterate why the court order could not be complied with. Later, the solicitors gave more details to defend their view that they had no obligations to the court under the consent orders and that, since they also acted for the bank and the other family members, they were bound by the revised instructions from those other clients. C, however, did not withdraw his threat, referring again to contempt proceedings.
The Legal Complaints Review Officer (LCRO) agreed with the Lawyers Standards Committee that C’s threat had been made for an improper purpose. Both the LCRO and the standards committee found C had been guilty of unsatisfactory conduct.
Facts and complaint C acted for Ms A in relationship property proceedings against her expartner Mr B. In October 2008, after some negotiation, the Family Court made a consent order requiring the family home to be transferred to Ms A by 24 October, free of the existing mortgage. Mr B’s family had agreed beforehand to provide the mortgagee bank with alternative security so the mortgage could be discharged. The court order also required Mr B to obtain a water supply easement in favour of the family home immediately. Ms A had required this be done before the transfer of the home. The terms of the easement were not agreed to until April 2009. By that time, Mr B’s business had failed, his family were no longer willing to provide replacement security, and the bank had withdrawn its agreement to the mortgage discharge. When it became clear that the terms of the court order would not be complied with, C responded that Mr B was in default of the consent order and Ms A was entitled to have him arrested for contempt of court. C then broadened his threat, sending Mr B’s solicitors draft contempt proceedings that sought committal not only for Mr B but also his parents, his brother and each of the partners in the solicitors’ firm. C said his instructions
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In the event the parties reached a settlement in November 2009 and no contempt proceedings were filed. The firm representing Mr B subsequently complained to the Law Society about the threat of contempt proceedings. Following a request for an apology, C offered a limited apology but did not resile from his position that he had not breached any professional obligation.
Standards committee decision C told the standards committee he had followed the clear instructions of his client and had prepared the draft contempt proceedings in good faith for the purpose of pursuing a legitimate claim. He also emphasised that they were draft proceedings only and that Mr B’s solicitors had been given a chance to respond to them. The committee rejected these arguments, finding that C’s threat had been unwarranted given that there had been no written undertaking from Mr B’s solicitors, that the consent order had contemplated intermediate steps before the easement would be in place, and that there had been considerable delay before those steps were completed. The committee found that as the partners in the firm hadn’t been named in the consent orders, they had no direct responsibility that could reasonably have led to any court sanction against them. C should also have taken into account that the courts
regard committal for contempt as a weapon to be used sparingly. The committee found that the threat had breached Rule 2.3 of the Conduct and Client Care Rules, which states: “A lawyer must use legal processes only for proper purposes. A lawyer must not use, or knowingly assist in using, the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person’s reputation, interests, or occupation.” By breaching Rule 2.3 the barrister had also breached Rule 10.1, which requires lawyers to treat each other with “respect and courtesy”. The committee also concluded that his conduct would be unacceptable to lawyers of good standing, applying the test of “competent, ethical and responsible practitioners” (B v Medical Council [2005] 3 NZLR 810 (CA)). It found C guilty of unsatisfactory conduct. C applied for a review of the decision.
On review The LCRO agreed with the standards committee that C had breached Rules 2.3 and 10.1. The LCRO found that his actions had amounted to unsatisfactory conduct. The LCRO confirmed the standards committee decision, and modified it to include a finding that C’s conduct was also unsatisfactory conduct under s12(b) of the Lawyers and Conveyancers Act 2006, because such conduct would be regarded as unacceptable by lawyers of good standing. The LCRO rejected C’s claim that his sole objective in threatening contempt proceedings had been to ensure that the consent order would be complied with. Imprisoning any of the parties to the order would not have achieved this, the LCRO said, and in any case the partners in the firm were not parties to it. At the very least, C should first have applied to the court for orders requiring the necessary steps to be taken, rather than immediately threatening committal proceedings.
L AW YERS COMPL AINTS SERVICE The threat would not in any way have furthered Ms A’s position, and it had been reasonable for Mr B’s solicitors to have seen it as designed simply to put pressure on them and their client. The LCRO found this was an improper purpose. The LCRO said C should have been aware that events outside the control of the various parties were conspiring to prevent compliance with the consent order. Even after he’d been specifically informed of all the relevant circumstances, however, C had not retreated from his threat of contempt proceedings. The LCRO found the standards committee had been correct to take into account whether the threatened proceedings had been likely to succeed, as this was relevant to whether Rule 2.3 had been breached. The LCRO said that if the proceedings would have no chance of success or wouldn’t usually be brought in this situation, but the process has the effect of causing unnecessary embarrassment, distress or inconvenience to another person’s reputation, interests or occupation, then it is reasonable to infer that the course of action had been adopted for that purpose, rather than to further the client’s objectives. The LCRO and the standards committee both took into account that the courts see the jurisdiction to imprison for contempt as one to be exercised “with scrupulous care, and … only where the case is clear and beyond reasonable doubt” (R v Grey (1900)
Lawyer fined $1,500 for overcharging and failing to update client information A lawyer, A, was fined $1,500 by a Lawyers Standards Committee after the committee found there had been unsatisfactory conduct both for overcharging and for failing to ensure client information was updated with due expedition. A was also ordered to cancel one invoice for $2,872.50 including GST and disbursements, to reduce his fee for invoices issued after 1 August 2008 by $4,400 plus GST and to refund his client $4,000 plus GST. He was ordered to pay $1,000 costs to the Law Society.
2 QB 36, and see Solicitor-General v Radio Avon Ltd [1978] 1 NZLR 225 (CA)). C had told the LCRO that his client had had a “high degree of suspicion” that Mr B or his family were simply reneging on their commitments. The LCRO said, however, that given the courts’ approach, something more than a “high degree of suspicion” was necessary before committal proceedings should be pursued against a fellow lawyer.
Legal process C argued that threatening committal proceedings was not a “legal process” under Rule 2.3, but the LCRO said the rule was not restricted to a technical definition of this term. He noted that the rule refers also to the use of “the law and legal processes” and found that C’s drafting of a notice of motion and his threat to file it the next day clearly came within that wording. Rule 2.3 is not limited to the actual filing of court proceedings, he said.
Client instructions The LCRO rejected C’s argument that he had been bound to follow his client’s instructions regardless of the merits of the threatened proceedings. The LCRO said that once a breach of the rules had been found, it was no defence that the barrister had been acting on instructions. C pointed to Rule 13.3: “Subject to the lawyer’s overriding duty to the court, a lawyer must obtain and follow a client’s
The complaint A’s former client contacted him in 2005 after separating from her partner. She sought legal advice on relationship property and parenting under the Care of Children Act 2004. A ceased acting for the complainant in mid-2010, when she indicated that she would not be in a position to pay for any further legal steps. When she decided to change lawyers, she was informed that she must pay the outstanding legal fees before her file would be released to her. At that stage, she became aware that A had, at some stage, increased his hourly rate. She also realised that the fees charged were excessive. During 2008, funding for the proceedings was established through a third party in Australia arranging
instructions on significant decisions in respect of the conduct of litigation.” The LCRO, however, emphasised the next sentence of this rule: “Those instructions should be taken after the client is informed by the lawyer of the nature of the decisions to be made and the consequences of them.” The LCRO said that had Ms A been told that threatening contempt proceedings could put C at risk of disciplinary action, it was highly unlikely she would have told him to continue. Rule 4.1 enables a lawyer to decline to follow a client’s instructions for “good cause”, and this includes where the instructions could require the lawyer to breach a professional obligation.
Penalty The complaint went back to the standards committee for a decision on penalty. The committee accepted that this was the first disciplinary finding against C and that he was a lawyer of considerable experience and reputation. It also noted that in a recent apology to Mr B’s solicitors, C had accepted that he had fallen short of expected standards. The committee agreed with the complainant that the partners in the firm should be awarded $2,400 as compensation for the time and attention involved in dealing with the threatened action. The committee did not accept, however, that the partners should be compensated for time involved with the complaint process itself. C was also ordered to pay $600 costs to the Law Society. LT essentially a loan over the relationship property. The invoices for this period were sent to the third party although they were addressed to the complainant. The complainant said she needed the files urgently and that was why she eventually entered into a settlement agreement with A, so she could uplift her file. She also noted that A had charged twice for some of the work actually done.
The response A stated that his former client was bound by the settlement agreement they had reached and any attempt to go behind that agreement would be unfair. He challenged the right of the standards committee to consider the complaint.
LAWTALK 807 / 26 OCTOBER 2012
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L AW YERS COMPL AINTS SERVICE
Steps taken
The issues
After considering the complaint, the standards committee appointed a costs assessor to consider the fees.
The standards committee resolved to decline jurisdiction for fees issues before 1 August 2008, as the cost assessor’s recommended reduction did not constitute gross or dishonest overcharging.
A was firmly of the view that the committee and, therefore, the costs assessor appointed by the committee, had no jurisdiction in respect of his accounts. He noted the parties had entered a fee agreement and that Regulation 29 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committee Regulations 2008) precluded the committee from dealing with complaints relating to bill of costs rendered more than two years before the date of the complaint, or that related to a fee that did not exceed $2,000 exclusive of GST. He continued to maintain that if an account was paid it could not be reviewed.
Costs report The costs assessor noted in his report that the pre-1 August 2008 invoices totalled $7,610. In his view, a reasonable fee during that period would range between $4,500 and $5,000. For the period after 1 August 2008, he would reduce five invoices by a total of $4,400. He would also reduce the final, unpaid invoice by $2,500 plus GST and disallow the $60 disbursement on the ground that it must have been charged elsewhere.
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 MULLER Sarah Jane SAMUELS Bernard Claude SUSSMANN Jessica Anne Canterbury Westland Branch CHILD Corbin Thomas MASON Caroline Rose SMART Michael Kevin TAFFS William Sefton
Otago Branch BRENT Allan Douglas William GRAHAM Nathan Paul GUTHRIE Jane Marguerite MILLER Kieran Jon Waikato Bay of Plenty Branch EIVERS William Michael KING Andrea Sharee MCCOOL Claire Dawn
Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch WILSON Paul Joseph BARBER Cathryn Emma 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
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The committee considered the agreement between A and his former client, which A viewed as being full and final settlement of the fees. The committee said it could not simply put the parties’ agreement aside. Even taking that into consideration, however, it found that the overcharging amounted to a breach of A’s obligations under Rule 9 of the Rules of Conduct and Client Care. The committee noted that a client information form stipulated that the practitioner’s rate would be charged at $310 per hour plus GST. However, by letter dated 6 May 2010, A estimated further hearing costs based around an hourly rate of $540 plus GST. That change “came as a complete surprise to the client,” the committee said. Further, time records dated from 2007 indicated that A’s time was recorded at $400 yet there was nothing on the client file to indicate that the client had been updated about any of the changes in the client information, such as the increase in the hourly rate, with “due expedition”. That amounted to a breach of Rule 3.6 of the Rules of Conduct and Client Care. LT
Maximum compensation awarded after incorrect advice A Lawyers Standards Committee ordered a lawyer, B, to pay $25,000 compensation to a client and to refund her more than $17,000 in fees after his incorrect advice led to an award and other costs against her under the Construction Contracts Act 2002.
Facts and complaint The client had disagreed with a payment claim issued by the construction company that was building her new house. She approached B, who told her the claim hadn’t been issued correctly and that she had 20 working days to dispute it. B wrote to the builder, setting out the disputed items and asking for a new payment claim to be issued. The builder issued the new claim eight months later. As the client still did not agree with the claim, the legislation required her to respond again with her own proposed payment schedule within 20 working days, otherwise she would be liable for the amount claimed. B, however, failed to advise her of the need to respond within this time limit. He issued a payment schedule, but four days late. The builder took the dispute to the Building Disputes Tribunal. Because the client hadn’t responded to the second claim on time the adjudicator found in the builder’s favour on all issues, and also awarded costs against the client. The client complained to the Law Society that B’s advice had been slow, incompetent and incorrect. As a result, her case had escalated to adjudication, where she had had little chance of winning because of the failure to respond by the due date. She said she had incurred a large debt and suffered huge stress. In response, B said he disagreed that his failure to respond on
L AW YERS COMPL AINTS SERVICE time had caused the consequences the client had complained of.
The committee’s decision A construction contracts expert reviewed the complaint and reported back to the standards committee, which accepted his conclusions. The committee found that B had clearly breached his obligation to advise the complainant correctly on the necessary response to the second claim. It accepted that B had incorrectly said there was no need to reply to the second payment claim because it was much the same as the first. As a result, the client had no defence when the case went to the Building Disputes Tribunal. At adjudication B had also argued the merits of the dispute, when in fact the only relevant issue had been whether a valid payment schedule had been provided on time. The committee found B guilty of unsatisfactory conduct. The committee said that, rather than just carrying on, B should have admitted he had made a mistake in believing that the first response had been sufficient. The committee added that he should have realised the construction contracts area is a specialist field and should have referred the case on to another lawyer who did this type of work.
CLASSIFIED ADS
Penalty decision Following the adjudication, the client had been ordered to pay the costs of the adjudication ($14,428) and the builder’s legal costs ($2,334). The committee disagreed with B that these had arisen from the client’s failure to pay the amount claimed rather than from the late payment schedule. It said these losses had been a direct result of B’s breach, for in all probability the dispute would not have gone to adjudication if the client had been given correct advice and the payment schedule been handled correctly. After the adjudication, B had advised the client she could stall enforcement of the award and reduce the amount payable under it. The builder applied to enforce the award and the client was ordered to pay the builder’s costs ($6,864) and interest costs on the award ($7,854). She had also paid for the costs of a specialist ($7,874) whom she had brought in to negotiate with the builder about the amount of the award. Again, the committee found that those losses would not have occurred but for B’s breach of his obligations to the client. The standards committee agreed with the complainant that B’s incorrect advice had caused her to incur losses amounting to more than $39,000. It
CONTACT CHRISTINE WILSON christine.wilson@lawsociety.org.nz
Changing your LawTalk delivery address If you want to change the address that your copy of LawTalk is sent to, you need to contact the New Zealand Law Society Registry. The LawTalk address labels are generated from the Registry database. If you change your address with Registry, it automatically changes your LawTalk delivery address. There is a form on the Law Society website to do this. It is at www.lawsociety.org.nz/home/ for_lawyers/forms/forms/registry_ lawyer_change_of_details. You can contact Registry at registry@ lawsociety.org.nz.
LEGAL SERVICES
ENGLISH LAW AGENCY SERVICES
SARA LOUISE MCINALLY
Would any lawyer holding a will for the above-named, late of 154 Lake Road, Rotorua and more recently late of Elderslea Lodge, 29 Redwood Street, Upper Hutt, retired, born on 27 June 1921, who died on 20 August 2012, please contact Peter Richardson, Upper Hutt Law, PO Box 40501, DX RP44501, Upper Hutt, ph 04 528 7165, fax 04 528 2998, email peter@upperhuttlaw.co.nz.
Would any lawyer holding a will for the above-named, late of Alicetown, Lower Hutt, born on 3 March 1984, who died on 16 September 2012, please contact Paul Friedlander of Friedlander & Co Limted, PO Box 8646, Symonds Street, Auckland, ph 09 359 9440, fax 09 359 9441, email paul@friedlander. co.nz.
WILLIAM PERCIVAL MILLER
WILLIAM FARRELL
Would any lawyer holding a will for the above-named, also known as William Percville Miller, late of Wanganui, packer operator, who died between 12 and 15 September 2012, please contact Siobhan Simpson, ARL Lawyers, DX RP42002, PO Box 5040, ph 04 566 6777, fax 04 569 3354, email siobhan.simpson@arl-lawyers.co.nz.
The committee also ordered B to refund the client all of his fees that were incurred from the date of his breach until he stopped acting for her. This amounted to $17,420. B agreed to waive payment of further outstanding fees of $2,582. LT
Fearon & Co 56x100 ad_BW.qxd:Layout 1
WILLS VIOLET MARIA TAYLOR
therefore awarded her the maximum compensation available under the Lawyers and Conveyancers Act 2006 – $25,000.
S40 PUBLIC WORKS ACT Would any lawyer who currently acts for the above-named or is holding a will for the above-named, who owned property in Ikamatua, West Coast in the 1920s, who died on 2 September 1955, please contact Murray Bradley, ph 03 363 5040, Darroch Ltd, PO Box 142, Christchurch. Information is sought for the purposes of Section 40 of the Public Works Act 1981.
SOLICITORS Established 1825
Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations
VISIT OUR WEBSITE www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 00 44 (0)1483 540840 Fax: 00 44 (0)1483 540844 General Email: enquiries@fearonlaw.com
PROPERTY
LITIGATION
John Phillips
Martin Williams
00 44 (0)1483 540841
00 44 (0)1483 540843
mw@fearonlaw.com
ajp@fearonlaw.com
PROBATE
Francesca Nash 00 44 (0)1483 540842
fn@fearonlaw.com
Regulated by the Solicitors Regulation Authority of England and Wales
LAWTALK 807 / 26 OCTOBER 2012
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WILLS AGNES KOWHAI MCLEOD
CHRISTOPHER DAVID HARVEY
DICKSON ELLIS CHAPMAN
Would any lawyer holding a will for the above-named also known as Akinihi Kowhai McLeod, late of 793 State Highway 2, Mount Maunganui, who died on 24 September 2011, please contact Jo Douglas of East Brewster Lawyers, PO Box 1742, Rotorua 3040, ph 07 348 2030, fax 07 347 8701, email jo.douglas@eastbrewster.co.nz.
Would any lawyer holding a will for the above-named, late of Katikati, electrical fitter, who died on 6 September 2012, aged 55, please contact Sue Adams, c/- Kaimai Law, Katikati, PO Box 56, Katikati 3166, ph 07 549 4890, fax 07 549 1385, email sue@ kaimailaw.co.nz.
MARK STEPHEN MAGNUS
Would any lawyer holding a will for the above-named, late of 23 McKenzie Street, Geraldine, born on 7 September 1969, who died on 26 December 2010, please contact Bernadette Hill of Bradley West, Solicitors, PO Box 55, Geraldine 7956, ph 03 693 8207, fax 03 693 8266, email bernadette@bradleywest.co.nz.
Would any lawyer holding a will for the above-named, late of 96A Verran Road, Birkdale, Auckland, born on 30 July 1931, who died at Auckland between 1 September 2012 and 2 September 2012, please contact Kimberly Knox, Solicitor, Carter & Partners, PO Box 2137, Auckland 1140, ph 09 366 5178, fax 09 366 1363, email kimberlyk@carterslaw.co.nz.
Would any lawyer holding a will for the above-named, formerly of Auckland, but late of Davis, California, professor, born on 6 March 1974 at Otahuhu, who died on 22 August 2012 in San Francisco, please contact Chris Daisley, Whaley Garnett, PO Box 17181, Auckland 1546, ph 09 520 4477, email cjd@whaleygarnett.co.nz.
DESMOND STANLEY SMITH
GLENDA HELEN BOAG
Would any lawyer holding a will for the above-named, late of 7 Ramwell Place, Weymouth, Auckland, caregiver, who died on 20 July 2012, aged 59, please contact PS Pabla (Jamie) of Ross France Lawyers, PO Box 76 263, Manukau, Auckland 2241, DX EP75533, ph 09 263 5905, fax 09 262 2757, email jamie@rossfrance. co.nz.
Would any lawyer holding a will for the above-named, retired boat builder, who died on 7 October 2012, please contact Fiona Ryan, 199 Whitaker Street, Te Aroha, ph 07 884 0002, fax 07 884 0039, email fiona. ryan@ryanlaw.co.nz.
LEGAL SERVICES
EDWARD ROSS HUGHES
Would any lawyer holding a will for the above-named, late of 15 Albatross Road, Red Beach, Auckland, who died on 27 September 2012, please contact Jane Goulding, Daniel Overton & Goulding, DX EP71005, PO Box 13017, Onehunga, Auckland 1643, ph 09 622 2222, fax 09 634 2148, email jane@ doglaw.co.nz.
UK Private Client Services & Estate Administration
Would any lawyer holding a will for the above-named, late of 189 Tautahanga Road, Turangi, consultant, born on 15 June 1959, who died on 5 September 2012, please contact Louise Chapman, PO Box 1811, Taupo 3351, ph 021 749 383, fax 07 378 3463, email kecamaho@ihug.co.nz.
SIMON WYE LEN CHAN
THOMAS NGATAIAWA TE WHATA
SITUATIONS VACANT
Cobbetts is a leading UK law firm based in Birmingham, Leeds, London and Manchester. Our private capital team provides sensitive, timely and thorough advice on a wide range of personal matters, including: • Administration of UK estates • Obtaining Grants of Representation • Contentious trusts and probate • Powers of Attorney • Settlements and Taxation • Wills For further details, please contact: Jennifer Morries on +44 (121) 2229368 or jennifer.morries@cobbetts.com Alexia Loughran on +44 (121) 2229277 or alexia.loughran@cobbetts.com
www.cobbetts.com Cobbetts LLP is a limited liability partnership
PRACTICE NOTICE
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LAWTALK 807 / 26 OCTOBER 2012
Legal and Technical Services • Team Leader
Legal & Technical Services is a business unit and part of the Investigations and Advice group of Inland Revenue. LTS is a multi-disciplinary legal and technical consultancy that supports staff in the field, as well as Inland Revenue’s National Office. We provide tax technical and legal advice and support on significant, complex issues to Investigations staff, Collections staff, Customer Services staff, Child Support. We undertake binding rulings and undertake a substantial amount of litigation for Inland Revenue and more. The work is richly varied and professionally rewarding. To be successful as a Team Leader for us, you will need to be able to demonstrate experience and results in: • Creating and leading high performing teams and building constructive relationships. • Problem solving and decision making under pressure. • Implementing organisational change while managing challenging workloads and timeframes. You will also need to demonstrate experience in; • Providing sound practical advice and assistance on legal and interpretation issues. • Critically analysing complex legal and factual information. • Making and communicating effective technical decisions. To apply, please go to http: www.ird.govt.nz/aboutir/careers/ attach your cover letter and CV. For further information, contact Shona Spicer at Inland Revenue National Office, 04 890 1548, or on ext 80548. Applications for this opportunity must be submitted before 5pm on Friday 26 October.
SITUATIONS VACANT
LegaL CounseL VaCanCies – auCkLand Corporate/Commercial Solicitor, Wellington This small firm with large clients operates from the heart of the CBD in Wellington. With a largely commercial client base and a fairly substantial trusts practice they are seeking a solicitor with a minimum of 1 year’s PQE to join them and act as an assistant to the managing partner. This is an ideal opportunity for a junior solicitor to be mentored by someone at the forefront of their speciality. While it would be advantageous to come from a commercial/corporate environment it is by no means necessary. What is important is that you have a desire to learn, initially this will be in the form of legal research and opinions for the Partner. When you have sufficient knowledge you will be given the opportunity of running your own files. 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 Phone: +64 4 471 1423 Email: admin@nicherecruitment.co.nz www.nicherecruitment.co.nz
The parent corporation of this business is one of New Zealand’s largest and most successful corporations, with the property arm engaged in designing and delivering some of New Zealand’s largest land development projects. Stunning offices in Auckland’s CBD. Legal Counsel - Property (4 – 7 years PQE) Rare chance to take your property experience in house. Reporting to the General Counsel, to be successful in your application for this role you will ideally have some experience with subdivisions. You will be encouraged to develop relationships with the development managers, and the coordination of and liaison with outside parties including external counsel. Ref: 31364 Legal Counsel - Commercial (4 – 7 years PQE) A specialist property lawyer is part of the team and it is envisaged that the commercial role will support the general counsel on corporate commercial matters such as but not limited to supply and consultancy agreements, banking documentation, and construction contracts. Ref: 31664 For each role, some exposure to RMA, Health & Safety or broader commercial matters will also be of interest to our client however is not essential. To apply, please send your CV to aucklandjobs@momentum.co.nz quoting the reference number or for further information in strict confidence, please contact Meryn Hemmingsen on (09) 306 5500 or 029 965 8152. 191 Queen Street Auckland P +64 9 306 5500
40 Mercer Street Wellington P +64 4 499 6161
M O M E N T U M .C O. N Z
LAWTALK 807 / 26 OCTOBER 2012
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SITUATIONS VACANT
Litigation and Employment Law Senior Appointment • Leadership • High Reputation • Depth of experience Recent changes in the partnership have opened up a pathway for a Senior Associate or Salaried Partner looking for an opportunity to step up into a leadership role within a busy commercial litigation team which encompasses employment law. At present the litigation team is lead by a very experienced partner and the team is operating at a high level both in reputation and in work volume, with scope for growth. The firm is a respected and successful firm in central Auckland with a combination of strengths in litigation and other areas of legal practice. What sets this firm apart is their expertise in providing innovative and proactive legal services of the highest standard and quality along with a friendly, welcoming way in which they work with clients and within the teams. The real appeal of this role is the breadth and depth of litigation and employment law work undertaken by the team. From within the team there is strong experience at all levels including the Court of Appeal and Supreme Court. Ideally you will have 5 to 9 years plus experience in litigation and employment law and you are looking to be a partner in the firm. You could be looking for a change of place and pace; a partner or barrister with clients looking for a better fit or a bright up and coming litigator. You will need a strong desire and experience in leading a team and in supporting practice operations. Whichever way you look at it, this role can be shaped to give you the best opportunity in your career. An excellent opportunity in this well positioned firm and should not to be missed.
For further information and in strict confidence please contact Judith Eller on 09 359 9244 or send a CV by email to: judith.eller@legalpersonnel.co.nz
Senior Solicitor – Commercial Senior Solicitor – Employment Relations Auckland Central We are New Zealand’s largest local authority providing essential services and facilities to nearly 1.5 million people. We need people who share our dedication to Auckland. With over 8,500 staff fulfilling a diverse range of roles, there are always plenty of career choices with room to move. Are you ready for a new challenge? Auckland Council is looking to further grow its legal capability by engaging two Senior Solicitors for roles in different areas of legal specialisation within Council. Both roles offer you variety, opportunity to make an impact and genuine work-life balance. Senior Solicitor – Commercial
Senior Solicitor – Employment Relations
This is a specialist position in the Legal Services team partnering with key clients on large scale commercial and procurement projects, together with a range of complex and varied transactions across the Auckland Council group. You will be responsible for providing expert advice with a particular focus on reviewing, drafting and negotiating commercial contracts, governance and operations of council-controlled organisations and engaging and managing external legal providers when required. This high performing team are Finalists in the NZ Law awards ‘In-House Counsel Team of the Year’ category.
This is a newly created role that sits with the small yet dynamic ER team, a centre of excellence within the wider HR Department. As part of the ER team, you will help shape the evolving industrial relations approach for Auckland Council during an exciting and challenging period for the organisation. You will be expected to provide wide-ranging advice on employment-related legal and policy matters across the organisation, as well as appear in mediations and before the Employment Relations Authority if necessary.
Ref. No. 39536
Ref. No. 39930
To apply, please go to our job site www.aucklandcouncil.govt.nz/careers and enter the job code. For further information, please contact Julie Moir in strict confidence on (09) 348 5805. Applications close Sunday, 4 November 2012.