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ISSUE 932 ¡ September 2019

N E W Z E A L A N D L AW S O C I E T Y 1869-2019

Making New Zealand a Pacific arbitration hub

Diversity in the NZ legal profession: At a glance

Recruiting and retaining staff

Global trends for the in-house profession

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  6 · From

the Law Society

People in the Law

48 68

  7 · On the move 12 · Pushing the boundaries of corporate social responsibility ▹ BY ALEX SUMMERLEE 14 · La vie en rose ▹ BY SARAHKATE HOARE

New Zealand Law Society

16 · New Zealand Law Society 18 · A Changing Profession ▹ BY GEOFF ADLAM

Update 42 · “Default” union enrolment widely supported, study finds ▹ BY LYNDA HAGEN

43 · The Zero Carbon Bill – a framework for New Zealand’s climate change journey ▹ BY DUNCAN BALLINGER 46 · New Incorporated Societies Act ▹ BY MARK VON DADELSZEN 48 · The story behind the first Tokelau High Court judgment ▹ BY RICHARD FLETCHER 49 · Law Commission recommends a new Act for dividing property when people separate ▹ BY NICHOLA LAMBIE AND JOHN-LUKE DAY

Alternative Dispute Resolution

52 · Experienced arbitration lawyers aiming to make New Zealand a Pacific arbitration hub ▹ BY NICK BUTCHER

88 68

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Contents 55 · Arbitrations and Proportionality ▹ BY ROBERT FISHER QC 57 · Appointing your arbitrator ▹ BY JOHN WALTON 59 · Cognitive dissonance ▹ BY PAUL SILLS

Practice 61 · Diversity in the New Zealand legal profession: At a glance ▹ BY GEOFF ADLAM 68 · Some initiatives to promote diversity in New Zealand’s legal profession 71 · Recruiting and retaining staff ▹ BY TRACEY CORMACK 74 · Having the philanthropic conversation ▹ BY ELEANOR CATER 75 · Global trends for the in-house legal profession ▹ BY JEREMY VALENTINE

Practising Well

88 ·

77 · Anxiety happens to me, and asking for help makes me a better lawyer ▹ BY HENRY CLAYTON 80 · Coaching: a new approach to address wellbeing and performance ▹ BY SHA PERERA 82 · Are your thoughts making you sick? ▹ BY RAEWYN NG

Sustainable Practice

84 · The environmental impact of those electronic things on your desk

Lawyers Complaints Service

Classifieds 90 · Will notices 92 · Legal Jobs 93 · CPD Calendar

Lifestyle 96 · A New Zealand Legal Crossword ▹ SET BY MĀYĀ 97 · Rumpole of the Bailey ▹ BY CRAIG STEPHEN 98 · Tail

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86 · Online legal information providers look forwards ▹ BY DAVID TURNER

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F R O M T H E L AW S O C I E T Y

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FROM THE LAW SOCIETY

150 years on On 3 September, the Law Society will arrive at exactly 150 years since it was first organised under the New Zealand Law Society’s Act 1869. I could go on about the detailed history, and what happened in 1897. I could talk about the fact that in that year, not long after the establishment of the Law Society, we saw the first Māori lawyer (Sir Āpirana Ngata) and the first woman to be admitted to the bar (Ethel Benjamin). About the example they set all those years ago. But as someone once said to me, “you only look back insofar as you are prepared to look forward”. In other words, we should only look at history if we are prepared to learn from what happened with a view to making the future better. The truth is that in 2019, we have yet to fulfil the promise of a profession that reflects the society we serve. While we have just over 800 lawyers that identify as Māori, this is out of a total number of 14,000 and does not reflect the national population. The Law Society has only recently accepted the need to come halfway and do the work required to gain cultural competency in te reo and tikanga. Ethel Benjamin was not supported at all by the Law Society and was restricted from being able to use the law library. She set up a business and succeeded as New Zealand’s first female lawyer, in spite of the organisation. And while the profession comprises of just over 50% women, we have yet to achieve gender equality at the senior levels and pay parity. And if anyone doubted that was the case, the revelations of 2018 confirmed a sad reality. We have a culture which no longer works. It probably never did. So yes, we have come a long way. But the distance we have yet to travel is like shooting for the moon and back. The good news is that we are starting to confront that history. In fact, Aotearoa New Zealand, as a country, appears to be confronting a whole lot of truths about whether “this is not us” is a true statement. After 50 years of a “get tough on crime” policy we have a Government openly acknowledging that a punitive approach to criminal justice simply does not work. An independent review of the Family Court reforms proved that reducing the funding for a court dealing with vulnerable people and complex cases was a mistake. Importantly, as a profession we are all holding up the mirror and taking a good, long and uncomfortable look at ourselves. Dame Silvia Cartwright put it pretty squarely before us when she said the profession has arrived at “a watershed moment”. We have. The water has been building for some time. Possibly for 150 years. 6

We are now at the point break where it is finally tipping into a wave. We can either be completely engulfed by it or ride the wave to a totally new future. I believe we can get there. To get to a place where the profession actively strives for inclusion and, therefore, becomes more diverse. Where equity is the touchstone. Where we fight for access to justice for all. One where Sir Āpirana Ngata and Ethel Benjamin would be proud that, despite the effort required to break the barriers they faced and the discrimination they undoubtedly experienced, it was worth it. It was worth it because the very purpose of what we do is to be fair and serve our community. It is what they did. And so shall we. John F Kennedy once said “we do these things, not because they are easy, but because they are hard”. He was talking about getting a human to the moon for the first time and the effort it would take. What we are facing is not that different. We will do this and succeed because it must be done. Because if we don’t then we have failed to achieve our very purpose as a legal profession. To be just and fear not. ▪ Tiana Epati President, New Zealand Law Society.


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PEOPLE IN THE LAW

ON THE MOVE

Cheryl Gwyn appointed to High Court The Inspector-General of Intelligence and Security, Cheryl Gwyn, has been appointed a Judge of the High Court. She was sworn in at the Wellington High Court on 9 August and will sit in Auckland. Justice Gwyn graduated from the University of Auckland in 1979 with a BA in Political Studies and English and an LLB(Hons). She spent some time at the Hawke’s Bay Farmers’ Meat Company before taking up a role in 1985 as an Investigating Officer in the office of the Race Relations Conciliator. She joined Chapman Tripp in 1986, becoming a staff solicitor on her admission to the bar in March 1987, and joining the partnership in 1991. In 1996 she moved to Russell McVeagh as a partner before her appointment in 2001 as the Deputy Secretary for Justice at the Ministry of Justice. From 2003 to 2014 Justice Gwyn was Deputy Solicitor-General overseeing the Attorney-General’s Group at the Crown Law Office and having direct responsibility for the management of Treaty of Waitangi, constitutional and human rights law issues. She was appointed the Inspector-General of Intelligence and Security in 2014.

Owen Paulsen appointed Associate High Court Judge

the University of Canterbury with an LLB in 1986 and began his career as a solicitor at Harman & Co. He was admitted to the partnership of Harman & Co in 1991, before leaving in 1998 to travel overseas. From 2000 to 2001 he was an adjudication and mediation member of the Employment Tribunal, while also managing a sole practice as a litigation lawyer. In July 2001 he joined Cavell Leitch Law as the Head Litigation Partner. He practised in a broad range of areas including commercial litigation, arbitration and mediation, employment, human rights, and criminal law. While in this role, he graduated from the University of Auckland with an LLM (Comm) (Hons). He will sit in Christchurch.

Russell Walker appointed to District Court Russell Walker has been appointed a District Court Judge with both jury and Family Court jurisdiction. He will be based in Invercargill and was sworn in on 26 August in Palmerston North. Admitted as a barrister and solicitor in December 1987, Judge Walker worked as a sole practitioner in Palmerston North from 1997, practising criminal law until 2005 and thereafter focusing on Family Court work. As a Resolution Institute accredited mediator he conducted over 300 mediations. Judge Walker was approved as a lawyer

for child and lawyer to assist as well as being a youth advocate. While in practice he was heavily involved in regional New Zealand Law Society initiatives involving the Family Court.

Farewell sitting for Justice Toogood A farewell sitting was held for Justice Christopher Toogood in Auckland on 2 August. He has retired from the High Court bench after being appointed a High Court Judge on 8 March 2011. Justice Toogood graduated from Victoria University of Wellington in 1972 and was admitted as a barrister and solicitor the following year. After 18 years as a litigation lawyer, he joined the independent Bar in 1990 and was appointed Queen’s Counsel in 1999. In practice he specialised in civil and commercial litigation, employment, sports and criminal law. He also accepted numerous appointments as an arbitrator and mediator in employment and other civil disputes.

Andrew Dallas appointed ERA Chief Andrew Dallas has been appointed Chief of the Employment Relations Authority. He has been appointed for a three-year term to November 2022. Dr Dallas took up his role on 22 August when the current Chief, James Crichton, stepped down. Mr Crichton had been Chief since 2015 and a member of the Authority since 2004. Mr Dallas was admitted as a barrister

Owen Paulsen has been appointed an Associate Judge of the High Court and was sworn in at the Christchurch High Court on 2 August. He had been Lord Chief Justice of the Kingdom o f To n g a a n d t h e President of the Tongan Court of Appeal and the Land Court since 2015. Associate Judge Paulsen graduated from 7


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and solicitor in May 1998. He has an extensive background in employment law, both theory and practice. He holds a PhD (Law) from Griffith University, Australia; co-authored an Australasian legal text on good faith collective bargaining; and has worked as a legal officer and solicitor in employment relations. He has been a member of the ERA since November 2015.

Other ERA appointments Geoff O’Sullivan has been appointed to the ERA from September 2019 for a term of three years. Mr O’Sullivan was admitted as a barrister and solicitor in January 1978 and operates Wellington-based employment practice O’Sullivan & Associates (Workplace Law Specialists) Ltd. Trish MacKinnon and Anna Fitzgibbon have been reappointed to the ERA for threeyear terms to August 2022. Both have been members since 2012. Tania Tehitaha and Christine Hickey both stepped down from the Authority in August after seven years’ service.

Sir Anand Satyanand resigns from Royal Commission Sir Anand Satyanand has resigned as Chair of the Royal Commission into Historical Abuse in State Care and in the Care of Faith-Based Institutions, effective from November 2019. He was appointed Chair of the Inquiry following its establishment by the Government in February 2018.

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In a statement, Sir Anand said when the inquiry terms of reference were announced in November 2018, the scope was widened to include faith-based institutions and the scale of the inquiry increased markedly. “Because of that and the fact that the ‘setup’ and development phase of the inquiry is nearly complete, I have opted to step aside for a new Chair who can lead the inquiry through to the completion of this important process.” On the announcement of his resignation, the University of Waikato announced that its Council had elected Sir Anand as the next University Chancellor for a four-year term commencing immediately.

Katrina van Houtte rejoins Kensington Swan Katrina van Houtte has joined the Kensington Swan construction and major projects team as Special Counsel. She joins the team from Fletcher Building, where she has spent the last few years providing in-house legal support to Fletcher Construction in both front-end and back-end matters. Katrina started her career at Kensington Swan in 2006 and has a strong background in construction, litigation and public law.

Will Irving becomes Russell McVeagh partner Russell McVeagh has promoted commercial litigation and dispute resolution senior associate Will Irving to partner in its Auckland office. Will began his career with

the firm as a summer clerk in 2009 and became a solicitor in 2011. He was promoted to senior solicitor in June 2014 and to senior associate in December 2016. Will’s particular specialities include disputes and advisory work across the financial services, energy, and infrastructure/property sectors.

Matanuku Mahuika appointed to Callaghan Innovation board Wellington lawyer Matanuku Mahuika has been appointed to the board of Callaghan Innovation. Admitted as a barrister and solicitor in December 1991, Mr Mahuika is a partner with Kahui Legal. He has experience as a lawyer advising on a wide range of corporate, commercial, Treaty of Waitangi, Māori land and administrative law issues. He has experience in working with early stage and start-up businesses and has held a wide variety of directorships and governance roles. Mr Mahuika’s tribal affiliations are Ngāti Porou and Ngāti Raukawa.

Tony Randerson QC to lead Resource Management Review Panel Retired Court of Appeal Judge Tony Randerson QC has been appointed Chair of a Resource Management Review Panel, to make recommendations on reforming the Resource Management Act 1991. Other members of the panel will be appointed in


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coming months. Mr Randerson became a barrister sole in 1989 and was appointed Queen’s Counsel in 1996. He was appointed a judge of the High Court in 1997 and to the Court of Appeal Judge in 2010. On his retirement in 2018 he was the longest sitting member of that court.

Simon Waalkens joins Rice Speir partnership Simon Waalkens has joined the Rice Speir partnership from 1 August. Simon was admitted in March 2009 and is an experienced commercial litigation and regulatory/compliance lawyer. He has conducted hundreds of criminal hearings and has considerable experience appearing as lead counsel before the High Courts and Tribunals on a variety of civil, criminal, and regulatory matters.

Mark Baker-Jones to lead Simpson Grierson climate change practice Simpson Grierson has appointed former ministerial policy advisor Mark Baker-Jones to lead its climate change practice as a special counsel. Mark has worked extensively as a climate change policy advisor both here and in Australia, and most recently as an advisor to Climate Change Minister James Shaw. As well as climate change policy development he has worked as a special counsel at DLA Piper and a partner at DibbsBarker (now Dentons). He has also held academic positions at the University of Queensland.

Pera Paniora joins WRMK Lawyers Ihapera (Pera) Paniora has joined WRMK Lawyers’ Dargaville team. Pera is a member of WRMK’s dispute resolution team and has a particular interest in providing

P E O P L E I N T H E L AW · O N T H E M O V E

employment law advice and support. She has previously worked at other smaller Dargaville firms and has experience in many different areas of the law, including property, relationship property, estate planning and trusts.

Kensington Swan promotes Michelle Hill to partner Michelle Hill has been promoted to partner in Kensington Swan’s Auckland property team. Michelle’s expertise is in commercial property, with a particular focus on commercial leasing, development projects and body corporate matters. Admitted as a barrister and solicitor in September 1996, she started with the firm in 2013 as a senior associate and was promoted to special counsel in 2018.

Te Kahui Manahi joins LMC Law

it intends to combine with Dentons , the world’s largest law firm. It says the combination, following approval by partners and subject to meeting regulatory requirements, is expected to launch early next year. Since entering the Australasian region in 2016 with offices in Australia and Papua New Guinea, Dentons has been named the fastest growing law firm in Australia, opening offices in all of the major Australian markets and growing lawyer ranks by 25%, in the past 12 months. Dentons is reported to have over 8,600 lawyers and professionals in 175 offices in 78 countries. It was founded in March 2013 when several firms merged.

Sue Wells appointed AMINZ Executive Director Sue Wells has been appointed Executive Director of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ). Ms Wells takes over from Deborah Hart who had been AMINZ Executive Director since May 2008. Ms Wells attended the University of Canterbury

Te Kahui Manahi has joined Tokoroa firm LMC Law. Te Kahui has worked for several Rotorua law firms, specialising in property and family law. She was admitted as a barrister and solicitor in October 2015. Of Ngati Tuwharetoa, Ngati Porou and Ngati Maniapoto descent, Te Kahui is fluent in te reo Māori.

Atticus Legal promotes Jo Wadmore to associate Hamilton firm Atticus Legal has promoted Jo Wadmore to associate. Jo was admitted as a barrister and solicitor in June 2018 after working previously as a legal executive. She has wide experience in property transactions and estate administration.

Kensington Swan to combine with Dentons

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Kensington Swan has announced that 9


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and served five terms as a Christchurch City councillor. She has held a number of positions in the not for profit sector and as a Resource Management Act independent commissioner. She also has worked as a radio and television presenter.

Four new members of Richmond Chambers Four new members have joined Auckland’s Richmond Chambers. Raynor Asher QC has resumed practice at the bar as an arbitrator and mediator, and providing opinions and advice. Mr Asher was appointed Queen’s Counsel in 1992 and was appointed to the High Court bench in 2005 and the Court of Appeal in 2016. He retired from the bench in March 2019. Rachael Woods is an experienced civil and criminal litigator, and has significant experience in defending regulatory prosecutions. Before joining the chambers she spent five years at a boutique insurance law firm where her focus was predominately on professional indemnity matters. Lara Steel has broad civil, criminal and regulatory experience and joins as a full member having formerly been Richmond Chambers’ first junior barrister. Rob Towner has over

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35 years’ experience as an employment lawyer, most recently as a partner for 20 years at Bell Gully. Before that, he was at Russell McVeagh for 20 years. He advises and acts on both contentious and commercial employment issues.

Meares Williams appoints two associates Meares Williams has promoted two of its lawyers to associate. Belinda Ferguson has BA and LLB degrees from the University of Canterbury and was admitted in October 2014. She works mostly in the area of relationship property but also specialises in general civil litigation and property law. Belinda has appeared as counsel in the District Court, Family Court and High Court. Kate Warren has a LLB and an LLM (Hons) from the University of Canterbury. She was admitted in July 2016. Kate works between the Christchurch and Rolleston offices assisting clients in a wide range of areas. She is particularly experienced in property and commercial law, trusts and estate planning.

www.russassociateslaw.com +64 9 972 0184

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• Corporate and international tax • Tax transactional and advisory • AML/CFT advice • AML/CFT audit • Structuring • Contentious tax matters

DLA Piper NZ appoints Alicia Murray to partner DLA Piper New Zealand has appointed Alicia Murray to partner. Alicia is a commercial litigator with more than 15 years’ experience in large-scale commercial disputes: regulatory, investigations, restructuring, insolvency and general commercial (including construction disputes). She co-leads DLA Piper’s New Zealand insolvency and restructuring team. DLA Piper New Zealand has also promoted Julia MacGibbon, Kate Rogers and Sophie Hudson to senior associate and In Sook Scorgie and Natalie Manning to senior solicitor.

Todd Spencer joins Juno Legal Todd Spencer has j o i n e d Ju n o L e ga l from Contact Energy where he was head of commercial and new ventures. Todd has more than 20 years’ experience in law and business working at a senior level in-house and in private practice in New Zealand and overseas. He started legal practice at Herbert Smith Freehills in London and moved to head up their Thai corporate office. He returned to New Zealand as in-house counsel at Contact Energy before moving to Chapman Tripp as senior solicitor. He then moved into a commercial role with Contact Energy.

Lawhub promotes Ruth Burgess to Associate Lawhub has promoted Ruth Burgess to associate. Ruth was admitted as a barrister and solicitor in September 2010 after graduating from the University of Canterbury. She is


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experienced in immigration and estate planning and will head Lawhub’s immigration team, which is based in Christchurch and Hamilton.

Susan Taylor appointed to trustee board Susan Taylor, the Chief Executive Officer of Financial Services Complaints Ltd, has been appointed a trustee on the Dame Malvina Major Foundation’s Board of Trustees. The Foundation is a charitable trust that helps talented young performing artists achieve their potential by providing financial assistance, performance opportunities and professional guidance. Ms Taylor was admitted as a barrister and solicitor in February 1981.

Tyler-Rose Keatley joins Davidson Twaddle Isaac Tyler-Rose Keatley has joined Hamilton firm Davidson Twaddle Isaac as a lawyer in the commercial law team. Tyler-Rose was admitted as a barrister and solicitor in October 2018.

Electoral Commission Chair and Deputy appointed Former Cabinet Secretary and Privacy Commissioner Marie Shroff has been appointed as the next Chair of the Electoral Commission. The Electoral Commission is the agency responsible for all areas of

P E O P L E I N T H E L AW · O N T H E M O V E

electoral administration in New Zealand including the running of parliamentary elections and referendums, promoting compliance with electoral laws, servicing the work of the Representation Commission and providing advice, reports and public education on all electoral matters. “Ms Shroff has a proven track record of utter neutrality in a political environment at a senior level, which is exactly what is needed in this role,” says Justice Minister Andrew Little. Wellington barrister Jane Meares has been appointed Deputy Chair of the Commission. The Deputy Chair position has been vacant following the resignation of Kristy McDonald QC in April 2019. Admitted as a barrister and solicitor in October 1990, Ms Meares has been in practice as a barrister at Clifton Chambers since 2012 and was the Treasury solicitor from November 2007 until March 2011. She is currently the Chair of an independent Crown entity, the Transport Accident Investigation Commission.

Natalie Coates appointed to Kāhui Legal partnership Kāhui Legal has appointed N a t a l i e Coates to the partnership. Natalie is from Ngāti Awa, Ngāti Hine, Ngāti Tūwharetoa, Tūhourangi, Tūhoe and Te Whānau a Apanui. She was admitted as a barrister and solicitor in August 2008 and joined Kāhui Legal that year. Before joining the firm, Natalie was a lecturer at the University

of Auckland’s Faculty of Law where she taught papers on the Treaty of Waitangi, jurisprudence, tikanga and the law, legal ethics and law and society. Natalie is based in Whakatāne.

John Morrison joins Hesketh Henry as senior associate John Morrison has joined the Litigation and Dispute Resolution team at Hesketh Henry as a senior associate. His particular areas of expertise are a broad range of construction disputes, tortious claims and claims relating to defective buildings. John joins the team after 5 years at MinterEllisonRuddWatts.

Contributing information to On the Move Brief summaries of information about promotions, changes in law firms, recruitment and retirement are published without charge in On the Move (which is also available on the Law Society website). Please send information as an email or MS Word document (no PDFs please) to editor@lawsociety.org.nz. Submissions should be three or four sentences without superlatives. We may edit them to conform to the format used. A jpeg photo may be included but please ensure you have permission for us to use it.

healthy Mind healthy Body healthy Practice lawsociety.org.nz/practising-well 11


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▴ Left to right: Kris Morrison (Partner at Parry Field), Mengeam Hok (In-house lawyer, Hagar Cambodia), Sotheary Chun (Legal and Protect (Associate at Parry Field), Makara Vong (Executive Director, Hagar Cambodia), Viv Zhang (Associate at Parry Field) 12


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tion Officer, Hagar Cambodia), Alex Summerlee

P E O P L E I N T H E L AW · PR O F I L E

PEOPLE IN THE LAW

PR O F I L E

Pushing the boundaries of corporate social responsibility BY ALEX SUMMERLEE Adding value What started as a lunchtime seminar in a Christchurch law firm was soon to transform into an international partnership with three lawyers travelling to Vietnam to advise an NGO dealing with victims of human trafficking and domestic violence. It was an unlikely but very real experience which for that firm has redefined the boundaries of where lawyers can add value. Let me explain. Hagar is a global charity established in 1994 in Cambodia. It has grown to have funding offices in Singapore, New Zealand, Australia, the United States and Hong Kong. Its operations take place in Cambodia, Vietnam, Afghanistan, Singapore and Myanmar. Hagar’s tagline is “the whole journey”. This reflects the nature of work that they carry out with their clients. Hagar’s clients are victims of domestic violence, sexual abuse or human trafficking. Hagar is committed to the restoration – insofar as far as is humanly possible – of people who have suffered some of the worst treatment at the hands of other people. This involves a combination of psychological support as well as initiatives to economically empower individuals to control their future destinies. Another aspect of Hagar’s work is supporting their clients through domestic legal processes. And so it was that during one afternoon in March 2017, Hagar was giving a presentation on its work at Parry Field Lawyers. It quickly became apparent that this was not the ordinary lunchtime seminar, inconveniently distracting fee earners from more pressing matters, such as the Bright Line Test or AML/CFT.

The question that many of us were left with was how we, as legal practitioners, could support the worthy work of Hagar – and not just with the usual financial support, but by applying our training and expertise in a meaningful way. In short, how could we add value? Seeking to add value is critical in all professional services. It defines the limits of our professional utility, and where that of another begins. And this was ultimately the vexing question for us as we pondered whether a lawyer from New Zealand could contribute in any meaningful way to law-related issues in a totally foreign jurisdiction. We decided that the only way to find out was to try. So, working with Hagar Vietnam, we identified some of the key issues they were encountering. Two key opportunities emerged: • Evaluating the extent to which Hagar’s existing legal support systems prepared their clients for interacting with the domestic legal system; and • Identifying opportunities to improve these systems. There were some obvious concerns, ie, how could a group of foreigners better identify opportunities for legal advocacy? On the other hand, there was clear overlap with skills with which all lawyers are equipped: problem-solving, research and connecting with other spheres of expertise, where required, to achieve an outcome for a client. With that in mind, in November 2018, three lawyers from Parry Field travelled first to Phnom Penh in Cambodia. The trio 13


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consisted of a civil litigator, a commercial lawyer and an immigration lawyer. Hagar’s Phnom Penh office was the first operational office the organisation opened. It is there that Hagar’s legal advocacy arm is most developed and it served as an exemplar of how this sort of advocacy, done at its best, could make a real difference to some of the most vulnerable members of humanity. The set-up was impressive, designed specifically to insulate victims – often children – from re-traumatisation that can occur when judicial proceedings commence. The main part of the secondment took place in Hanoi, Vietnam. Over the course of the next 10 days we interviewed Hagar staff, local lawyers, local and international NGOs supporting the victims of trafficking and domestic violence, Vietnamese government officials, representatives from UN-backed entities, as well as diplomats from various overseas missions.

And the result? After conducting interviews with staff from over 18 organisations connected with anti-human trafficking efforts together with interviews from parents of trafficking victims, we were able to report back to Hagar on the concrete ways it could provide better legal support for its victims. One of the most satisfying and peculiar aspects of the secondment was the number of doors that were opened to us simply by virtue of the fact that we were a group of New Zealand lawyers trying to conduct research into legal practices in Vietnam. A second benefit of our trip was being able to add value by defining what best practice can look like, in relation to witness and victim protection. Finally, there were a number of areas which, despite such foreign legal systems, bore striking resemblance to issues litigants face in New Zealand such as practical difficulties with the enforcement of judgments, and conceptually similar regimes relating to domestic violence (albeit with significantly different outcomes and practice). Kiwi lawyers can make a difference in some very different legal jurisdictions. ▪ Alex Summerlee  alexsummerlee@ parryfield.com is an Associate with Parry Field Lawyers in Christchurch. 14

PR O F I L E

La vie en rose My experience of the Paris International Training Programme BY SARAH-KATE HOARE

As the world’s most popular tourist destination, there is a lot to love about France. The country is beloved for its café culture and UNESCO-protected gastronomy, countless landmarks and cultural icons, the romance of Paris, the magic of the French Riviera – the list goes on. While I could spend days reciting everything that I love about France, the French trait of disruptive and near-constant protest is less favourably regarded. The Third Republic was founded on the principles of Liberté, Égalité, Fraternité, which can be traced back to the Revolution and have underpinned subsequent republics including the current Fifth Republic. These tenets are lived and breathed by the French and they are fiercely defended across the country. The French attitude towards their political and legal system can sometimes stand in stark contrast to the “she’ll be right” attitude we tend to adopt in New Zealand. All this makes for an unforgettable learning environment for a young Kiwi solicitor.

A unique opportunity In May and June this year I had the privilege to be nominated by the New Zealand Law Society to participate in the Programme du Stage International (International Training Programme) of the Paris Bar. The eight-week programme is run twice a year, once in English and once in French, and combines classroom learning, site visits and a hands-on internship in a Paris law firm. Through the programme, the Paris Bar hopes to encourage and build international networks within the legal profession while providing a unique opportunity for non-French lawyers to discover practice in the French capital. The first four weeks of the programme took place at the École de Formation du Barreau (the Paris Bar School) in a series of classes covering aspects of the French legal system, European Union law, and international law from a Paris perspective. This part of the programme was spent as a group which provided an additional opportunity to discuss and compare aspects of the legal systems in participants’ home countries. Our cohort was also lucky enough to benefit from several group visits to buildings of legal significance in the capital. We were given a tour of the Conseil d’État, France’s supreme court of administrative justice, guided by a newly-appointed judge. We visited


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the Tribunal de Commerce to learn about the new English-speaking International Chamber of the Court, created in the wake of the Brexit referendum and the ensuing uncertainty about the appeal of the United Kingdom as a seat of European Union and international dispute resolution. My personal highlight was a tour of the Palais de Justice, much of which is closed to the public. Now home to the Cour d’Appel de Paris (Paris Court of Appeal) and the Cour de Cassation (France’s highest appeals court), the building of the Palais de Justice began its life in the sixth century as the residence of the King of France and includes the courtroom where Marie Antoinette was sentenced to death in 1793.

Interning in Paris The final four weeks of the programme were spent interning in a Paris law firm. The Paris Bar organised a placement for each participant depending on their individual experience and goals for the programme. I was placed in a mid-sized Italian firm, whose Paris office is a stone’s

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throw from the Arc de Triomphe. During my internship I was able to assist on matters involving insurance law, the French and EU laws of subrogation and questions of international jurisdiction, as well as attempting to describe New Zealand’s accident compensation scheme to a Franco-Italian lawyer (which is no small feat). I also had the opportunity to attend a procedural hearing at the Tribunal de Commerce de Versailles and attend a conference at the Italian Embassy. Aside from a commute to work that never got old and behindthe-scenes access to important buildings and legal institutions that are overflowing with history, I gained skills through the Programme du Stage International that will improve my practice in New Zealand. As a young lawyer, I was able to make connections with other practitioners from all over the world, I found a mentor in my supervising lawyer during my internship placement, I broadened my perspective and gained knowledge of new subject areas, and I acquired that “je ne sais quoi” quality that only comes from unique experiences. I spent two amazing months in Paris enjoying all that the city has to offer and I strongly encourage anyone with an interest in France, the European Union, international networking, or just a memorable addition to their career, to apply for the Programme du Stage International. ▪ Sarah-Kate Hoare is a solicitor within the Public Service. All views expressed are her own. 15


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Climate Change Response (Zero Carbon) Amendment Bill The Law Society has made a submission to the Environment Committee on the bill. The submission comments on drafting and technical matters, with the aim of improving its clarity, certainty and practical workability. Noting that the clarity and precision of language used in the bill is of critical importance, the submission says when reviewing the bill the committee should ensure there is

no confusion between the effects on climate change (that is, the emissions which cause climate change) and the effects of climate change (the outcomes of climate change). It says the importance of the distinction has been highlighted in litigation under the Resource Management Act, where the words “the effects of climate change” in s7(i) have been held not to comprehend the matters which cause climate change.

“’the effects of climate change’ has been confined to the consequences of climate change. Emissions have an effect on climate change while adaptation is a response to the effects of climate change.” The Law Society recommends that the bill is carefully reviewed to ensure a clear distinction is maintained between addressing the causes of climate change and managing the consequences of climate change. ▪

Infringement offence created by bill raises issues The Law Society has pointed to Bill of Rights issues which stem from an infringement offence created by the Smoke-free Environments (Prohibiting Smoking in Motor Vehicles Carrying Children) Amendment Bill. The bill creates an infringement offence of smoking in a motor vehicle, whether moving or stationary, that is on the road and has a child (under 18 years old) occupant.

In a submission on the bill, the Law Society says Legislation Design and Advisory Committee Guidelines 2018 identify two issues applying to infringement offences that have not been addressed. These are, what defences, if any, should be available, and on whom the burden of proof should lie. The infringement offence created by the bill does not provide for either a defence or an absence of fault, so it is prima facie an absolute

liability offence according to the Guidelines’ criteria. The Guidelines state that absolute liability offences are almost never used. If legislation is silent on mental element or available defences the courts will generally infer a mental element, but that can create uncertainty. The Law Society says consideration should be given to whether any defences should be available, and if so, they should be specified in the bill. ▪

Receipt of LawPoints and NZLS Weekly The Law Society’s weekly enewsletter LawPoints is automatically sent on Thursday evenings to all lawyers who currently hold a practising certificate, unless they unsubscribe. Because of the anti-spam settings of some servers, LawPoints may be blocked in some organisations. The Law Society has also had some problems recently with changes implemented by our US-based LawPoints distributor MailChimp which have removed some previous recipients from the distribution list. If you do not receive LawPoints or have stopped receiving it without unsubscribing, contact angela.ludlow@lawsociety.org.nz. A public version of LawPoints, NZLS Weekly, is also available free of charge each week to non-lawyers. To sign up, visit www.lawsociety.org.nz/news-and-communications/email-updates/nzls-weekly.

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New Zealand represented at POLA

New Zealand Law Society 150 years events

Law Society President Tiana Epati represented New Zealand at the 30th annual Presidents of Law Associations in Asia Conference. This was held in Kunming, China from 31 July to 2 August. POLA is a non-political organisation which provides a forum for the leaders of lawyer and bar associations across the Asia-Pacific region. ▪

Law Society branches are holding or have held a number of events and court sittings to recognise 150 years. Dates for some are still to be confirmed. 16 August: Gisborne branch dinner, Gisborne. 24 August: Nelson event, Nelson. 27 August: Nelson branch lawyers’ photo, Nelson.

Confidential electoral roll process outlined in Practice Briefing With the 2019 local authority elections approaching, the Law Society has updated its Practice Briefing on the confidential unpublished electoral roll. Section 82 of the Electoral Act 1993 requires anyone who is qualified to be registered as an elector to register. Details of electors are compiled to create rolls for each electoral district. Section 106 requires the electoral rolls to show the names, residences and occupations of all enrolled electors and, under section 110, copies of the rolls must be kept for inspection at the Office of the Registrar of Electors. Section 115 allows the Electoral Commission to direct that the name and particulars of a person not be published or available for inspection “where the Electoral Commission is satisfied, on the application of any person, that the publication of that person’s name would be prejudicial to the personal safety of that person or his or her family”. Details of such a person are still recorded, but on what the Commission refers to as the “confidential unpublished roll”. The unpublished roll is confidential and it can only be viewed by the Registrar of Electors for the electorate the person is enrolled in. The Practice Briefing provides information on how applications can be made, how long names stay on the roll and how someone on the roll can vote. ▪

4 September: Wellington special High Court sitting. Photo of those in attendance, Wellington. Manawatu branch gathering, Palmerston North. 5 September: Canterbury-Westland special High Court sitting, Christchurch. 6 September: Wellington branch dinner (to be confirmed). 4 October: Waikato Bay of Plenty branch dinner, Hamilton. 16 October: Waikato Bay of Plenty special High Court sitting, Hamilton followed by Past Presidents/Vice Presidents lunch together with local judiciary and branch council. 24 October: Otago branch special High Court sitting. Ethel Benjamin Address. Branch dinner, Dunedin. 26 October: Auckland branch special High Court sitting, Auckland. 1 November: Southland branch special High Court sitting. Branch dinner, Invercargill. To be announced: Taranaki branch special High Court sitting, New Plymouth. Whanganui branch special High Court sitting, Whanganui.

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A Changing Profession NEW ZEALAND L AW S O C I E T Y 1869-2019 BY GEOFF ADLAM

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◂  Portrait of Sir James Prendergast, ca 1890–1900 Ref: 1/2-031752-F. Alexander Turnbull Library, Wellington, New Zealand

On 20 November the New Zealand Law Society Act 1869 Amendment Act 1877 makes it lawful for Law Society members to form a district law society in any Supreme Court district and to elect a Council.

The New Zealand Jurist says the number of legal practitioners in New Zealand is 225.

1869

1870

On 19 February by warrant the Governor appoints a 12-man Council with James Prendergast, AttorneyGeneral, as President.

1875

1876

1877

James Prendergast is appointed Chief Justice. As far as can be determined, no successor as President was appointed.

On 3 September Parliament passes the New Zealand Law Society’s Act 1869, for all barristers and solicitors of the Supreme Court lawfully practising within the Colony of New Zealand to “for ever hereafter be and be called one body politic and corporate in deed and in law by the name of style of ‘The New Zealand Law Society’.” The New Zealand Law Society is the second lawyers’ organisation to come into existence. On 16 October 1868 the Canterbury District Law Society was established at a meeting in Christchurch.

▸  New Zealand Law Society’s Act 1869 New Zealand Acts As Enacted, NZLII 19


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◂  Sir Āpirana Ngata, photographed in 1910 by Herman John Schmidt Ref: 1/1-001566-G. Alexander Turnbull Library, Wellington, New Zealand

O n 1 8 Fe b r u a r y t h e Hawke’s Bay District Law Society is founded.

On 12 August the Nelson District Law Society is founded.

1878

1879

1882 On 6 June the Marlborough District Law Society is founded.

On 31 January Westland District Law Society is founded. On 6 March the Taranaki District Law Society is founded. On 7 June the Law Society of the District of Otago and Southland is founded. On 26 August the Wellington District Law Society is founded.

On 11 November the District Law Societies Act 1878 deems the 1877 amendment “ineffective” and establishes firm rules for formation of District Law Societies. Any District member “aggrieved by the decision” of the District, has a right of appeal to the Council of the New Zealand Law Society. Amendment Acts in 1879 and 1882 are introduced. On 21 December the Southland District Law Society is founded.

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1885

1885

▾  New court room interior being constructed, Court of Appeal, Wellington. Evening Post photographer, 15 Jan 1960 Ref: EP/1960/0162-F. Alexander Turnbull Library, Wellington, New Zealand


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On 26 March Āpirana Turupa Ngata (later Sir Apirana) is the first Māori to be admitted as a barrister and solicitor. On 3 May Walter Scott Reid is unanimously elected the first President of the New Zealand Law Society. SolicitorGeneral for a record 25 years from 1875 to 1900, Mr Reid is the only in-house lawyer to have held the role. On 10 May Ethel Benjamin becomes the first European woman to be admitted as a barrister and solicitor. She is followed nine years later by Matilda Monteith and Eliza Melville (both admitted 1906), Geraldine Hemus (1907), Annie Rees (1910), Hariette Vine (1915) and Lyra Taylor (1918).

On 7 June 10 King’s Counsel are appointed: the first in New Zealand. 112 years later, 317 members of the profession have been honoured with the rank.

Sir Francis Henry Dillon Bell KC becomes President in January and remains so until 1918 – the longest tenure of any President. His equally long CV includes terms as Mayor of Wellington, a founder of Bell Gully, one of the first King’s Counsel, Cabinet Minister, acting Prime Minister four times, and Prime Minister for 16 days in 1925.

On 11 September The Female Law Practitioners Act 1896 allows women aged 21 and over to be enrolled as a barrister or solicitor.

1896

In February the Gisborne District Law Society is founded.

1897

1901

1907

▸ Dunedin Court opening 1902 Otago Witness, 2 July 1902. Photo courtesy of the Otago Daily Times 21


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◂  Wellington District Law Society building, Wellington. Duncan Winder, ca 1962–1965 Ref: DW-1299-F. Alexander Turnbull Library, Wellington, New Zealand.

On 4 August in the great 1908 Statutes Consolidation, the Law Practitioners Act 1908 brings together 12 previous Acts which regulate the legal profession. District Law Societies are empowered to issue practising certificates and to institute prosecutions and other proceedings for breach of any statute or rules relating to the practice of law in the district, with right of appeal to the Council of the New Zealand Law Society. The New Zealand Law Society’s Council is to consist of representatives of each of the Districts and the Council is to elect the President and Vice-President.

Lieutenant Herman Baddeley, 23, was killed on 25 April 1915 during the first day of the Gallipoli invasion. He was the first of 54 lawyers and a similar number of law clerks who died while serving during World War I. Quartermaster Sergeant Benson Wyman, 36, and Private Percy Henderson, 24, both died of influenza in New Zealand on 15 November 1918, the last of the lawyer soldiers who died because of the war.

On 23 October the Wanganui District Law Society is founded.

On 8 December the Hamilton District Law Society is founded.

1908

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1913

1914-1918


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◂  Portrait of Sir Charles Perrin Skerrett. Hardie Shaw Studios of Wellington, ca 1900–1910 Ref: PAColl-6418-1-12. Alexander Turnbull Library, Wellington, New Zealand.

A Royal Commission on University Education issues a report which is very critical of the quality of legal education and says the phrase “learned counsel” is in danger of becoming a sarcasm.

Charles Perrin Skerrett KC becomes President. He served until 1 February 1926 when he was appointed Chief Justice and knighted. His time as Chief Justice was short and he died at sea en route to England on 13 February 1929.

1918

1919

◂ Left: Walter Scott Reid Published in Portrait of a Profession: The centennial book of the New Zealand Law Society, 1969. Original source unidentified. ◂ Right: Ethel Benjamin ca 1896 Hocken Library, University of Otago.

1923 Harold Herbert Carr is appointed to the bench of the Native (later Māori) Land Court, the first Māori to be appointed a judicial officer.

1924

1925

Henry Ah Kew becomes the first person of Chinese ethnicity to obtain an LLB (from Auckland) and to be admitted as a barrister and solicitor.

New Zealand has 1,102 practising lawyers (1,096 men and six women as Ethel Benjamin has moved to England). That gives one lawyer for every 1,102 people.

▸  View of Victoria Street, Hamilton. William A Price, ca 1905–1915 Ref: 1/2-001326-G. Alexander Turnbull Library, Wellington, New Zealand. 23


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▸ Group photograph of members of the Wellington legal profession. Muir and Stewart, 1903 Ref: PA7-49-33. Alexander Turnbull Library, Wellington, New Zealand.

A l e x a n d e r G r a y KC becomes President and remains so until his death on 28 April 1933. He was knighted in the 1933 New Year’s Honours. The first of what becomes a long-running series of triennial Law Society conferences is held in Wellington. Dwindling interest and the development of other forms of communication saw the last conference held in Christchurch in 2001.

1926

1928

1929

1930

1932

The Rules Committee is established by statute to take over rule-making for the superior courts. On 25 October the Law Practitioners Amendment Act 1930 requires the University of New Zealand to hereafter conduct the examination of candidates for admission as barristers or solicitors. The New Zealand University Amendment Act 1930 establishes the Council of Legal Education to enable the University to do so. There are 1,779 practising lawyers – one for every 825 people. On 7 November the Law Practitioners Amendment (Solicitors’ Fidelity Guarantee Fund) Act 1929 makes the first legislative provision for a Fidelity Fund, administered by the Law Society’s Council.

◂  Charles Herbert Treadwell, ca 1934 Ref: PAColl-8972-3-05. Alexander Turnbull Library, Wellington, New Zealand.

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On 1 January most of the Law Practitioners Act 1931 comes into force after receiving the Royal assent on 11 November 1931. The New Zealand Law Society is established (but declared to be the same Society as the one constituted under the 1908 Act) and deemed to consist of all practitioners who are members of any District Law Society.


N E W Z E A L A N D L AW S O C I E T Y

◂  Corner of Stuart street and Castle street showing the Dunedin Court

On 18 August the New Zealand Council of Law Reporting Act 1938 comes into force, formally incorporating the body established in 1883 and responsible for publication of the New Zealand Law Reports.

Humphrey O’Leary KC (later Sir Humphrey) becomes President and remains so until 1946 when he is appointed Chief Justice. “As President he enjoyed tremendous popularity and goodwill all over the country. In Council he was an excellent chairman, probably at his best with broad issues for he was not a man to be bothered with trivia,” Sir Richard Wild wrote in Portrait of a Profession. On 26 October section 33 of the Law Practitioners Amendment Act 1935 prevents anyone from practising as a solicitor on their own account without at least three years’ legal experience.

1932

1933

1935

In April Olive Virginia Malienafau Nelson becomes the first Samoan to graduate LLB. In August she is admitted as a barrister and solicitor, the first Samoan and Pacific woman to be admitted.

1936

1938

Charles Treadwell KC becomes President at the age of 71 – the oldest President. He retired after under two years, having brought to the office “an aura of immense dignity,” says Portrait of a Profession.

The Law Society’s Disciplinary Committee is established.

▸  Olive Nelson Ref: Williams, N. (2009). A View From the back, Spaces between times: Equality of educational opportunity and Pacific students at a University. (Doctoral thesis). 25


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◂  Humphrey Francis O'Leary, his wife and son. 17 October 1932 Ref: PAColl-6301-21. Alexander Turnbull Library, Wellington, New Zealand.

1939

1939 – 1945

1946

1949

A Law Society plaque lists 913 principals and law clerks who served with the Forces during World War II. Of these, 21 died while serving. New Zealand’s current longest-practising lawyer is admitted (we’re preserving their anonymity). There are 1,784 practising lawyers – one for every 1,039 people and up 1.7% on a decade earlier. On 7 October the Legal Aid Act 1939 receives the Royal assent. It allows the making of regulations to authorise the Law Society to establish committees and panels of legal practitioners for the assistance of poor persons, “and for this purpose to require practitioners to serve on those committees and panels and to undertake the advising of poor persons and the conduct of litigation on behalf of poor persons; and empowering the New Zealand Law Society to delegate any of its functions under the regulations to any District Law Society.” There are 1,754 practising lawyers, a decrease of 1.4% on a decade earlier.

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Philip Cooke KC, MC (later Sir Philip) becomes President and serves until his appointment to the bench in 1950. In the examination of proposed post-war legislation during his time as President, he rendered very valuable unpaid service which the Government warmly appreciated, says Sir Richard Wild in Portrait of a Profession.


N E W Z E A L A N D L AW S O C I E T Y

◂  Major General W Cunningham. Evening Post, 14 March 1951 Ref: 114/268/08-G. Alexander Turnbull Library, Wellington, New Zealand.

On 1 January the Law Practitioners Act 1955 comes into force after receiving the Royal assent on 27 October 1954.

1950

1954

1956

Timothy Cleary (later Sir Timothy) becomes President. Revised law practitioners’ legislation and establishment of a permanent Court of Appeal were key focal points during his term. He left the presidency to go straight to the new Court of Appeal in 1958 (after declining judicial appointment for a decade), one of just three judges ever appointed directly to that court.

Lalbhai Patel is the first person of Indian ethnicity to be admitted as a barrister and solicitor. William Cunningham becomes President at the age of 67. He attained the rank of Major-General during the War, was Wellington Crown Prosecutor for many years and became the first President to represent New Zealand at a Law Conference overseas – in Australia in 1951. He joined Sir Alexander Grey in being knighted on his retirement from the role.

▸  Timothy Patrick Cleary. S P Andrew Ltd, ca 1955 Ref: 1/4-020261-F. Alexander Turnbull Library, Wellington, New Zealand. 27


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On 23 October the three members of the newly established Court of Appeal are appointed: Kenneth Gresson as President, and Alfred North and Timothy Cleary as Judges of Appeal. Harold Barrowclough CJ is ex officio head of the court. The establishment of the court was widely welcomed with discussions at the Law Society’s 1954 Conference providing impetus.

On 17 February a permanent Court of Appeal sits for the first time in the Wellington Supreme Court building. It secured its own premises in February 1960. Allan Buxton becomes the 10th President. He died aged 64 while serving in the role. During his term the Council dealt with some difficult questions of professional privilege, began a study into retirement schemes, and entertained a further group of overseas guests. In the short space of two years, made none the easier by a change in secretarial staff, Mr Buxton served the Society well, says Sir Richard Wild in Portrait of a Profession.

1957

1958

▾  Right Honorable Sir Kenneth Gresson. Crown Studios of Wellington, 1964 Ref: 1/2-194721-F. Alexander Turnbull Library, Wellington, New Zealand.

▴ Chief Justice, Sir Harold Barrowclough (left) and Registrar, G R Holder being escorted by Constable W J Firmin to the new Court of Appeal, Ballance Street, Wellington. Evening Post, 5 Feb 1960 Ref: EP/1960/0507-F. Alexander Turnbull Library, Wellington, New Zealand.

1959

1962 On 30 March the Manawatu District Law Society is founded. On 1 August work begins on construction of a national office for the Law Society at 26 Waring Taylor Street. Completed in 1964 at a cost of £250,812 it was funded by a £5 increase in practising fees for four years. Denis McGrath was the key player in overcoming opposition and ensuring delivery of the building. Edward Denis (later Sir Denis) Blundell becomes President. His tenure sees completion of the Law Society’s national office building. He was knighted in 1967 in recognition of his services to the legal profession. Sir Denis was the first resident New Zealander to be appointed GovernorGeneral, in 1972.

Margaret Smith is admitted as a barrister and solicitor, the 46th woman. New Zealand has 2,113 practising lawyers – one for every 1,096 people. David Perry becomes President. He instigated the move to obtain a permanent home for the Law Society, enhanced the status of the triennial conference and oversaw Law Society decisions to appoint an audit inspector of all trust accounts and to adopt a general policy under which public statements would be made on matters of controversy where legal principle was involved.

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◂ New Zealand Law Society building, Wellington. Duncan Winder, ca 1962–1965 Ref: DW-1289-F. Alexander Turnbull Library, Wellington, New Zealand.

Stanley Tong becomes President. He is the first non-Wellingtonian to hold the office. He travels to many law conferences overseas and establishes enduring relationships with law organisations and the judiciary in a number of countries.

Georgina te Heuheu (later Dame Georgina) is the first Māori woman to be admitted as a barrister and solicitor.

1968

1969

Denis McGrath becomes President. During his term he oversees assertion of control over contributory mortgage management by means of the nominee company system and the centenary of the Law Society in 1969.

1970

1971

1972

On 1 April the Legal Aid Act 1969 comes into force, removing responsibility for legal aid from the Law Society and establishing a Legal Aid Board. In June Ken Mason is sworn in as a Stipendiary Magistrate (and later a District Court Judge), becoming the first Māori to be so appointed. He retired in 1988. In September the Ponsonby Citizens Advice Bureau opens. NZ’s first CAB, it offers free legal advice thanks to waivers given by the Auckland District Law Society.

The Law Society centenary is marked by commissioning of a Coat of Arms, the issue of a set of three stamps on 8 April, an international conference at Rotorua from 8-11 April, publication of a history, Portrait of a Profession, edited by Robin Cooke (later Lord Cooke of Thorndon), a Centennial Scholarship and a special tie.

▸ Members of the Court of Appeal sitting in the new courtroom, from left, Justice North, Justice K M Gresson, Justice Cleary and the Registrar G R Holder, (front), Ballance Street, Wellington. Evening Post, 8 Feb 1960 Ref: EP/1960/0508-F. Alexander Turnbull Library, Wellington, New Zealand. 29


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In September Augusta Wallace (later Dame Augusta) is appointed a Stipendiary Magistrate (later a District Court Judge), the first woman to be appointed to the bench. The Law Society runs 19 one-day seminars around New Zealand to begin its role as a provider of continuing legal education. Just under 1,000 lawyers attend. Three years later, in 1977, 35 seminars are provided with 2,400 registrants. The first year that records are available by gender, perhaps recognising the increasing number and influence of women in the profession. Of New Zealand’s 3,512 lawyers, 168 (4.6%) are women. Laurence Southwick QC becomes President. His advocacy for continuing legal education saw appointment of the first Law Society education director, and he was a fervent proponent for using interest on trust accounts for funding of areas such as education, says Alan Ritchie in Law Stories.

▴  The second issue of LawTalk, published 26 July 1974

The Honourable Rex Mason Prize for Excellence in Legal Writing is established to commemorate former Attorney-General and Minister of Justice Henry Greathead Rex Mason (1885-1975). It is New Zealand’s oldest legal writing prize.

1973

1974

In June the Grey Lynn Neighbourhood Law Office opens in Auckland, the first community law centre under a Law Society pilot. John Wilson is its first full-time lawyer and initital funding comes from the Law Society.

1975

1977

In February the first issue of “The New Zealand Law Society’s News Sheet” is published with an asterisk where the title should be. Lawyers are asked to suggest a name and the fourth issue is called LawTalk. On 29 March Guy Smith becomes President but dies of a heart attack in Germany in July while on a world tour with his wife. “I suppose I would like to create the atmosphere in which all those who practise law can feel that they’re giving their best, and that they’ve got all the opportunities open to them to give a measure of public service,” Mr Smith said in an interview published in the second, April, issue of LawTalk. “We have to make the profession attractive to young men and women.” On 1 April the Accident Compensation Act 1972 comes into force, radically reducing or changing personal injury practice for many lawyers. In August Lester Castle becomes President. A 1987 obituary in LawTalk says as President his diplomacy and skill and fundamental commonsense in dealing with many difficult situations shone through. CLE seminars through the Law Society began during his term. He was appointed an Ombudsman in 1977 and Chief Ombudsman in 1984.

30

▴ Henry Greathead Rex Mason. Thorpe Studio of Pukekohe, ca 1930s Ref: PAColl-4415-09. Alexander Turnbull Library, Wellington, New Zealand.


▴  Corner of Lambton Quay and Ballance Street, Wellington, showing the Magistrates Court Ref: 1/1-015601-F. Alexander Turnbull Library, Wellington, New Zealand.

1979

1980

1981

On 9 February Mary Finau Tuilotolava is the first Tongan woman admitted as a barrister and solicitor.

Thomas Eichelbaum QC (later Sir Thomas) becomes President. He was an important contributor to the reforms in the 1982 Act. A major interest during his term as President was the maintenance of professional competence and a credible public image in a time when the “traditional aura and mystique of professions” no longer sufficed. Appointed to the High Court in October 1982 he became Chief Justice in 1989, the first already-serving judge to be appointed.

Major changes are made to the court system, with Magistrates’ Courts renamed District Courts, the Supreme Court the High Court, and establishment of specialist Family Courts. The changes have been driven by recommendations from the 1978 Beattie Royal Commmission. In April Avinash Ganesh Deobhakta is sworn in as the first District Court Judge of Indian ethnicity.

▴ Dame Augusta Wallace

In September Silvia Cartwright (later Dame Silvia) is the second woman to be appointed a District Court Judge. 31


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The growing number of community law centres form the Coalition of Community Law Centres Aotearoa, to act as an umbrella body. This coincides with the first definite decision by the then Department of Justice to provide funding for all CLCs. A group of barristers forms the Criminal Bar Association, to further and promote the practice of criminal law. In November the Law Society abolishes the Scale of Professional Charges which fixed prices for conveyancing. The profession has to focus on providing a “good, efficient and well conducted conveyancing service at a reasonable cost,” President Bruce Slane says.

On 1 April the Law Practitioners Act 1982 comes into force after receiving the Royal assent on 4 December 1982. The Act continues the New Zealand Law Society, which it says “shall consist of all practitioners who for the time being are members of any District Law Society and hold current practising certificates”.

1982

1983

Peter Clapshaw becomes the 20th President. His “fair and gentlemanly approach” in the face of abolition of the scale, lessening of restrictions on advertising, the dawn of Rogernomics and major institutional reform “made him, in many ways, the ideal president at a time when the profession was rather catching its breath,” says Alan Ritchie in Law Stories. Mervyn Rogers retires as Law Society Secretary after 14 years in the role. He is succeeded by Alan Ritchie, as Executive Director

1984

1985

The New Zealand Law Foundation is established as an independent trust. It begins its funding operations in 1992 with grants for legal research, public education on legal matters and legal training. Bruce Slane (later Sir Bruce) becomes President. An outstanding communicator, he wrote a regular column in LawTalk, was a strong advocate for the increasing number of women entering the profession, pushed for abolition of the scale of charges and worked hard to make the Law Society a more public advocate in law reform. He was appointed the first Privacy Commissioner in 1993.

32

▴ Representatives of the Whanganui River tribes and their solicitor D G B Morison. Taken at the Dominion Museum in 1945, by an unidentified photographer Ref: PAColl-2427-1. Alexander Turnbull Library, Wellington, New Zealand.


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On 1 February the Law Commission Act 1985 (assented to on 9 December 1985) comes into force, establishing the Law Commission which has the role of reviewing, reforming and developing New Zealand law.

▴  From left to right: Dame Sian Elias, Dame Judith Potter and Dame Lowell Goddard. Sian Elias and Lowell Goddard were the first women QCs and Judith Potter was the first woman President of a District Law Society (and later NZLS)

1986

1987

On 1 March the Fair Trading Act 1986 comes into force, bringing to an end lengthy discussions, committee investigations and arguments over the right of lawyers to advertise. On 29 May Margaret Lee is sworn in as the first District Court Judge of Chinese ethnicity. The Corporate Lawyers Association of New Zealand (CLANZ) is formed with Peter Lorrigan as President. Later renamed ILANZ, it became the first section of the New Zealand Law Society in 1989. In August Anne Gambrill is appointed a Master of the High Court (now Associate Judge). She is the first woman appointed to the senior court bench. She is the seventh woman appointed to the judiciary. The Auckland District Law Society establishes the LINX legal information database and is later joined by the Canterbury and Wellington District Law Societies in maintaining and developing the database. Major research commissioned by the Law Society among the public, includes a question about their preference between male and female lawyers (who comprise 15% of the profession). 67% have no preference, 21% state a preference for a male lawyer, and 9% a preference for a female lawyer.

▴ Dame Silvia Cartwright

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On 4 March Sian Elias and Lowell Goddard are the first women to be appointed Queen’s Counsel. Te Hunga Rōia Māori o Aotearoa The Māori Law Society is formally established in John Chadwick’s Rotorua garage. Graham Cowley from Hawke’s Bay becomes President, the first from a region outside the main centres. “He spearheaded reform of the Law Society’s own rules, its ethical rules and solicitors company nominee rules. His conciliatory approach helped to smooth relations between the Law Society and the [recent NZ Bar Association]," says Alan Ritchie in Law Stories. Judith Potter (later Dame Judith) is elected President of the Auckland District Law Society, the first woman to hold that role for any of the district law societies. In July the Association of Independent Counsel Inc is incorporated, becoming the New Zealand Bar Association after resolution of differences with the Law Society. Ted Thomas (later Sir Edward) is elected inaugural President on 8 June 1989.

▴ Dame Judith Potter

1988

1989

On 1 February substantial parts of the Bay of Plenty and Thames/Coromandel area are transferred from the Auckland District Law Society to the Hamilton District Law Society. The name Waikato Bay of Plenty District Law Society was adopted in 1993. On 1 November the Children, Young Persons, and Their Families Act 1989 commences, establishing the Youth Court and other major family law reform. In December the Arbitrators’ and Mediators’ Institute of New Zealand is established to replace the NZ Branch of the Chartered Institute of Arbitrators. AMINZ is a non-profit body focused on maintaining high standards for all aspects of dispute resolution,

1991

On 1 February the Legal Services Act 1991 comes into force, giving the first statutory recognition of community law centres. On 13 April it is revealed that two partners in the Upper Hutt firm Renshaw Edwards are responsible for the largest fraud by a law firm. Pat Renshaw (theft of $6.4 million of client money) and Keith Edwards (theft of $3.5 million of client money) both receive sentences of imprisonment. The thefts along with others leave the lawyers’ fidelity fund facing claims of over $30 million, compared with $6.7 million in total for the previous six years. The money was raised by a special levy on the country’s 2,700 partners or lawyers in sole practice, with each having to pay $10,000 over five years.

Judith Potter (later Dame Judith) becomes the first woman President of the Law Society. President during the Renshaw Edwards affair (see 1992), she received much praise for her poise, accessibility and management of the issues, but also endured some abuse from both the profession and the public. She publicly stated that the deregulated economy meant there was no longer a need for lawyers to be involved in lending money. She was closely involved in establishment of the NZLS Women’s Consultative Group, instigation of the Law Society Board and reform of law practioner legislation. Dame Judith was appointed to the High Court in March 1997.

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1992


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Austin Forbes QC becomes President, the first from the South Island. He has the task of continuing to repair the damaged image of the profession after Renshaw Edwards and becomes a very popular and respected public figure. His speech to the 1996 triennial conference in Dunedin was entitled “Profession in Crisis” and widely televised and reported. Law Society-commissioned research among both public and the profession in 1997 shows the profession still enjoys a high level of respect and trust.

▴ Sir Edward Durie

I n Ju ly Ju d ge S i lv i a Cartwright becomes the first woman appointed as a Justice of the High Court.

In February it is revealed that the Law Society has taken out a $7.3 million loan to comply with a High Court ruling that it must pay Renshaw Edwards claims immediately. In November the Law Society sues Renshaw Edwards’ auditors Clark Fitzgerald for $24.6 million. The Society of Accountants no longer has a fidelity fund after paying out $12 million for an Auckland accountant’s actions. In June 1996 the Law Society settles the claim against Clark Fitzgerald out of court. Details are kept confidential.

At 1 November it is revealed that 266 (52.1%) of the 511 lawyers admitted that year were women – the first time more women than men have been admitted.

1993

In November Lowell Goddard (later Dame Lowell) is appointed to the High Court – the first woman of Māori ethnicity to be so appointed. Sian Elias (later Dame Sian) is also appointed to the High Court.

1994

1995

1997

1998

Ian Haynes becomes President. Reform of the legislation regulating the practice of law is a key element of his presidency. He travelled widely around the country to present a model Law Practitioners Act and “gave the process and the profession a real chance in the face of menacing political attention,” says Alan Ritchie in Law Stories. The Family Law Section of the Law Society is established to represent the interests of family law practitioners. In 2019 it has just over 1,000 members. A Law Society survey of the public shows that 84% would prefer to resolve their disputes out of court.

In October Edward (later Sir Edward) Durie is sworn in as the first man of Māori ethnicity to be appointed to the High Court. ◂  Dame Lowell Goddard

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◂ Christine Grice

On 22 February A’e’au Semikueiva Epati is sworn in as a District Court Judge at Manukau District Court, the first judge to be appointed of Samoan and Pacific ethnicity. On 24 September Ida Malosi is sworn in as a Family Court Judge, the first Samoan and Pacific Island woman. In 2013 she becomes the first woman judge to preside in the Supreme Court of Samoa. On 4 November Ajit Swaran Singh is sworn in as a District Court Judge. He is the first Fiji-born Indian to be appointed to the District Court bench.

1999 On 17 May Justice Sian Elias is appointed Chief Justice: the first woman appointed to the role. New Zealand has 8,151 practising lawyers – one for every 470 people. On the bench are seven Court of Appeal Judges, 32 High Court Judges, five Masters and 118 District Court Judges.

2000

2001

2002

The Pacific Lawyers Association is established. A key objective is promoting fellowship, mutual support and continuing legal education for Pacific lawyers. On 2 October Denise Clark is sworn in as a District Court Judge on Tematekapua Marae in Rotorua. She is the first Māori woman appointed as a District Court Judge and it is also the first time a judge has been admitted to the bench in a ceremony held on a marae.

Christine Grice becomes President and is the second woman in the role. She is the youngest person to have ever been elected President. It is also the first election where all three candidates are women. The impetus for reform of the practice of law continues during her presidency. In the 2004 New Year's Honours she is appointed a Companion of the New Zealand Order of Merit for services to the legal profession. The proportion of women admitted reaches 60% – 440 women and 288 men. In April the Property Law Section of the Law Society is established to represent the interests of property law practitioners. In 2019 it has over 1,500 members.

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On 20 March the Lawyers and Conveyancers Act 2006 receives the Royal assent after its third reading on 14 March. It brings about the most far-reaching reform in regulation of the legal profession and has the purpose of protecting the consumers of legal services, maintaining public confidence in the legal profession and recognising the status of the legal profession. This becomes the mandate of the New Zealand Law Society which is to issue practising certificates and regulate the legal profession. District Law Societies are dissolved six months after commencement of the Act. After much debate, all but one of the 14 district law societies vote to combine their assets with the New Zealand Law Society to form “one society”. They become branches.

▴ Mr Tere Mataio, first Cook Islander to qualify as a solicitor, with Professor C C Aikman and Mr Mathison. Evening Post, 3 Jun 1960 Ref: EP/1960/2023-F. Alexander Turnbull Library, Wellington, New Zealand.

2003

2004

John Marshall QC is elected President. During his presidency he tirelessly works to explain the “one society” model and also to respond to negative comment resulting from the Bazley report on legal aid. He is also a strong advocate for increased pro bono and later instigates the successful Practising Well initiative.

2006

2007

In May a pilot Public Defence Service begins in Auckland. The success of the pilot leads to the roll-out of the service in major population centres, ending with Hawke’s Bay in 2012. On 1 July the Supreme Court sits for the first time. Chris Darlow is elected President. He is closely involved over his whole presidency in work on the proposals for major reform of the regulation of legal services and creation of a new role of registered conveyancer. In 2008 he is made a Member of the New Zealand Order of Merit for services to the law. The Landonline electronic titles system is completed at a cost of $141 million, introducing a new era of digital land titles registration. In October 2018 Cabinet accepts a $128 million business case to progressively rebuild the system over five years. On 24 June the Lawyers and Conveyancers Bill is introduced by Mark Burton. It receives its first reading on 29 July, is reported from the Justice and Electoral Committee on 27 July 2004 and receives a second reading on 29 March 2005.

▴ New Zealand Law Society Council in 2010, President Jonathan Temm 37


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Jonathan Temm becomes President. Just the second President from outside the main centres, he is active in communicating the Law Society’s viewpoint on major changes to legal aid, the One Society Model, development of the Law Society’s regulatory expertise and a wide range of law reform developments, including the Criminal Procedure Act 2011 and major family law changes. Former President Christine Grice becomes Executive Director, succeeding Alan Ritchie. On 4 September the first of two devastating Canterbury earthquakes has a severe impact on the region’s legal profession. Led by the CanterburyWestland branch the Law Society co-ordinates many offers of assistance and support from lawyers around the country.

On 1 July most of the Legal Services Act 2011 comes into force, introducing major changes to legal aid, including fixed fees for lawyers.

On 1 October completion of the Law Society’s Stepping Up programme becomes mandatory for barristers sole.

▴  Kathryn Beck

2008

2009

On 1 August the Lawyers and Conveyancers Act 2006 comes into effect. On 1 October, seven Senior Counsel are appointed – the first and last time the title has been confered. All subsequently took the title Queen’s Counsel.

On 1 February, all but one of the former districts become branches of the New Zealand Law Society. A new Auckland branch is established and Canterbury and Westland amalgamate. In June John Marshall launches Practising Well, the Law Society’s health and wellbeing initiative. On 27 November Dame Margaret Bazley’s report “Transforming the Legal Aid System” is released. Among her findings, she says over 200 corrupt lawyers are rorting taxpayer-funded legal aid. 38

2010

2011

▾ Admission of Te Wehi Wright, 2018

2012


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Chris Moore becomes President. His presidency includes securing final agreement on changes to the intervention rule for barristers, a busy programme addressing and encouraging law students and young lawyers, a focus on advancement of women in the profession which includes chairing the Women’s Advisory Panel and advocacy of access to justice.

On 5 December the Law Society and NZ Bar Association launch the Gender Equitable Engagement and Instruction Policy, with the key objective of policy adopters aiming to increase the number of women leading court proceedings.

On 16 May 26 barristers are appointed Queen’s Counsel – the most ever in an appointment round, and the first formal round of appointments since 2008. On 1 October the Law Society introduces a requirement for lawyers to complete at least 10 hours a year of continuing professional development. The innovative scheme is self-directed.

On 1 September Justice Mark Cooper is appointed a permanent judge of the Court of Appeal, the first person of Māori ancestry to be appointed to the Court.

2013 ▾ Soana Moala

2014

Executive Director Christine Grice is appointed to the High Court bench. Mary Ollivier becomes Acting Executive Director.

On 1 July changes to the Intervention Rule come into effect with barristers able to apply to Law Society for approval to accept instructions directly from clients without an instructing solicitor.

2015

2016

2017

Kathryn Beck takes office as the 30th President. She continues the strong focus on the advancement of women, and a broadening focus on diversity in the profession, access to justice and communication to Law Society branches. The #Me Too developments in 2018 place her under intense pressure but she provides strong and visible leadership of the profession. “I’m a bit bruised, last year took its toll and I struggled with some aspects of it but I never regretted being in this role,” she tells LawTalk in April 2019. “We were given a massive wake-up call … but as a profession we listened, we reflected and we accepted that things had to change. There is still a long way to go but people are willing and there is a momentum and genuine desire for change.” She continues to lead the Culture Change Taskforce. On 11 April at the memorial service for Judge Ian Borrin, the Michael and Suzanne Borrin Foundation, in memory of his parents, is announced. The $38 million charitable trust – one of New Zealand’s largest single purpose trusts – is devoted to legal education and research. On 1 June Mina Wharepouri is sworn in as a District Court Judge and becomes the first Tongan-born Judge. On 2 September Soana Moala is sworn in as a District Court Judge, becoming the first Tongan woman appointed to the bench.

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On 1 February, 13,530 New Zealand-based and 803 overseas-based lawyers hold practising certificates. Of these, 51.3% are women. On 7 March the Law Foundation announces it will be going into recess to allow its funding base to rebuild. The last funding round will be in June 2020. On 14 March the Law Society announces the appointment of an independent Board member. Social entrepreneur Jason Pemberton is the first non-lawyer to be involved in setting Law Society direction. On 9 April Helen Morgan-Banda becomes Executive Director of the Law Society. On 10 April Tiana Epati becomes the 31st President and fourth woman in the role. She is also the first person of Samoan ethnicity to be President. On 2 May Justice Joseph Victor Williams becomes the first Māori appointed to the Supreme Court. On 10 June NZAL Lawyers is launched in Auckland. A sub-group of NZ Asian Leaders, it aims to offer collegiality, guidance, and wisdom to the growing Asian legal community. On 3 September the Law Society completes 150 years as an organisation. ▴ Tiana Epati

2018

2019

On 14 February the Newsroom website reports “a pattern of sexually inappropriate behaviour” by some senior male lawyers at Russell McVeagh towards female university students who were summer clerks in Wellington in 2016. The resulting fallout places the role of the Law Society under intense scrutiny and a wide range of measures and support systems are subsequently introduced. On 20 February at the Supreme Court the Michael and Suzanne Borrin Foundation announces five inaugural grants totalling $1.7 million for criminal justice, family law and Māori legal research projects. On 1 March the Law Society announces a working group, to consider what improvements can be made to enable better reporting of harassment in the legal profession to the Law Society. Dame Silvia Cartwright is subsequently appointed chair, along with four other members. The working group reports in December and the Law Society Board accepts its recommendations and commits to taking action to get them implemented. On 12 April the Law Society launches its Gender Equality Charter which is a set of commitments around gender equality aimed at improving the retention and advancement of women in the legal profession. By August 2019 133 legal workplaces have signed the Charter. On 30 May the Law Society releases the results of its Workplace Environment Survey. With input from 3,516 lawyers this shows that nearly one third of female lawyers have been sexually harassed during their working life and more than half of all lawyers have been bullied at some time in their working life. President Kathryn Beck says the Law Society is committed to building a culture that is safe, inclusive, fair and just. She asks all lawyers and stakeholders to work with the Law Society and announces the formation of a taskforce to drive culture and systems change across the profession and to eliminate bullying and sexual harassment. On 1 July lawyers are required to comply with the Anti-Money Laundering and Countering Funding of Terrorism Act 2009. The Department of Internal Affairs is supervisor.

40


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UPDATE

E MP L O Y M E N T L AW

“Default” union enrolment widely supported, study finds BY LYNDA HAGEN Immediate opt-out right Nearly two-thirds of New Zealanders support automatic trade union enrolment for new job starters, provided they also have the right to opt out afterwards, according to research conducted as part of a Law Foundation-backed study. What’s more, support for a “union default” policy extends across society, regardless of political, occupational, income and other differences. The idea is backed by managers, employers, workers and the unemployed alike. Supporters of most of the main political parties favour it, including ACT – only National voters are marginally against, with just under half liking the idea. Study co-author Mark Harcourt, Professor at Waikato University School of Management, says the survey results surprised him. “Support for this cuts across the whole population – even the few groups against had large minorities in favour. I find this fascinating and heartening,” he says. The nationwide survey in May of 1,471 randomly-chosen people found that 60% of respondents favoured a union default policy. This complements the findings from in-depth interviews with 42 employment law experts, 70% of whom liked the idea. Professor Harcourt wanted to test the union default idea as a way of reversing declining union membership and the accompanying growth in income inequality over the past three decades. “I’m sure that the way people answered was motivated by their feelings about unions,” he says. “People were in favour largely because they think that unions are good for society and the workplace.” 42

The employment law experts convinced him that a union default had to be accompanied by an opt-out right, available immediately. This would overcome the argument that a union default would restore “closed shop” unionism. “None of the experts we spoke to want a return to compulsory union membership – they all favour choice,” he says. “Neither National nor Labour want to return to compulsory unionism, and the International Labour Organisation opposes it. So opt-out must be available to keep unions accountable, offering services that members want.” He says a major concern was that people will be “duped into membership” by being passively enrolled, without even thinking about it. “We were thinking about a stand-down period before allowing people to opt out, but we now realise that’s a bad idea. There has to be choice, available immediately and easily.”

Support from most groups The survey found that a majority of virtually every group studied in the survey favoured a union default. This included almost every ethnic group, both genders, all income groups except those earning more than $150,000, every educational group, almost all occupational groups (including managers), all groups by employment status (including employers). Perhaps surprisingly, 60% of managers supported union default, as did 62% of employers and 51% of self-employed people. Professor Harcourt isn’t lobbying for a union default policy with decision-makers just yet – he wants to tease out the rich data from the survey over the coming weeks, to build support for change. “We are thinking longer term. We’ve been in touch with other countries as well. I’m convinced that there is real potential in this.” Professor Harcourt co-wrote the study with Waikato Law Professor Margaret Wilson, Victoria University of Wellington law student Nisha Novell, and affiliate researcher Gregor Gall of Glasgow University. For more information on this and other grants made by the Law Foundation, visit www.lawfoundation.org.nz. ▪ Lynda Hagen  lynda@lawfoundation.org.nz is Executive Director of the New Zealand Law Foundation.


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The Zero Carbon Bill – a framework for New Zealand’s climate change journey BY DUNCAN BALLINGER Need for action on climate change Climate change is happening, and it is happening now. And it is caused by human activity. There is overwhelming scientific consensus about this (eg, BD Santer “Celebrating the anniversary of three key events in climate change science” Nature Climate Change, 25 February 2019). We are in a climate emergency, but we can, and should, do something about it. We can mitigate how bad the effects of climate change will get by reducing emissions of greenhouse gases. The international agreement reached in Paris in 2015 was that we should aim to reduce emissions so that there is no more than 1.5°C of global average temperature increases. That will require reducing global emissions of carbon dioxide by around 45% by 2030 and to net zero by around 2050 (Intergovernmental Panel on Climate Change (IPCC) “Global Warming of 1.5°C” (October 2018) at p 95). As well, we should prepare for the likely consequences of climate change, such as sea level rises and more frequent and intense storms. We have begun to see these consequences already, and they will likely get worse even if global average temperature increases are limited to 1.5°C. To date, New Zealand has not had a clear governing framework for reducing its emissions and planning for the effects of climate change. It has sought to reduce emissions through the emissions trading scheme (ETS), which puts a price on some greenhouse gas emissions. The ETS has been ineffective in inducing significant emissions reductions (Productivity Commission “Low-emissions economy” August 2018 at p 128). In terms of adaptation, New Zealand

does not currently have a coordinated and joined-up approach. The task of planning for the effects of climate change is left to be considered by local authorities in their planning role. New Zealand needs a national framework to guide our response to climate change. To that end, the Minister for Climate Change, James Shaw, has introduced the Climate Change Response (Zero Carbon) Amendment Bill into Parliament. It passed its first reading on 21 May 2019 with cross-party support and only one vote against, which is a remarkable achievement. The Environment select committee is currently considering submissions. This article describes how the bill works and why it is a major step forward on climate change. In summary, the bill puts in place a net zero emissions target for 2050, and requires budgets and plans to be produced as stepping stones towards meeting that target. The bill also creates an independent Climate Change Commission, to give advice on adaptation and mitigation planning. But the bill could be stronger in terms of how it is allowed to have legal effect.

Climate Change Response (Zero Carbon) Amendment Bill

The bill puts in place a net zero emissions target for 2050, and requires budgets and plans to be produced as stepping stones towards meeting that target

As the bill’s title suggests, it focuses New Zealand’s mitigation response to climate change around a “net zero” emissions target. This requires that net emissions for most greenhouse gases are zero by 2050. This target is based on the science summarised in the IPCC’s 2018 report, which says that to stabilise global temperature increases within 1.5°C, global emissions of carbon dioxide need to reduce to net zero by around 2050. New Zealand should play its part towards the global effort to achieve this. The bill sets a separate 2050 target for methane produced from the agriculture and waste sectors (known as biogenic methane). The bill will require that gross emissions of biogenic methane decrease by between 24% and 47% relative to 2017 levels by 2050. Methane is a short-lived but very potent greenhouse gas. It decays 43


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after around 12 years in the atmosphere, but has a 34 times greater warming effect than carbon dioxide during that time (New Zealand Agricultural Greenhouse Gas Research Centre “How do livestock affect the carbon cycle?”, November 2017). So it makes sense to have a separate methane target. The bill requires step-wise progress towards the long-term 2050 targets. The minister must set five-year budgets in advance so that there is always one current budget and two future budgets covering approximately the next 15 years. The minister will have advice from the Climate Change Commission on what the budget should be. The Commission is an independent and expert body that will recommend what the budget should be, and how it may be realistically met using pricing and policy methods. The minister must give reasons for departures from the Commission’s recommendation. The bill does not tell us how the budgets are going to be met. It simply requires that there are plans in place for meeting them. Emissions reduction plans are to be prepared by the minister before the budget period begins. The plans must include sector-specific policies for how to reduce emissions and increase removals of carbon from the atmosphere, as well as a multi-sector strategy to meet emissions budgets. Plans must also include a strategy that accounts for the need for a just transition to a low carbon economy, so that the impacts of reducing emissions on workers, regions, iwi and Māori and wider communities are mitigated. The Commission will give advice on the direction of policy required by the plans. The Commission is an important part of the new regime to be created by the bill. It injects expertise, independence and transparency into New Zealand’s climate change response. The Commission will be an independent Crown entity consisting of up to seven members who collectively have expertise in climate change, governance, policy, the environmental, ecological, social, economic and distributional impacts of climate change, and te Tiriti o Waitangi and te ao Māori. This expertise will feed into the budgets and plans. The Commission will also monitor and report on progress towards meeting budgets and the 2050 target by producing an annual report on New Zealand’s emissions and the adequacy of the emissions reduction plans. Then, at the end of a budget period, the Commission will report on whether the budget was met. This will ensure transparency on New Zealand’s progress towards the 2050 target. If we are slipping and sliding, the public can hold their politicians accountable. Another important pillar of the bill is its provision for adaptation. There is a certain level of climate change that is already locked into the global climate system due to our emissions to date. Even with 1.5°C of warming there will be more frequent heatwaves and heavy rainfall events, more intense tropical cyclones, losses of some species, spread of diseases, and issues with water and food security (IPCC at pp 178–181). 44

The bill provides a centralised adaptation framework. The Commission will prepare a national climate change risk assessment every six years. The risk assessment will take into account the economic, social, health, environmental, ecological and cultural effects of climate change, and the distribution of those effects across society and vulnerable groups. In response to that risk assessment, the minister must prepare a national adaptation plan that sets out the Government’s objectives, strategies and policies for adapting to the effects of climate change.

The bill’s weaknesses While the bill is a good start in establishing a framework for reducing emissions and adapting to the effects of climate change, it contains a number of weaknesses. These could frustrate the progress towards the bill’s purpose of developing clear policies that contribute to the global effort to stay within 1.5°C. Many of these problems have been raised in over 400 submissions received by the Environment select committee. Here I focus on three weaknesses in the legal architecture of the bill. These aspects are also addressed in a submission lodged by Lawyers for Climate Action New Zealand, which is available on its website. The first weakness is in how the 2050 target and


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emissions budgets are able to influence decision-making under other legislation. It might be thought that the target and budgets are so “obviously important” that they become mandatory relevant considerations for many decisions (CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 (CA) at 183). But the bill stifles this sort of argument from being raised. Section 5ZK says that the 2050 target and emissions budgets are permissive considerations and that the failure to consider them does not invalidate anything done by that person or body. This will immunise decision makers from judicial review in cases where they have failed to take the target or a budget into account, regardless of the consequences of that decision for the achievability of the target and budgets. That is, despite the importance of climate change thinking permeating across Government,

the bill is very weak in this regard. This appears to be inconsistent with New Zealand’s obligation under the United Nations Framework Convention on Climate Change to “take climate change considerations into account, to the extent feasible, in its relevant social, economic and environmental policies and actions”. The second weakness is that the bill does not make any changes to other legislation (other than some minor tweaks). This creates some significant inconsistencies. Most glaring will be the tension between the bill and sections 70A and 104E of the Resource Management Act 1991 (RMA). Those provisions say that planning and consenting authorities must disregard the effects of a greenhouse gas discharge on climate change. This means that the RMA overrides the 2050 target and emissions budgets from even being permissive considerations in RMA decision-making. That could be a major obstruction to achieving the target and budgets. Thankfully, the relationship between the RMA and climate change is within the scope of the comprehensive review of the RMA recently announced by the Minister for the Environment. The third weakness is that the bill constrains the ability for the courts to order remedies in situations where the target or a budget has not been met. Proposed section 5ZJ says that no remedy or relief is available for the failure to meet the 2050 target or a budget, and the target and budgets are not enforceable in a court of law. A court may only make a declaration that the target or a budget has not been met and award costs. It appears the thinking behind this provision may be that the Government does not wish to be exposed to damages claims for failing to meet the target or budgets. While that rationale is understandable, section 5ZJ goes too far in excluding all remedies and making the target and budgets unenforceable. This will prevent the courts from applying or creating remedies in appropriate cases in a proportionate

and reasonable manner. The remedial approach should be left to develop over time, as it has for the New Zealand Bill of Rights Act 1990 and in judicial review over the last 30 years. For example, if a decision to be made by a Government department would make a budget unachievable, it should be possible to obtain an order quashing that decision. Another possible remedy that has been suggested is that if the Government has failed to meet a target or budget then it should be ordered to invest in appropriate infrastructure an amount of money equivalent to the cost of purchasing emissions credits on international markets to make up the shortfall (Jonathan Church “Enforcing the Climate Change Act” (2015) 4 UCL Journal of Law and Jurisprudence 109 at 131-132).

Conclusion The bill before Parliament is a promising start in providing a framework for New Zealand to reduce its emissions and prepare for the effects for climate change. It creates a clear structure so that budgets and plans are produced in a transparent manner with appropriate expert input. This will insulate climate change policy from political ebbs and flows. Howeve r, t h e re a re s o m e weaknesses in the architecture of the bill. The targets and budgets created under it cannot be mandatory considerations for judicial review purposes. The bill does not yet interface well with other legislation. And the availability of remedies to enforce the target and budgets is significantly constrained. The select committee should address these aspects of the bill before it is enacted. ▪ Duncan Ballinger  Duncan. ballinger@stoutstreet.co.nz is a junior barrister at Stout Street Chambers, Wellington, and a founding committee member of Lawyers for Climate Action New Zealand Inc,  www.lawyersforclimateaction. nz. 45


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New Incorporated Societies Act Progress Report 1 BY MARK VON DADELSZEN In a series of three articles, incorporated societies expert Mark von Dadelszen will look at the proposed reform of the law relating to incorporated societies. This will involve a complete overhaul of the existing century-old legislation. A brief history of the reform process An 1895 New Zealand statute was the first to provide for the incorporation of a wide range of community societies in New Zealand, and it was replaced on the consolidation of all statutes in 1908 by the present Incorporated Societies Act 1908. It has effectively remained unchanged for over a century (in 1920 it was amended to allow for branch societies, further minor amendments were made in 1923 and 1953, and on the introduction of decimal currency in 1967 a shilling fine was changed to 10 cents). In contrast, our companies’ legislation has been totally re-enacted six times since the Joint Stock Companies Act 1860 (1868, 1882, 1901, 1903, 1933 and 1993), all with regular amending Acts. The Law Commission’s 2013 Report 129, “A New Act for Incorporated Societies”, recommended a complete overhaul of the Incorporated Societies Act 1908. The 2015 Exposure Draft of the Incorporated Societies Bill largely followed the recommendations in the 2013 Law Commission Report, but progress has been stalled for the last four years. The reforms as now proposed are 46

still underpinned by the principles set out in the Law Commission’s 2013 report. First, incorporated societies are organisations run by their members, and those members have the primary responsibility for holding their societies to account, and a group without members to hold it to account should consider an alternative form of incorporation (such as a trust). Second, incorporated societies should not distribute profits or financial benefits directly to members (who join to achieve a shared purpose, and not for any personal financial profit from the activities of the society) – a key feature setting incorporated societies apart from other forms of incorporated entities. Third, incorporated societies are private bodies that should be self-governing and largely free from inappropriate State interference. Finally, the legislative regime should give incorporated societies some flexibility to adapt their operating environment to suit their purposes and their culture.

The new Incorporated Societies Act – as now proposed The Minister of Commerce and

Consumer Affairs’ June 2019 Cabinet Paper records that “incorporated societies make a significant contribution to New Zealanders’ wellbeing”, and confirms that the present legislative proposals are to completely replace the Incorporated Societies Act 1908, provide a modern and clearer statutory framework for incorporated society governance, align the definition of incorporated society officers with the definition in the Charities Act 2005 (a somewhat narrower definition than was previously proposed), require better processes for how societies deal with member grievances and complaints, and make significant changes to provisions relating to trade unions. It is also now proposed to give existing charitable societies registered under the Charitable Trusts Act 1957 the option to migrate to the new incorporated societies regime (rather than, as previously proposed, requiring them to migrate to the new Incorporated Societies Act regime), and to give existing incorporated societies the option to move to the new register (ie, under the new Act) “only if they confirm that they wish to be so moved and that they have achieved compliance with the requirements of the new


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comply with the new requirements societies will need to amend their constitutions).

Concluding observations

statute (such as amending their constitution to include dispute resolution provisions).” These aspects of the current proposals are likely to attract criticism as it can be argued that, because charitable societies enjoy some privileges, they should not be exempt from the greater rigour proposed to be required of those governing other incorporated societies. The present intention is to reduce the originally proposed four-year transition period for societies to comply with the new statute to 30 months. However, it is also proposed that existing societies will be allowed to elect whether or not to transition to the new legislative regime. Those that do not transfer to the new regime will cease to enjoy the benefits of

being incorporated entities (the Cabinet paper recognises that this proposal may “become subject to criticism”, and the author of this article fears that many societies that are poorly governed will elect not to transition, to the potential detriment of their members and third parties). This option is likely to be taken by smaller societies for which the added administrative burdens imposed by the new statute are considered to outweigh the benefits of incorporation. During the transitional period of two years and six months, every existing society will need to check that its constitution complies with the new requirements (I anticipate that few existing constitutions will comply with the new requirements, and where constitutions fail to

The substance of the reform proposals approved by Cabinet in June 2019 are unlikely to change significantly as the reforms are not considered to be politically controversial. However, a number of societies and interest groups are likely to make submissions on the bill (particularly during the committee stages of the bill’s passage through Parliament). The new requirements proposed to be placed on incorporated societies by the new Act (the trade-off in return for the benefits of incorporation) will be onerous for some and may prompt some fundamental reconsideration about existing societies: • Why do we have a society, what need is it meeting, and are we fulfilling the wants and needs of our members – fundamentally what is our “purpose or “mission”? Do we need a society (with voting members) or might some other type of organisation (perhaps a trust) meet our needs? • To lessen the new legislative burdens, might there be merit in considering combining forces with some other organisation or organisations providing similar community services (such as forming a combined sports club or cultural society)? • Do we actually need to be incorporated (the main benefit of incorporation for most societies being to protect members from most personal liability for society activities)? • If we choose to remain incorporated, how will we meet the greater reporting and accountability requirements of the new Act? Will we need to pay or increase committee honoraria or engage some external professional help? Existing societies reviewing their constitutions should seek to anticipate the changes by adopting constitutions that comply with the provisions expected to be included in the Incorporated Societies Bill. This will avoid the pressure of having to revise a society’s constitution during the transitional period after the new Incorporated Societies Act is enacted, as well as saving some effort and cost. ▪ Mark von Dadelszen  mark.vondadelszen@bvond. co.nz is a consultant with Bannister & von Dadelszen. He was a member of the Reference Group advising the Law Commission in the preparation of its report on the proposed reforms, and was engaged by the Ministry of Business, Innovation and Employment to advice on the proposed model constitution as originally recommended by the Law Commission. 47


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The story behind the first Tokelau High Court judgment BY RICHARD FLETCHER

Just before Prime Minister Jacinda Ardern was visiting Tokelau – the first New Zealand Prime Minister to do so for 14 years – judgment from the first full hearing of the High Court of Tokelau was issued, but in Wellington (Suveinakama v Council for the Ongoing Government of Tokelau [2018] NZHC 1787). Accompanying Ms Ardern was the Tokelau Administrator, her father Ross Ardern. Also with her was Kris Faafoi, a Cabinet Minister of Tokelauan descent and the MP for Mana – an electorate based around Porirua, a city that reputedly has more Tokelauans than Tokelau. The High Court of Tokelau, you may ask. Why Wellington? The Prime Minister’s father? Such are some of the, at times, quirky, sometimes bizarre, issues around New Zealand’s administration of its most remote outpost. First things first: the “High Court of Tokelau” is the High Court of New Zealand sitting as the High Court of Tokelau. See section 3 of the Tokelau Amendment Act 1986, and Leilua-Lei-Sam v Council for the Ongoing Government of Tokelau [2012] NZHC 2775. Confused? More is to come.

What is the law of Tokelau? To employment lawyers, the case might have seemed like a pretty bog standard unjustified dismissal with the odd twist – if you applied New 48

Zealand law. But the Employment Relations Act 2000 does not apply to Tokelau, even though Tokelau is part of New Zealand. Nor does any other New Zealand statute unless that statute specifies that it applies to Tokelau (section 6 Tokelau Act 1948). So, what is the law of Tokelau? The common law of England – but what common law? Counsel referred to the common law at 1996 or the time the case was heard in February 2019. The Chief Justice, in an interlocutory decision, referred to the common law as received in New Zealand in 1840. Halsbury concurs with the Chief Justice’s view – to an extent. Halsbury’s Laws of England (Hailsham Edn) [990], n 4 refers to the “law of England at 1840 save insofar as inconsistent with the Tokelau Islands Act 1948 or inapplicable to the circumstances of the islands ….” and later laws in force in the Gilbert and Ellice Islands Colony at 1 January 1949. What common law applied was one issue in what, essentially, was a common law wrongful dismissal case The Chief Justice became involved when some thought the hearing should be in Tokelau rather than Wellington (Suveinakama v Council for the Ongoing Government of Tokelau [2018] NZHC 1670). The court was concerned, among other things, about logistics for the High Court to get to and sit in Tokelau. That concern reflects that the only way to Tokelau is by boat, taking some 36 hours from Apia, Samoa.

Small and isolated The hearing Judge, Churchman J, explained some of the background. Tokelau, he said, was one of the smallest and most isolated countries on earth consisting of three atolls with a total land area of about 11.7 km. Some 42 Tokelauan officials operate from Apia in Samoa, which is 500 km from the nearest of the three atolls. Total Tokelau population is just under 1500 people. Tokelau is run in a fairly patchwork way. It has a government comprising various institutions, but the Administrator can overrule government decisions. Also, New Zealand’s Minister of Foreign Affairs and MFAT

play quite a role in how Tokelau runs, including having considerable control over purse strings. These issues came into play when two officials, the plaintiffs before Churchman J, were involved in purchasing two helicopters in late 2016, part of a proposal to provide an air service. Substantial revenues from its fisheries and access to a development fund meant Tokelau could fund projects itself and was no longer entirely dependent on New Zealand aid.

The outcome Questions arose about whether spending on the helicopters was authorised. Churchman J ruled the two officials were lawfully dismissed but changing their suspension from one “on pay” to one “without pay” was unlawful. The case was essentially about wrongful dismissal. However, it also highlighted difficulties involved in administering a small group of islands. With some administration in Apia and “government” in Tokelau, potential for misunderstandings arise. The role the Administrator, and New Zealand government officials and advisers have played, sometimes remotely


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Law Commission recommends a new Act for dividing property when people separate BY NICHOLA LAMBIE AND JOHN-LUKE DAY from Wellington, may not always have helped. Reportedly, Mr Ardern, in his time as Administrator, has worked on repairing the sometimes fraught relationship between Tokelau and New Zealand. He has visited the islands several times, once with Mr Faafoi. The first judgment from the High Court of Tokelau does not specifically address how Tokelau legal processes can deal with other “commercial/contract” matters. There are “contract rules”, some of which the court considered. Dealings with outsiders, including contractors putting in alternative energy generation sources and other infrastructure, raise the spectre of further litigation affected by the unique common law position in Tokelau and the difficulties in administering islands – and during her recent visit, the Prime Minister said she would support an airstrip for Tokelau. ▪ Wellington practitioner, Richard Fletcher  richard.fletcher@ woodsfletcher.co.nz, filed the first proceedings in the High Court of Tokelau. He has maintained an interest in Tokelau administration since then.

The Law Commission has concluded its review of the Property (Relationships) Act 1976 (PRA) by recommending an overhaul of the way couples should divide property when they separate. The Commission proposes Parliament repeal the PRA and replace it with a new Act. Although the new Act would contain some familiar elements, such as the equal sharing of relationship property, the Commission’s 140 recommendations would mean key changes in other areas.

The Law Commission’s review The Law Commission reviewed the PRA to ensure it is operating appropriately and effectively. In 2017, it published an Issues Paper and sought submissions. At the same time, the Commission published a Study Paper examining the changes in New Zealand’s social context since the PRA was enacted in 1976. In 2018, the Commission published a Preferred Approach Paper, setting out its draft recommendations on key issues and inviting feedback. The Law Commission received

over 400 submissions from members of the public, organisations, community groups, academics, lawyers, Judges and other experts. It also relied on a survey of public attitudes and values on relationship property division conducted by the University of Otago with support from the Michael and Suzanne Borrin Foundation. In June, the Law Commission submitted its report, Review of the Property (Relationships) Act 1976 – Te Arotake i te Property (Relationships) Act 1976, to the Minister responsible for the Law Commission, Hon Andrew Little. The report is available on the Commission’s website, at https://lawcom.govt.nz/our-projects/ review-property-relationshipsact-1976. Some of the key recommendations in the report are summarised below.

Relationship property and the family home A strong theme in the review was the unfairness many New Zealanders felt in having to divide property they acquired before a relationship, especially the family home. Currently, the family home is 49


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always classified as relationship property and divided between the partners even if it was owned by one partner before the relationship. This rule was put in place in the 1970s, when the paradigm relationship was a marriage, entered into early in life, in which the spouses accumulated property and raised a family over time. The family home was therefore a product of the family joint venture, to which each partner was deemed to have contributed in equal, albeit different ways. However, increasing rates of separation and repartnering mean that more people are entering relationships later in life, often having already accumulated key assets such as their home. In these situations, the family home cannot be said to be a product of the family joint venture, and equal sharing can produce an unjust result. To address this issue, the Law Commission recommends revising the definitions of relationship property and separate property so that property is only treated as relationship property if it was: a. acquired by either partner for the partners’ common use or benefit; or b. acquired or produced by either partner during the relationship (excluding third party gifts and inheritances). The family home should no longer be treated as relationship property just because it was used by the partners during the relationship. The Commission instead recommends that when the family home was acquired by a partner before the relationship was contemplated, or was received as a third party gift or inheritance, it should be classified as the owning partner’s separate property. Only the increase in the property’s value while being used as the family home should be relationship property.

Simplifying the eligibility criteria The Law Commission is satisfied the law should continue to apply in the same way to marriages, civil unions and de facto relationships that last for three years or more. This will ensure equal treatment of relationships that are substantively the same and is consistent with social trends such as the increasing prevalence of de facto relationships. The Commission acknowledged, however, that some submitters were concerned that the definition of de facto relationship does not provide adequate guidance or certainty on when a relationship starts. To address this concern, the Commission recommends a new statutory presumption that two people are in a qualifying de facto relationship if they have maintained a common household for a period of at least three years. The presumption would be rebuttable by evidence that the partners did not live together as a couple, with reference to the existing section 2D(2) list of factors. The Commission also recommends simplifying the eligibility criteria by removing the special rules for shortterm relationships. Marriages and civil unions should always be subject to the ordinary rules of division. If a couple are in a de facto relationship but they have not shared a common household for three years, they should only be subject to the new Act if they meet additional 50

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requirements, based on the existing section 14A requirements. That is, there must be a child of the relationship or one partner must have made substantial contributions to the relationship, and in either case a court should only be able to make an order for division if it considers it just. If these requirements are satisfied, the relationship should be subject to the ordinary rules of division.

Rethinking how economic advantages and disadvantages are shared The Law Commission has concluded that section 15 has been unsuccessful in effectively addressing economic advantages and disadvantages arising from the relationship or its end. Section 15 gives the court the power to compensate one partner from the relationship property pool when there is a significant disparity in the partners’ income and living standards because of the way they divided their functions during the relationship. The remedy is mainly intended to address situations where one partner worked less during the relationship, usually to care for the partners’ children and maintain the household. The other partner is then freed up to pursue a career. At the end of the relationship, equal division of relationship property may not recognise the reduced income-earning prospects of the partner who has given up workforce participation, nor would it recognise the economic benefits the other partner will continue to enjoy from their established career. The problems with section 15 include the time and cost of making a successful claim and the inconsistent approaches adopted in the courts. The Supreme Court’s recent decision in Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507 has not improved the accessibility of the remedy. All five Judges issued separate judgments providing different views on many matters, including the level of compensation to be awarded under section 15. The Law Commission recommends the repeal of section 15. In

its place the Commission proposes the introduction of Family Income Sharing Arrangements (FISAs) as a simpler and more accessible remedy. Under a FISA, the partners would be required to share income for a limited period after separation. A partner would be entitled to a FISA when they have suffered economic disadvantages from the relationship when: a. the partners have a child together; b. the relationship was 10 years or longer; or c. during the relationship: (i) Partner A stopped, reduced or did not ever undertake paid work, took a lesser paying job or declined a promotion or other career advancement opportunity in order to make contributions to the relationship; or (ii) Partner B was enabled to undertake training, education and/or other career sustaining or advancing opportunities due to the contributions of Partner A to the relationship. If eligible, the amount payable under a FISA should be determined by a statutory formula that shares the partners’ combined income for a period of time that is approximately half the length of the relationship up to a maximum of five years. The family income should be calculated based on what the partners earned in the period before separation. Partners should be able to apply to the court to adjust the formula when the amount payable would not accurately reflect the economic advantages and disadvantages each partner takes from the relationship. If FISAs are implemented, the Commission also recommends the repeal of the maintenance regime under the Family Proceedings Act 1980. FISAs would be a more effective form of income sharing and the justification for providing income to a former partner through maintenance in situations when the partner is not otherwise entitled to a FISA is, the Commission considers, questionable.


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Access to property held on trust Many families in New Zealand use trusts as a means of holding key items of property. The PRA only applies to property of which the partners are the beneficial owners. Consequently, when placed on trust, there is usually no requirement that the property be divided at the end of the relationship. The Law Commission has concluded the use of trusts in this context often causes problems. After separation, a partner may be unfairly deprived of access to property that would otherwise be relationship property. In addition, several remedies against trusts have developed outside the PRA, such as claiming a constructive trust over an express trust and the court’s broad powers under the Family Proceedings Act to vary trusts that are nuptial settlements. The Law Commission recommends the new Act should provide the Family Court with broader powers in order to provide for a just division of property when a trust is involved. A new remedy should enable the court to respond to the various ways in which a trust might hold property that is produced, preserved or enhanced by the relationship. The Commission recommends the court’s power to vary a trust under the Family Proceedings Act should be repealed. The new Act should be the principal source of law in relation to the division of property when a trust is involved, and partners should not have to look elsewhere for relief.

Improving dispute resolution A key issue that featured strongly in the Commission’s review is that the PRA does not facilitate the inexpensive,

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simple and speedy resolution of relationship property matters. Lengthy delays and unaffordable costs exacerbate what is already a time of anxiety, uncertainty and conflict for many. The Law Commission has made a range of recommendations designed to promote the just and efficient resolution of disputes including: • developing “pre-action procedures” to encourage the resolution of issues out of court; • improving Family Court processes through the creation of new procedural rules and the establishment of a Family Court Rules Committee for this purpose; and • imposing a continuing duty to give timely, full and frank disclosure of all relevant information accompanied by stricter consequences for non-disclosure.

relationships ending on separation. The context for dividing property on the death of a partner is different. It involves tensions between the rights of the surviving partner and other parties that might stand to benefit from the deceased’s estate, such as children from a prior relationship. The Commission has recommended these competing interests should be considered and resolved as matters of policy within a broader review of succession law. The Minister responsible for the Law Commission, Hon Andrew Little, has requested that the Law Commission commence a review of succession law in the 2019/20 year. The terms of reference of this review are yet to be determined.

What next?

Division of property on death

The Government will now give further consideration to the Commission’s 140 recommendations for reform and the wider impact of its proposals. ▪

Part 8 of the PRA sets out how property may be divided when one of the partners in a relationship dies. The Law Commission recommends that the new Act only apply to

Nichola Lambie is a Principal Legal and Policy Adviser and John-Luke Day is a Senior Legal and Policy Adviser at the Law Commission. 51


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ALTERNATIVE DISPUTE RESOLUTION

Experienced arbitration lawyers aiming to make New Zealand a Pacific arbitration hub BY NICK BUTCHER

Some experienced New Zealand lawyers who’ve worked overseas in arbitration have returned home for the Kiwi lifestyle and to help create more opportunities for international work now available here. Coming back to the green pastures and, perhaps, the simpler life of New Zealand is not an easy decision to make – especially if you’ve had opportunities to work on major arbitrations in places like Paris and London. So, what next in a career that has seen many globetrotting and practising international law?

Keen to grow New Zealand’s reputation Lauren Lindsay is a barrister at Auckland’s Bankside Chambers with extensive experience as an international arbitration lawyer. She is able to practise law in both New Zealand and England and Wales. Ms Lindsay finds it’s not easy to maintain an international arbitration practice in New Zealand. “It’s particularly challenging as an advocate. There are obviously some well-known arbitration lawyers in New Zealand, but they’re probably not practising as much international arbitration as they’d like to. I think there is a lot of potential here but there are still relatively few international arbitration disputes being decided in New Zealand, or involving New Zealand-based counsel,” she says. New Zealand has been listed as one of 32 seats around the world considered safe and reliable for arbitration by independent arbitration institute Delos Dispute Resolution. Ms Lindsay continues her work as an independent consultant for Allen & Overy LLP’s international arbitration team in London. “I also work with the A&O Hong Kong office. My practice is probably 50% international arbitration and 50% commercial litigation. Because of the time differences, we are really well placed to do work in Asia. 52

So, whether it’s China, Singapore or Hong Kong, I’m much more convenient here than somebody in London.” She says New Zealand is in a great position to grow towards being an arbitration centre for both Pacific neighbours and Asia. “Especially the Pacific where there are a lot of disputes. Vanuatu, where I grew up, has its fair share. There are financial disputes, maritime and shipping disputes,” she says. Earlier in her career, Ms Lindsay represented Poland in her first big international arbitration hearing. “Acting for a state is quite a unique experience. Servier – a French pharmaceutical company – sued Poland for preventing some of Servier’s drugs from being sold in the Polish market. It was one of the first investment treaty cases concerning intellectual property rights and the subject matter was very scientific. The hearing was held in the Peace Palace at The Hague, so being a public international lawyer at heart that was very special.” Perhaps New Zealanders practising law abroad are not as aware as they should be of how credible their skills and expertise are, or maybe they’re a little too modest. Lauren Lindsay says perhaps Kiwis might not always appreciate the closeness of their connection to Asia.

“I’m very much from the Pacific: born in New Zealand and growing up in Vanuatu. The Pacific is such a big part of us. Even though Asia is halfway between New Zealand and Europe, when you are in New Zealand, Asia somehow feels closer than it did when I was in London. We’re much more connected here in New Zealand to both the Pacific and Asia,” she says.

The pull of family Robert Kirkness is a barrister at Thorndon Chambers in Wellington. He’s an experienced arbitration lawyer and a Registered Foreign Lawyer at the Singapore International Commercial Court. He spent considerable time overseas but New Zealand is where he wants to be. “Like a lot of New Zealanders overseas, as soon as my wife and I had our first child, we were faced with a choice about whether we would stay or come home. The pull of family and the New Zealand lifestyle drew us back. The interesting question for me in terms of my practice is whether I can build a New Zealand practice but also maintain the international practice that I had before returning,” he says. Mr Kirkness spent four years in Paris and four years in Singapore practising in the international arbitration and public international


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▴ Lauren Lindsay

▴ Robert Kirkness

law teams at Freshfields Bruckhaus Deringer. “Not many of the cases or clients were ever from the city that I happened to be living in so there was a lot of travel involved. As long as you are happy to jump on a plane and be where you need to be, there is no absolute need to be based in one particular place in order to do international arbitration,” he says. So, can he maintain a similar set up being based in New Zealand? After all, it’s about a 13-hour flight to Singapore. “You might not be that fresh when you get there but I think that’s part of the cost of the New Zealand lifestyle. You accept that there will be a lot of travel if you are going to make an international arbitration practice work.”

The lawyers on the other side were from Houston, Texas. We mused a bit once the case had wrapped up about what an interesting field – international arbitration – we had got ourselves into,” he says.

Practising before a mentor Robert Kirkness studied international arbitration under Sir David Williams QC, who is considered one of the world’s leading arbitrators. “Shortly before I came back to New Zealand, I argued an investment treaty case before Sir David. The claim was brought by someone as a national of a European State. The hearing was in Paris. The seat of arbitration was London. Our legal team were all based in Singapore.

The Peace Pipeline case One of the more interesting cases Mr Kirkness worked on were the so-called “Peace Pipeline arbitrations”: four parallel cases – two investment treaty and two commercial that various foreign investors brought against Egypt and some of its state-owned entities alleging wrongful termination of a long-term contract for the sale of Egyptian natural to a private company for on-sale to Israel. “One of my main memories from those cases was that in the international treaty cases, the termination of the underlying contract was a matter of fact that informed whether the international standards had been breached. That underlying contract was governed by English law, so the lawyers from the other side instructed an expert witness on the meaning of that contract as a matter of English law. They retained Lord Hoffmann, to do that. So, we, as a team, had the privilege of cross-examining Lord Hoffmann on the interpretation of contracts under English law, not once, but twice,” he says.

▴ Nicola Swan

NZ can become big player in the Pacific Royden Hindle is an arbitrator, mediator and barrister, and the President of the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ). He believes that while Singapore and Hong Kong are world champions when it comes to the global arbitration market, their focus there means that there’s plenty of opportunities at a regional level for other nations. “It’s obvious that we [New Zealand] are geographically isolated. I suspect we might struggle to develop enough critical mass to become recognised as a truly global arbitration centre, certainly in the short-term. The picture is also complicated because Singapore and Hong Kong look to have that (global] market reasonably well secured. But in the Asia-Pacific region, it is a very different picture. I have no doubt that we can, and will, develop a far greater presence in cross-border arbitration,” he says. Mr Hindle, who is based at Bankside Chambers, says New Zealand arbitrators have an excellent overseas reputation. “We already have a presence on the world stage that is disproportionate to the size of our legal workforce. There are many very high-profile arbitrators practising 53


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abroad who call New Zealand home, as well as an increasing number such as Sir David Williams QC who live in New Zealand and yet are in huge demand overseas.”

Isolation no barrier The executive director of the New Zealand International Arbitration Centre (NZIAC), Catherine Green, doesn’t think New Zealand’s isolation works against it in pursuing a larger arbitration identity. “That tyranny of distance argument has been voiced numerous times in the past. However, there is a project called The Southern Link which places New Zealand in a very good position,” she says. The Southern Link, she says, proposes the development of trade and travel routes between China and South America, and New Zealand is right in the middle of that plan. “We can play quite a key role in the trans-Pacific region to link those countries. They can’t go from one to the other without touching down somewhere and that touchdown point could logically be us. Wherever there’s trade, there’s going to be disputes, so having effective dispute resolution processes that can underpin that is really necessary. We can definitely play a role throughout the trans-Pacific region, not just because of The Southern Link project but also on a general level too as there is plenty of other trade going on around this region.” Ms Green says the NZIAC receives regular inquiries from throughout the Pacific with the view of utilising New Zealand for dispute resolution.

Moving back home after eight years Nicola Swan is heading home to New Zealand after eight years in the UK – most of them at Debevoise & Plimpton LLP in London – in order to expand the international arbitration work coming in, particularly from 54

▴ Royden Hindle

▴ Catherine Green

Singapore and Hong Kong. “I’ve been International Counsel in the International Disputes Group, where I’ve been working on international commercial and investor state arbitration, commercial litigation, public and administrative law across various jurisdictions, and international and domestic human rights law,” she says. Ms Swan is joining Chapman Tripp’s Dispute Resolution team in Wellington to continue arbitration and litigation work, and to join and expand the firm’s international arbitration practice, which has a sought-after Global Arbitration Review top 100 ranking. “New Zealand will be my home base, with a focus on expanding the international work coming through New Zealand, particularly through Singapore and Hong Kong,” she says.

which had prevented it from pursuing its legitimate arbitration against the Government of Belize. The CCJ confirmed that it was only in exceptional circumstances that international arbitrations can be halted by national courts.” The decision was recognised as the most important published decision in 2013 by Global Arbitration Review, she says.

Reflecting on a memorable case One of the arbitration cases she is proud of was a case Debevoise & Plimpton LLP won before the Caribbean Court of Justice on an appeal from the national courts of Belize. It involved the availability of anti-arbitration injunctions – that is when national courts can stop an international arbitration from proceeding. “The CCJ granted our client’s appeal from the decision of the Court of Appeal of Belize, discharging an anti-arbitration injunction

Ranking high on transparency index New Zealand is what could be described as an emerging player in arbitration. It has the potential to be a leader. “We’re not established the same as Singapore or Hong Kong. What we’re saying is, we’re here, we’re open for business and we’re a good option as a location,” Catherine Green says. There are many reasons for this, including that New Zealand ranks so high on the Transparency International Index – at number two out of 180 countries, behind Denmark. But in the Asia-Pacific region, New Zealand is number one. “People look to New Zealand because it ranks so highly which is so important for dispute resolution. We also have a very safe legal system and supportive environment. You need this to support arbitration,” she says. While New Zealand does possess arbitrators with powerful


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international reputations, Ms Green says there are also many lawyers who are advocates in arbitration. “We really can provide the full package here. It’s not just a solo arbitrator with international experience. We’ve got very sophisticated lawyers who have been working in this area for a long time who are on the ground. And, while we can administer an arbitration from New Zealand, it doesn’t necessarily mean that we must have a New Zealander as the arbitrator.” Recently, the NZIAC signed a memorandum of understanding with Argentina’s Chamber of Commerce. That organisation was specifically looking for a relationship that would support them in providing private dispute resolution through arbitration or mediation services. “That’s indicative of what’s happening at the moment. People are looking for alternatives. They came to us. It was not an opportunity that we sought. The New Zealand profile is on the rise which is really encouraging,” she says.

The potential economic benefits More arbitrations are likely to provide economic spinoffs for New Zealand. After all, people need accommodation and it is likely they might want to see some of this country while they’re here on business. In 2012, “Arbitration in Toronto: An Economic Study”, by Charles River Associates was published. It analysed the impact of 425 arbitrations carried out in Canada that year. It found domestic arbitrations brought CA$370,000 into the Canadian economy and international arbitrations CA$1.7 million. Respectively, that is NZ$430,000 and NZ$1.9 million – providing some insight into what could be achieved in New Zealand. ▪

Arbitrations and Proportionality BY ROBERT FISHER QC

A feature of arbitration is the opportunity to tailor the procedure to the particular dispute. In choosing the procedure, fairness and efficiency are obviously to the forefront. But equally important is proportionality. Proportionality pegs the time and cost of an arbitration at a level that will be economic for the parties having regard to the magnitude of their dispute. It would not be economically rational to stage a successful arbitration at a cost which turned out to exceed the sum at issue. Clients prepared to litigate “for the principle of the thing” are to be applauded. Sadly, their enthusiasm usually wanes on seeing the bill. It follows that at the outset of an arbitration some form of triaging is required to ensure that the procedure to be followed will not be out of proportion to the value of the dispute. The chosen arbitrator will usually suggest the best procedure after considering the nature of the dispute and the amount at stake. Alternatively, the parties may submit their dispute to a dispute

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resolution institution with rules which distinguish between different kinds and levels of dispute. The New Zealand Disputes Resolution Centre is an example of such an institution (https://www.nzdrc.co.nz/). The table which follows sets out to match the choice of procedure to the value in dispute. It includes suggestions as to the level of arbitrator fees that would be perceived as economic from the parties’ viewpoint. This includes the proposal that for modest to medium level disputes the arbitrator’s fee should be fixed. The parties can then decide in advance whether the game is worth the candle. That concern recedes as the amount in dispute grows – hence the suggestion that above a certain level the fee can be based on an hourly rate. Of course, in practice fees vary greatly from one arbitrator to another. The tick-marks in the “Up to $50,000” column of the table produce an expedited approach to modest claims. Sequential filing of evidence and submissions from each side by email is followed by an emailed right of reply for the claimant, and then a

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Amount in dispute

Steps required

Up to $50,000

Follow simple rules instead of preliminary conference

Procedure is adopted at preliminary conference No orders for further disclosure

$50,000 to $250,000

$250,000 – $750,000

$750,000 + or company or trust involved

Any orders for disclosure will be made after written submissions

Any orders for disclosure will be made after one or more conferences Sequential filing of evidence and submissions by each party

Arbitrator gives award after reading the material provided by the parties

One day hearing with party time limits

Conventional hearing with evidence and submissions

Total arbitrator’s fee including award

$5,000

$10,000

$20,000

$400 – $800 per hour

Plus issues conference if sought

$2,000

$5,000

$5,000

$400 – $800 per hour

decision from the arbitrator based on the written material. The arbitrator’s fee is $5,000. In my experience expedited procedures of that kind work well in practice despite assumptions to the contrary by much of the legal world. For example, it is the process used by the Domain Name Commission (DNC) to resolve disputes over the right to use domain names (https:// www.dnc.org.nz/resource-library/ policies/65). Under the DNC rules, the dispute is referred initially to mediation and, if that fails, to “experts” for a binding determination. The complainant and respondent file their evidence and argument sequentially with a right of reply for the complainant. The body of the complaint

56

and response cannot exceed 2,000 words. Strict time limits apply. The expert’s written decision, with reasons, must be given within 10 days of receiving the material. The expert receives a fixed fee of $2,000. The process has worked well over the 13 years since it was introduced. The table above goes on to suggest more elaborate procedures where more is at stake. For example, where the claim is in the $250,000 to $750,000 category, a detailed timetable is set at a preliminary conference; defended disclosure applications are determined in further conferences; and there is a hearing. Even there, however, the hearing is limited to one day and time limits govern each party’s

presentation. Above $750,000 those constraints no longer apply. In every case the procedures suggested in the table amount to no more than the default which applies unless the parties or arbitrator seek otherwise. Further, the table does not purport to set out the detailed process for larger or more complex arbitrations. These will be the subject of a further article. ▪ Robert Fisher QC  www. robertfisher.co.nz is a member of Bankside Chambers, a former High Court Judge and the author of Fisher on Matrimonial Property. Since leaving the bench he has been in full-time practice as an arbitrator and mediator.


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ALTERNATIVE DISPUTE RESOLUTION

Appointing your arbitrator BY JOHN WALTON

Dinosaurs were not quite roaming the earth when I first turned my mind to arbitration as a young lawyer (though my daughter would demur). It’s not that long ago that arbitration was primarily the preserve of lease and construction disputes. Since that time, we have had the almost universal adoption of the UNCITRAL Model Law and what Schultz and Kovacs have described as “The Rise of a Third Generation of Arbitrators” (Arbitration International (2012) Volume 2B, Issue 2 at 161). The first wave was the “grand old men” who had risen to the top of their professions, typically legal, and who had no particular expertise in arbitration. Their credibility could be said to have rested in their grey hair. The second wave was what Dezalay and Garth referred to in 1996 as the “technocrats” (Yves Dezalay and Brant Garth, Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order (The University of Chicago Press 1996)); technical experts who gained their credentials through international arbitration. Schultz and Kovacs’ third generation are arbitration specialists, with managerial skills at the forefront. While the delegation of legal analysis, running hearings and writing awards proposed by Schultz and Kovacs would, on any measure, be a step too far, there is something to be said for the recognition of arbitrators as specialists in their own right. For any arbitration, the selection of the arbitrator is probably the most important decision of the

❝ It is generally not a good idea to annoy the mind you’re trying to persuade.❞ — Anon

entire process; yet regrettably it is generally not done as well in New Zealand as it might be. Approaches range from using the last arbitrator to be charmed by counsel’s powers of persuasion or to favour a client’s position; appointing the most recent retirement from the High Court bench, based on how they were perceived from prior cases; to simply surrendering the entire process to an appointing body. Sadly, few counsel fully explore the options available to them; particularly in what arbitration might offer. This is something that could be done better.

Drafting the agreement The first opportunity to insert some rigour into the selection process is in drafting the agreement to arbitrate. The minimal, and to be honest quite satisfactory, approach is for the agreement to simply provide for arbitration under the Arbitration Act 1996. The difficulty with this approach is that, if the parties fail to agree, then the appointment is made for them by AMINZ under article 11 of Schedule 1 to the Act. No timeframe for agreement is provided in article 11, and the appointment is made on the application of either party. AMINZ then makes the appointment in accordance with its Appointments Policy from its panel of arbitrators, in consultation with its Appointments Panel. While the AMINZ appointments process is as transparent as it can be, providing for consultation with experienced practitioners engaged in arbitration, more could be done by counsel. More complex arrangements for appointment are

used – for example, the UNCITRAL process under which the parties propose not more than three candidates, the appointing body then collates a list of five, from which the parties may object to two and must rank the remaining three in order of preference (see article 30.3 of the AMINZ Arbitration Rules). This may be more than a little cumbersome for all but the most complex and high value claims, but it is thorough. Time will tell if this process gains favour. At times, it would appear that contract drafters have relied on supposition, or faulty memories, to provide for appointment by inappropriate organisations or some that simply don’t exist. In the recent case of Tumatatoro Ltd v HJS AG Ltd [2019] NZHC 1047, the parties provided for an independent registered farm management consultant, appointed by Federated Farmers, to resolve a rural leasehold dispute. Regrettably, Federated Farmers do not, and would not, make such an appointment. In the High Court, Justice Duffy held that the agreed procedure had been defeated; in an exchange of emails the parties had agreed to arbitration; and, having failed to agree on an arbitrator, the appointment made by AMINZ as the default appointing body under the Act, was valid. That the arbitrator appointed was not a registered farm management consultant, as provided in the original agreement, was not an issue as this requirement was not carried through to the imputed agreement to arbitrate. While the article 11 procedure worked well in that case, with AMINZ making the 57


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appointment, it is perhaps less than what the parties had intended. Coincidentally, the New Zealand Law Society advised in July that the Institute of Architects (NZIA) will not appoint experts in dispute resolution clauses either: “The NZIA says this has been done without its knowledge or consent and places it in an untenable position. It notes that the NZIA, its President, and its architect members generally, are not authorised nor have the expertise (and insurance) to provide these services.”

Rejection a matter of practice While lawyers will frequently exchange correspondence proposing and objecting to candidates for appointment, all too often this is taken as an opportunity to game the process; or counsel is blinded by suspicion that their opposite number is pulling a fast one. Rejecting the first name on a proposed list of candidates has become a matter of practice, on the assumption that this is the person most favoured by the proposing party. This has led to some listing their preference at number two or three on their proposed list. It is hard to see this behaviour as being in the best interests of the clients. Arbitration is not court litigation, and it provides significant procedural advantages; the ability to select your arbitrator; to select your procedure; the availability of interim measures; disposal of costly and time consuming discovery, in favour of disclosure; tailoring submissions and the use of experts to suit the dispute; privacy; disposing of rights of appeal; and the ability to agree on costs, including indemnity costs, if that is what clients would prefer – most would, if asked. Properly used, there can be no doubt that arbitration can get to the determination of the substance of the dispute more quickly and more cost effectively than traditional litigation. All too often, that will depend on how the arbitrator 58

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proposes to use his or her powers under article 19 of Schedule 1. Familiarity with the skills and preferences of potential arbitrators is the key, and having a sensible discussion between counsel over who best to select in the expectation of reaching agreement. For many litigators, arbitration is a field visited infrequently. Perusing the AMINZ or the New Zealand Dispute Resolution Centre website, to identify potential arbitrators, can be helpful, but it is, at best, only a starting point. One solution, all too frequently overlooked, is to interview the prospective arbitrator(s) and ascertain their suitability for the dispute. Armed with a clearer picture of the available talent, counsel should then meet, face-to-face, and discuss their preferences and try to reach agreement. Exchanging emails and firing off letters is a poor excuse for a frank discussion, and is usually only useful as evidence of a failure to agree, with a resulting loss of the critical power to settle on an arbitrator which both counsel accept.

Useful guidance The London-based Chartered Institute of Arbitrators (CIArb) has published a useful practice guideline on interviewing prospective arbitrators. Interviews for Prospective Arbitrators CIArb, 2016 sets out six general principles: 1. arbitrators may agree to be interviewed by a party prior to appointment; 2. when approached, the candidate arbitrator should enquire whether pre-appointment communication is prohibited either under the arbitration agreement or the applicable law; 3. the prospective arbitrator should be provided with a copy of the arbitration agreement and details of the parties and the matter in dispute to ascertain whether or not they have a conflict of interest and the qualifications and expertise to determine the dispute; 4. the prospective arbitrator should then agree the basis upon with the interview is to be conducted,

including the questions to be asked and issues canvassed; 5. no remuneration or hospitality should be offered for agreeing to be interviewed; and 6. contemporaneous notes should be taken of the interview (which will be discoverable, if the appointment becomes an issue). It goes without saying that the substance of the dispute should not be canvassed during the interview, including specific facts, positions of the parties and the merits of the case. Conversely, the arbitrator’s background, published speeches and articles, appearances as expert witness and positions taken, prior appearances as arbitrator (within the constraints of confidentiality) and anything else which may go to the arbitrator’s competence, availability or independence are all fair game for discussion. While this may seem to be overkill, selection of your arbitrator is one of the most important decisions you will make in the arbitration process, and it should not be taken lightly; nor should it lightly be surrendered to an appointing body, unless it genuinely cannot be agreed. That is not to say that appointing bodies do not provide a valuable service; clearly they do. However, most counsel experienced in arbitration are capable of recognising an appropriate arbitrator, and recommending them to their clients. While New Zealand may not be the epicentre of international arbitration, like Hong Kong, Singapore or London, that is the context of Schultz and Kovacs’ Third Generation, we have a growing cadre of expert arbitrators and legal practitioners with the experience and skills to maximise the benefits of arbitration. The starting point is to recognise that arbitrators are not judges, and the process – while legal – is not litigation. ▪ John Walton  john@johnwalton. co.nz is an arbitrator, construction adjudicator and commercial mediator practising out of Bankside Chambers in Auckland.


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ALTERNATIVE DISPUTE RESOLUTION

Cognitive dissonance BY PAUL SILLS

Psychology plays a fundamental part in the mediation process. There are five key psychological traits that emerge most often in mediation: confirmation bias, cognitive dissonance, reactive devaluation, reciprocation bias and Hanlon’s razor. This article examines cognitive dissonance and follows on from my previous discussion of cognitive bias. Cognitive dissonance refers to the mental discomfort felt when our mind entertains two contradictory concepts at the same time. This theory encompasses the idea that we are constantly striving for balance between our beliefs and behaviours. If our beliefs and behaviours are not harmonised we feel uncomfortable, finding ourselves in a state of cognitive dissonance. Despite the paradox that is life itself, we struggle to hold as true competing interests, theories or stories in our mind at any one time. Being able to do so is a fundamental trait of a great negotiator/mediator. In addition, it is often essential for the parties in dispute if they are to engage in meaningful dialogue. Most of us can look at life through only one lens – that of our perspective. The perspective of others does not normally feature in our autobiographical way of looking at conflict and the causes of that conflict. Yet the ability to see an issue through the lens of another is a fundamental part of good conflict resolution and is a cornerstone of empathy. As explained by Carol Tavris, co-author of Mistakes Were Made (But Not by Me): “Cognitive dissonance is what we feel when the self-concept – I’m smart, I’m kind, I’m convinced this belief is true – is threatened by evidence that we did something that wasn’t smart, that we did something that hurt another person, that the belief isn’t true.” Essentially, cognitive dissonance challenges our sense of self.

Irrational behaviour Cognitive dissonance features when we engage in irrational behaviour. For example, smokers are aware of the harm that smoking causes but nevertheless continue to smoke. When knowledge of a behaviour differs from the behaviour actually demonstrated, cognitive dissonance occurs. This may be experienced more intensely when the belief in question relates to our personal selves, or significant value is placed on the particular belief/

Cognitive dissonance refers to the mental discomfort felt when our mind entertains two contradictory concepts at the same time. This theory encompasses the idea that we are constantly striving for balance between our beliefs and behaviours

activity. The unsettled feeling arising from cognitive dissonance prompts and motivates us to get rid of the inconsistency in order to feel better. A person experiencing dissonance has three options to achieve this – change their behaviour, change the belief, or rationalise the behaviour. So, going back to our example, a smoker can stop smoking (behaviour), declare that they enjoy smoking more than the risk of harm (belief), or find research disproving the evidence that smoking kills (rationalise). Cognitive dissonance theory was developed by social psychologist Leon Festinger in 1956 as a result of a study of a doomsday cult published in his book When Prophecy Fails. The cult members believed that the world would be destroyed by a flood and they would be rescued by a flying saucer. Festinger was particularly interested in what would happen to the cult when no apocalypse occurred. While some members left the community, many began to reinterpret the evidence to suggest the flood had not occurred because of their dedication. Festinger observed that the group: “doubled down on its belief and said God had simply decided to spare the members, coping with their own cognitive dissonance by clinging to a justification”. Psychologist Saul McLeod has also explained that “the positive spin we place on outcomes of efforts we have invested significant amounts of time in can also be explained by cognitive dissonance”. That is, if we have invested time into a task that turns out badly, instead of writing it off as a waste of time, we often convince ourselves otherwise. We 59


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decide that, in fact, we did not spend too much time on the task, it was a positive learning experience, and/or it was enjoyable regardless of the outcome. This reaction allows us to avoid feelings of regret and self-pity and maintains the desired balance between belief and action. Unsurprisingly, cognitive dissonance plays a substantial part in the conflict resolution process. To address feelings of dissonance in a conflict situation, people can either: completely disregard ideas that clash with their own (often becoming angry and hostile), ignore what they are confronted with, or use new pieces of information as opportunities to make changes in their lives. The latter strategy is the most beneficial way of dealing with cognitive dissonance as it allows us to re-evaluate who we are, if required. Unfortunately, it is the least used strategy in conflict – we do not take the opportunity to use conflict as a learning tool and motivation for change. However, it is important that we remain open to ideas that challenge our pre-existing beliefs.

Achieving cognitive harmony The next step is to display the confidence and willingness to change our behaviours and or/beliefs in order to achieve cognitive harmony. This is easier said than done – people often attack the messenger instead of evaluating the new information and the message itself. However, the ability to recognise new information and adjust behaviour accordingly is a challenging, but beneficial, skill for resolving conflict. Apologies are also a significant yet difficult part of the conflict resolution process. If required to apologise we may experience feelings of dissonance that we attempt to avoid by refusing to back down. This creates a roadblock to settling disputes. 60

A study published in the European Journal of Social Psychology discovered that those who refused to apologise after making a mistake had increased self-esteem and feelings of power compared to those who did apologise. Tyler Okimoto, an author of the study, noted that: “In a way, apologies give power to their recipients”. In saying this, the study concluded that those who did not apologise suffered more negative long-term consequences – relationships were damaged where there were no apologies, and the conflicts intensified. While avoiding feelings of cognitive dissonance may appeal in the short-term, conflicts are more likely to be resolved efficiently and adequately if apologies are made. It is very important to recognise cognitive dissonance and its effect on our thought processes.

Self-awareness is key to minimising the negative feelings experienced through cognitive dissonance. Our minds go to great lengths to preserve our sense of identity, so knowing what dissonance feels like helps us to become more mindful and efficient thinkers. When we manifest feelings such as embarrassment, guilt, stress or confusion, it is useful to recognise that they are not signs that we are wrong. Instead, we can use them as indicators to explore the situation from a more impartial perspective, objectively questioning whether or not we are wrong. ▪ Paul Sills  paul.sills@paulsills. co.nz is an Auckland barrister and mediator, specialising in commercial and civil litigation. He is an AMINZ Mediation Panel member.


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PR A C T I C E

PRACTICE

Diversity in the New Zealand legal profession: At a glance BY GEOFF ADLAM The demographic makeup of New Zealand’s legal profession continues to change. While the proportion of women and men practising law now reflects that of our society, the ethnic makeup of the profession still lags behind that of the national population. The information provided here is intended to give an overview of the New Zealand legal profession in mid-2019. Information has been analysed to give a quick picture of New Zealand-based lawyers by the time since their admission, the nature of their work and their location. Information used draws upon the gender and ethnicity details provided by lawyers to the Law Society. The Law Society has introduced a “Gender Diverse” option for lawyers who do not want to be identifed as either female or male. Because of the very low number of lawyers selecting it, this option has not been included in the analysis for privacy reasons. Information on lawyers selecting two of the available ethnicities has also been included in the “Other Pacific Peoples” category because of the low numbers involved. The information used for these graphs is the number of New Zealand-based lawyers who held a practising certificate at 1 July 2019. The total number is down on the number at 1 February used in our annual Snapshot of the Profession. This is because over 6% of lawyers did not renew their practising certificates for the new practising year. This is a normal occurrence and numbers are expected to rise.

Gender Since January 2018 there have been more women practising law in New Zealand than men. The “gender gap” continues to increase and we could have a profession where 60% are women in another decade. One-quarter of women lawyers have been in practice for fewer than five years, compared with 16% of men. At the other end of the spectrum, 15% of men have been admitted for 40 years or more, but just 1% of women. Interestingly, in the period between 10 and 40 years since admission, the proportions are very close – 57% of women and 58% of men have been admitted that long. It’s at the

beginning and the end that the gender differences are most noticeable – 62.2% of lawyers who were admitted less than 10 years ago are women. And, 93% of lawyers who were admitted 40 years or more ago are men. The similarity of numbers in the middle years of practice falls away, however, when roles by gender are considered. Women make up 52% of lawyers working in law firms with more than one lawyer. However, they contribute just 34% of the directors and partners. Women far outnumber men in the in-house and community law centre sectors (separated for the purposes of this comparison), but are under-represented as Queen’s Counsel and barristers sole. Overall, there are relatively few differences in where women and men practise law. Women are slightly more likely to be based in a major population centre, although a higher proportion of men are based in Auckland. Perhaps befitting its status as a super diverse city, a very high proportion of lawyers identifying with all ethnicities except NZ European and Māori work in Auckland. The difference evens out when it comes to major (over 100,000) population centres.

NEW ZEALAND-BASED L AW Y E R S AT 1 J U LY 2019 Number of lawyers and average age

6661

6261

39 years 8 months

46 years 2 months

Women

Men

12,923 Total

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Note: A  ll percentages have been rounded to two significant figures. TIME IN PRACTICE (YEARS)

T Y P E O F WO R K

Time since admission, proportion of gender

Workplace, proportion of gender

0 to 5

5 to 10

10 to 40

Women

40 plus

All

Employed Barrister 1.1%

Unspecified - 1.0%

Queen's Counsel - 0.4%

Men

Community Law Centre - 1.0%

Sole Practice - 4.8%

16%

21%

26%

Barrister Sole - 7.9%

12%

14%

Women

16% In-house - 26%

Multi-Lawyer firm - 58%

58%

57% 57%

15%

7.8%

1.1%

Employed Barrister 0.9%

Unspecified - 0.6% Community Law Centre - 0.4%

Queen's Counsel - 1.6% Sole Practice - 9.7%

Years

Women

Men

All

0 to 5

26%

16%

21%

5 to 10

16%

12%

14%

10 to 40

57%

58%

57%

40 and over

1.1%

15%

7.8%

Barrister Sole - 12%

Men In-house - 18%

Multi-Lawyer firm - 57%

Time since admission, proportion of years

Female

0 to 5

Male

5 to 10

Employed Barrister 1.0%

10 to 40

40 plus 7.5%

Unspecified - 0.8% Community Law Centre - 0.7%

Queen's Counsel - 1.0% Sole Practice - 7.2%

92% Barrister Sole - 9.7%

All 51% 64% 36%

60%

In-house - 22%

Multi-Lawyer firm - 58%

49%

40% Work

Women

Men

All

Multi-lawyer firm

58%

57%

58%

In-house

26%

18%

22%

Barrister sole

7.9%

12%

9.7%

Years

Women

Men

Sole Practice

4.8%

9.7%

7.2%

0 to 5

64%

36%

Queen’s Counsel

0.4%

1.6%

1.0%

5 to 10

60%

40%

Employed barrister

1.1%

0.9%

1.0%

10 to 40

51%

49%

Unspecified

1.0%

0.6%

0.8%

40 and over

7.5%

92%

Community Law Centre

1.0%

0.4%

0.7%

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PR A C T I C E

Proportion engaged in each role

Female

Multi-lawyer firms, proportion engaged in each role

Male

21%

Male

Female

Queen's Counsel

Employee

77%

63%

Barrister Sole 41%

59%

Director or Partner

Employed Barrister

34%

57%

43%

66%

Total

In-house

52% 61%

39%

48%

Role

Community Law Centre 73%

27%

Sole Practice 34%

37%

Women

Men

Employee

63%

37%

Director or Partner

34%

66%

Total

52%

48%

66%

Location

Multi-lawyer firm 52%

48%

The information on location uses Statistics New Zealand’s 2018 Statistical Standard for Geographic Areas. This has four classes of urban area – Major urban areas with a population of 100,000 or more, Large urban areas with a population of 30,000 to 99,999, Medium urban areas with a population of 10,000 to 29,999 and Small urban areas with a population of 1,000 to 9,999.

Unspecified 62%

38%

Total 52%

48%

Work

Women

Men

Queen’s Counsel

21%

77%

Barrister sole

41%

59%

Employed barrister

57%

43%

In-house

61%

39%

Community Law Centre

73%

27%

Sole Practice

34%

66%

Multi-lawyer firm

52%

48%

Unspecified

62%

38%

Total

52%

48%

Auckland Medium

Female

Other Major Small

42%

40%

Large

Rural

Male

45%

Total

44%

36%

38%

10%

9.6% 5.0% 3.4% 0.2%

Multi-lawyer firms, proportion of gender

Female

All

Male

43% 35%

9.2% 5.2% 3.3% 0.1%

31%

27%

23% 15% Centre

Employee Role

Director or Partner

4.9% 3.5% 0.2% Women

Men

Total

Auckland

42%

45%

44%

Other Major

40%

36%

38%

Large

9.2%

10%

9.6%

Medium

5.2%

4.9%

5.0%

Women

Men

All

Employee

43%

27%

35%

Small

3.3%

3.5%

3.4%

Director or Partner

15%

31%

23%

Rural

0.1%

0.2%

0.2%

63


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Ethnicity The Law Society has required practising lawyers to provide information on their ethnicity since 2017, with lawyers given the option of refusing to disclose. This has resulted in comprehensive information, and over 95% of practising lawyers have contributed details of their ethnicity. It is important to note that lawyers may identify with more than one ethnicity. The available ethnicity options provided by the Law Society are also currently being reviewed. There are some noticeable variations in the gender makeup of the various ethnicities. A much higher proportion of Latin American, Cook Island Māori, Māori and Samoan lawyers are women, while men are in the majority for lawyers of African, other Pacific Peoples and Tongan ethnicity. The changing ethnic makeup of the legal profession

is perhaps best shown when it comes to time since admission. The proportion of new lawyers in the most commonly selected ethnicity, New Zealand European, is below the national total. Just under 70% of lawyers in that ethnic group were admitted over 10 years ago, a long way ahead of the proportion in all other ethnicities. There are noticeable differences when it comes to the type of legal practice lawyers are engaged in. Lawyers of ethnicities with an Asian origin are far less likely to work as barristers, unlike lawyers from Pacific ethnicities. While over half

TIME IN PRACTICE

0 to 5

Time since admission, proportion of ethnic group Ethnicity

5 to 10

Rest

African

42%

24%

34%

Chinese

Chinese

34%

18%

47%

Cook Island Māori

28%

28%

44%

Cook Island Māori

Fijian

27%

14%

58%

Fijian

Indian

26%

20%

54%

Latin American

47%

27%

27%

Māori

29%

18%

54%

Middle Eastern

60%

9.6%

31%

NZ European

19%

12%

69%

Other Asian

36%

25%

39%

Other

31%

18%

51%

Other European

29%

20%

51%

Other Pacific Peoples

23%

18%

60%

Samoan

28%

14%

58%

Other Asian

Southeast Asian

51%

19%

30%

Other

Tongan

33%

14%

53%

2%

22%

56%

All Lawyers

21%

14%

65%

Rest

African

0 to 5

Not Stated

5 to 10

of lawyers are found in multi-lawyer firms, a much higher proportion of Chinese lawyers work in such firms and a lower proportion of lawyers of Pacific ethnicities. As in the information relating to gender, the roles carried out in multi-lawyer firms show distinct differences by ethnicity. Nearly one quarter of lawyers identifying as NZ European are partners or directors. However, this is often far ahead of all other ethnicities. In the 2013 census, 68% identified as NZ European, 6% as Other European, 14.9% as Māori, 7.4% as Pacific Peoples and 11.8% as Asian.

Indian Latin American Māori Middle Eastern NZ European

Other European Other Pacific Peoples Samoan Southeast Asian Tongan Not Stated All Lawyers 0%

64

10% 20% 30% 40% 50% 60% 70% 80% 90% 100%


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PR A C T I C E

WORKPLACE

In-house Barristers*

African

Sole practice

African

63%

21%

13%

2.6%

Chinese

Chinese

69%

19%

5.4%

5.4%

Cook Island Māori

44%

28%

17%

11%

Cook Island Māori

Fijian

47%

26%

17%

7.8%

Indian

53%

25%

7.8%

13%

Indian

Latin American

47%

47%

0.0%

0.0%

Māori

56%

22%

14%

5.6%

Latin American

Middle Eastern

56%

25%

12%

3.8%

NZ European

58%

22%

12%

7.1%

Other Asian

65%

20%

6.0%

7.7%

Other

53%

22%

11%

12%

Other European

54%

27%

12%

5.9%

Middle Eastern NZ European Other Asian

Other Pacific Peoples

40%

35%

13%

13%

Other

Samoan

41%

31%

19%

6.4%

Southeast Asian

64%

27%

3.6%

2.9%

Tongan

43%

22%

22%

4.1%

Other European Other Pacific Peoples

Not Stated

55%

24%

14%

5.6%

Samoan

All Lawyers

58%

22%

12%

7.2%

Fijian

Māori

Southeast Asian

*This information groups QCs, barristers sole and employed barristers.

0%

23%

35%

39%

37%

54%

17%

All Lawyers

Not Stated

4.1%

Tongan

9.3%

23%

Southeast Asian

35%

30%

17%

All Lawyers

11%

4.1%

37%

Samoan

39%

Not Stated

28%

Tongan

13%

9.3%

Other Pacific Peoples

54%

35%

11%

Southeast Asian

19%

30%

Other European

13%

Samoan

39%

28%

15%

19%

Other Pacific Peoples

Other

35%

12%

15%

Other European

Other Asian

39%

34%

12%

Other

24%

24%

53%

NZ European

34%

Other Asian

50%

NZ European

5.8%

5.8%

17%

17%

50%

40%

39%

Middle Eastern

6.7%

Māori

Latin American

6.7%

37%

40%

16%

16%

Latin American

35%

12%

37%

12%

35%

Indian

Fijian

Fijian

39%

5.6%

5.6%

39%

Cook Island Māori

20%

Cook Island Māori

49%

18%

49%

Director or Partner

20%

45%

Chinese

Chinese

African

18%

Director or Partner

African

Employee

Ethnicity

45%

Employee

Indian

M U LT I - L AW Y E R F I R M S

10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

53%

Sole practice

Middle Eastern

Barristers

Not Stated All Lawyers

In-house

39%

Multi-lawyer firm

Tongan

Māori

Ethnicity

Multilawyer firm

65


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L O C AT I O N Auckland

Other Major

Large

Medium

Small

Rural

African

47%

34%

11%

5.3%

2.6%

0.0%

Chinese

74%

23%

1.6%

1.1%

0.2%

0.2%

Cook Island Māori

39%

44%

5.6%

5.6%

2.8%

2.8%

Fijian

68%

20%

7.8%

1.3%

3.9%

0.0%

Indian

68%

24%

3.4%

2.0%

2.7%

0.3%

Latin American

27%

47%

20%

6.7%

0.0%

0.0%

Māori

35%

38%

16%

6.0%

4.9%

0.2%

Middle Eastern

65%

35%

0.0%

0.0%

0.0%

0.0%

NZ European

40%

40%

10%

5.5%

3.6%

0.1%

Other Asian

68%

28%

1.7%

0.0%

1.7%

0.0%

Other

49%

39%

3.6%

3.6%

3.6%

0.6%

Other European

49%

35%

8.3%

3.7%

3.8%

0.3%

Other Pacific Peoples

48%

38%

10%

0.0%

5.0%

0.0%

Samoan

67%

21%

8.0%

3.7%

0.5%

0.0%

Southeast Asian

66%

29%

2.9%

1.4%

0.7%

0.0%

Tongan

86%

10%

0.0%

4.1%

0.0%

0.0%

Not Stated

48%

38%

6.5%

4.6%

3.2%

0.2%

All Lawyers

44%

38%

9.6%

5.0%

3.4%

0.2%

Ethnicity

Auckland

African

Other Major

Chinese

Large

Cook Island Māori

Medium

Fijian

GENDER AND AV E R A G E A G E BY ETHNICITY OF NEW ZEALANDB A S E D L AW Y E R S AT 1 J U LY 2 01 9

1 square = 5 people

L AT I N AMERICAN 12 Women 3 Men Average age 36 y 6 m

Small

Indian

Rural

Latin American

COOK ISLAND MĀORI 23 Women 13 Men

Māori Middle Eastern

Average age 40 y 9 m

NZ European Other Asian

AFRICAN

Other

14 Women 24 Men

Other European

Average age 41 y 0 m

Other Pacific Peoples Samoan Southeast Asian

OTHER PA C I F I C PEOPLES

Tongan

18 Women 22 Men

Not Stated All Lawyers 0%

66

10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Average age 43 y 3 m


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PR A C T I C E

1 square = 50 people

NON-NZ EUROPEAN

NZ EUROPEAN

2178 Women 1758 Men

5079 Women 4933 Men Average age 42 y 11 m

TONGAN 24 Women 25 Men Average age 40 y 2 m

MIDDLE EASTERN 29 Women 58 Men Average age 34 y 11 m

SAMOAN 119 Women 69 Men Average age 41 y 2 m

NOT S TAT E D 265 Women 320 Men

OTHER ASIAN

Average age 40 y 11 m

136 Women 98 Men Average age 38 y 0 m

FIJIAN 40 Women 37 Men Average age 39 y 3 m

SOUTHEAST ASIAN 82 Women 58 Men

OTHER EUROPEAN INDIAN 172 Women 123 Men Average age 41 y 1 m

410 Women 357 Men Average age 43 y 9 m

Average age 37 y 5 m

OTHER

CHINESE

MĀORI

85 Women 81 Men

263 Women 182 Men

486 Women 323 Men

Average age 41 y 10 m

Average age 40 y 0 m

Average age 39 y 10 m


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PRACTICE

Some initiatives to promote diversity in New Zealand’s legal profession In 1876 New Zealand’s 225 practising lawyers were all men and of European ethnicity. The next 150 years has seen a gradual movement towards a far more diverse profession. The gender power balance and ethnic make-up of the profession are still far from equal, however. Making change and providing support is the focus of several organisations in the legal community. They were asked for an update on their initiatives and challenges.

Te Hunga Rōia Māori o Aotearoa – The Māori Law Society Famously established in 1988 in John Chadwick’s Rotorua garage, the organisation now has a membership of lawyers, judges, parliamentarians, legal academics, policy analysts, researchers and Māori law students. Te Hunga Rōia Māori has just completed its annual Hui-ā-Tau, from 28 to 31 August in Wellington. The theme was “Nā ko te pō, he rā ki tua – Here we are in the night, a new day is yet to come”. This was a challenge to attendees to explore exciting possibilities in the legal landscape and to utilise their untapped potential to bring forth a brighter future. “To achieve our goals, we cannot overlook the wellbeing of Māori in the legal profession, an issue too often kept in darkness and that must be brought into the light,” Te Hunga Rōia Māori stated in its pre-conference information. “The theme also applies to those whom the legal system has let down, 68

ignored or forgotten. Too often the legal system leaves Māori in the dark, and Te Hunga Rōia Māori has a responsibility to bring Māori out into the light.” With a new website released earlier this year (maorilawsociety. co.nz), Te Hunga Rōia Māori also launched the second year of its innovative Ngā Wāhine Rōia Māori Mentoring Programme in March. This supports the mentoring and career development of Māori women lawyers across the country. Te Hunga Rōia Māori has also shown its support for recommendations from the Independent Panel’s recommendation of a joined-up family justice system, and the report of Te Uepū Hāpai i te Ora – The Safe and Effective Justice Advisory Group. The organisation is led by Female Co-President Marcia Murray and Male Co-President Glenn Tootill, along with young lawyer, student, academic, family law, legal aid and regional representatives.

Pacific Lawyers’ Association Established in 2001, the PLA has a focus on promoting fellowship and mutual support among Pacific people, identifying and responding to the legal needs of Pacific communities, and promoting and conducting research on any issues of relevance to Pacific lawyers and Pacific people. One of the big events in 2019 will be the PLA’s first-ever conference. This is being held from 21 to 23 November at AUT’s South Campus in Manukau, South Auckland. With a theme of “It’s Island Time”,

the conference has been designed to bring together those working or interested in the legal field to connect, learn and be inspired in a truly Pacific way. “Our conference is open to all and our membership is not exclusive to only Pacific lawyers,” says PLA president Tania Sharkey. “We welcome any lawyers who support our objectives to join the PLA.” Those interested in learning more about the PLA and/or the conference are encouraged to go to the PLA’s website www.pacificlawyers.org for more details. This year the association also commenced the PLA Speaker Series in Schools. PLA members have spoken to Pacific students at school assemblies, careers expos, careers pathway classes and workshop sessions in many high schools this year. “We recently teamed up with the Ministry of Education in a joint initiative to hold workshops for those Pacific students who have now expressed an interest in law following our Speaker Series in Schools,” says Ms Sharkey. “With Pacific Youth – up to 14 years old – now forming the major ethnic group with the highest proportion of children in New Zealand, we’re taking proactive steps to nurture and attract more Pacific students into the profession. This is about growing the capacity and network of Pacific lawyers who form only 2.6% of the 14,000 lawyers in New Zealand. “We must encourage our Pacific youth to get into law, work hard and seek to be visible at the top levels of


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our profession. With an increasing Pacific population, moving the legal profession to better resemble the make-up of our population is important.” A third 2019 initiative is the PLA – QC Mentoring Programme which launched on 15 March. “What started with two Queen’s Counsel offering mentorship following the PLA annual dinner last year, has expanded into 11 QCs mentoring 22 intermediate/senior Pacific lawyers,” Ms Sharkey says. “The QC mentors are focused on supporting growth and development and being a source of wisdom, teaching and support. From the PLA perspective, creating connections and building relationships is invaluable.” Ms Sharkey says the QCs have offered to mentor by way of catch-up in person, over the phone, and by email – not only to do with the legal practice of Pacific lawyers but any ethical issues faced in practice or career advice. “On behalf of the PLA, I acknowledge all our Queen’s Counsel mentors and thank them for their offer of assistance to our members.”

Issues facing the Pacific legal community When asked about the three biggest issues facing the Pacific legal community, Tania Sharkey says diversity is very topical at present, and although the profession is becoming more diverse and inclusive, there is still a long way to go. Diversity of social background, experiences, identity and culture are just some of the qualities that Pacific lawyers bring to the profession. “The PLA acknowledges those in the legal profession who have connected with our association to promote and encourage meaningful progression in this area including Kayes Fletcher Walker, the New Zealand Bar Association and Shortland Chambers,” she says. Another issue is the availability of

jobs for Pacific law graduates. “In light of the extended commitments of Pacific law students – to their immediate and wider family, their church, the Pacific community, etc – Pacific graduates do not always have the most compelling of academic transcripts. This is a barrier to Pacific graduates obtaining employment in the legal profession, particularly in the larger law firms,” Ms Sharkey says. “We encourage employers to take a different outlook and consider how excellence is defined in terms of a candidate’s suitability for a role and what other qualities/skills Pacific lawyers will bring to that legal practice.” Ms Sharkey says the third major issue can be found in the results of the 2018 Legal Workplace Environment Survey, where 35% of Pacific lawyers surveyed answered “yes” to having experienced bullying in the past six months: the top ethnic statistic in that category. “Bullying is not a problem isolated to the large law firms – the majority of our lawyers are not working in the larger law firms,” she says. “Humility is a virtue engrained

in the nature of Pacific people. Our lawyers are most likely to be daunted, intimidated and uncomfortable speaking out about bullying behaviour. There is no place for this culture in our profession and it must stop.”

NZAL Lawyers NZAL (New Zealand Asian Leaders) Lawyers was launched in Auckland on 10 June this year. The founder of NZAL, Mai Chen, says it was established in 2013 to connect, inspire and grow Asian leaders across New Zealand, and these values and vision will underpin NZAL Lawyers. She says NZAL Lawyers was founded following a conversation earlier this year with Law Society President Tiana Epati, who asked why there was no association for Asian lawyers. Asked about the organisation’s initiatives, Ms Chen says the biggest was the June launch which showed a great deal of interest in the group and also support from the profession for the group’s vision and rationale. On 2 September, NZAL Lawyers is hosting its next symposium, and 69


PR A C T I C E

CPD credits will be available for those who attend. This will feature an address by Justice Graham Lang, on “How to be effective in the High Court”, and a short address from barrister and solicitor Gurbrinder Aulakh on key differences between Indian and Chinese clients’ understanding of the New ZeaIand legal system. The event, entitled “Developing your Skills”, will also feature a panel of Asian lawyers including Ruiping Ye who lectures at Victoria University of Wellington School of Law and Zong-Pei Zhao, Special Counsel at Chen Palmer, who will be talking about the rule of law in China, and how it differs from the New Zealand rule of law. The event will provide guidance for: • Lawyers who are not Chinese, to help them effectively advise Chinese clients, and to negotiate effectively with Chinese parties on the other side of a transaction; • Chinese lawyers, to better understand the differences between the Chinese and New Zealand rule of law when advising Chinese clients about the New Zealand courts; and • Those presiding over proceedings involving Chinese parties or administering justice to Chinese parties. There will also be an interview between the first mentor and mentee brought together by NZAL Lawyers. “The last big initiative for NZAL in 2019 will be a joint event between NZAL Lawyers and the Māori Law Society in early November,” Ms Chen says. “This initiative between the two associations will allow networking between those lawyers with clients wanting to do business with each other to make connections but also for Asian lawyers to learn more about the Treaty of Waitangi and for Māori lawyers to learn more about Asian cultures.”

Challenges facing the Asian legal community Asked about the three biggest challenges for Asian lawyers, Mai Chen says one major challenge is that faced by those who are born in a very distant culture to New Zealand, and the transition to a very different rule of law culture. “This is a challenge faced particularly by 70

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those who are born in mainland China, as countries such as Hong Kong, Singapore and India are, or were, part of the Commonwealth, and have adopted a common law system that is closer to that in New Zealand,” she says. “Many Chinese lawyers in New Zealand arrive here as young adults or even as adults before qualifying to practise law, which increases the challenge of making this transition, in order to effectively advise and advocate for their clients.” Ms Chen says the second biggest challenge is a corollary to the first. “It is lawyers acting for litigants from distant Asian cultures explaining this radically different legal and business culture to their clients, and assisting them in understanding the New Zealand court system and framework for resolving disputes. “It is critically important that lawyers ensure these concepts and ideas are adequately explained, as Asian clients will often view the advice that they are being given through the lens of their experience and understandings, which can lead to the misinterpretation of legal advice.” She says the last, and perhaps biggest challenge, is the need to adequately equip our courts and interpreting services to ensure that culturally and linguistically diverse parties – including, but not limited to Asian parties – receive equal access to justice in the courts. “As New Zealand becomes increasingly superdiverse and the number of people living here who speak little to no English increases, it is of vital importance that interpreting services are of a sufficiently high quality and availability to ensure equal access to justice for all. “It is also increasingly important that courts invest in the infrastructure and support needed for culturally and linguistically diverse parties to effectively navigate the foreign and frightening court system they may find themselves forced to be involved in. Judges and lawyers will also need to grow their cultural and Asian capability so as not to misunderstand Asian parties.”

The Gender Equality Charter Launched at Parliament on 12 April, the New Zealand Law Society’s Gender Equality Charter provides a set of commitments around gender equality aimed at improving the retention and advancement of women in the legal profession. By signing up to the charter, signatories commit to lead from the top, make a plan and take action, and measure progress. The specific commitments include tackling unconscious bias, encouraging flexible working, closing the gender pay gap and promoting equitable instructions. The charter is open to the whole legal profession. Law firms, in-house legal teams, sole practitioners (including barristers sole) and barristers’ chambers can all sign up to signal their commitment to gender equality and inclusion. By August 2019, 133 legal workplaces had signed up to the charter. Further information is available from the Law Society’s website under Law Society services/ Women in the Legal Profession. ▪


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PR A C T I C E

PRACTICE

Recruiting and retaining staff Standing out to keep good employees BY TRACEY CORMACK

“Any firm that doesn’t see their staff as their number one asset will not prosper.” – Sheryll Carey, ALPMA NZ committee member. According to the 2019 ALPMA (Australasian Legal Practice Management Association) NZ Legal Industry Salary & HR Issues Survey, retention and attraction were the biggest challenges for 94% of responding legal firms. The survey provides salary data each year, as well as information on metrics such as bonuses and diversity. There is a far wider range of careers open to lawyers today than 20 years ago, technology is constantly changing and the increase in double degrees makes candidates more attractive for a wider variety of roles. One way to address these issues, according to Shane Mackay, General Manager of OCG, recruitment consultants, is to stand out as an employer. “A l t h o u g h yo u c a n n o t b e everything to all employees you need to ask, ‘How can I be different?’.” He says some employers are doing this well by picking one or two ways to stand out and be an employer of choice. For example, he points to Perpetual Guardian which has introduced a four-day working week and found that retention and engagement has shot through the roof. “They are the leaders of the pack, but what if other organisations follow their examples? In two years this might just become the norm,” he says.

“So, be authentic. Don’t continually re-create yourself and try to do everything your employees want or you will kill your business. You need balance. If you are a family law firm ask what makes that attractive and go with that.”

Money Kirsty Spears is the director of McLeod Duminy Careers and specialises in legal recruitment in New Zealand and overseas. She says the legal profession is generally very conservative and starting salaries are “surprisingly low”. Graduates are paid $40$50,000 per annum “if they are lucky”, she says. “Other professions such as accounting or engineering pay a lot more. Law firms compare themselves to other law firms, when they should be comparing themselves to other industries. If you are not paying enough, or are not flexible enough, or not offering attractive benefits then this is a risk. “I have had a lot of conversations with law firms who seem to be happy to be ‘in the market’. But as they set their own ‘market’ this means that salaries and benefits are often not very exciting. Only a handful of firms compare the salaries they offer to other professions outside the law, but there is no real shift or change in that overall.” Kirsty Spears says law firms also need to look at their salary bands as legal salaries are stagnating. Moving up a tier looks like a pay rise, but the bands are staying the same. Shane Mackay says there is

also a problem if employers only benchmark remuneration when they are recruiting from outside their organisation, but not when looking at remuneration for current employees. The gap gets quite large quite quickly for current employees (who are on individual employment agreements) who are then forced to look outside the organisation in order to obtain market remuneration. “The gulf between internal salaries and what the employee may be able to achieve if they go to market soon becomes unpalatable but often employees are unwilling to push the remuneration conversation with their employer. If the employer doesn’t proactively address it themselves the result is undesirable churn exposing the business to the direct and indirect costs of recruitment and onboarding, ie, reduced productivity (and billings), training and management time etc. The actual costs associated with undesirable churn will usually exceed any savings in remuneration made by not benchmarking your internal salaries to market.”

Benefits package Kirsty Spears says a survey conducted by her company found that the benefits that employees were being offered were very standard and in some cases not benefits at all. The most commonly cited benefits included paying for practising certificates and continuing legal education, providing a cellphone and hosting social functions such as a Christmas party. 71


PR A C T I C E

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“While a party is nice it will not make a difference to whether an employee stays at a firm or not,” she says. Employers could be innovative in the benefits they offer. For example, a lawyer who is working 12 hours a day might appreciate their employer paying for a cleaner, or My Food Bag or home internet. Other options she suggests include paying extra KiwiSaver (especially for young employees) or paying for dry-cleaning of work clothing and tailoring wellbeing packages (eg, gym membership). Such perks create goodwill and are a minimal cost to an employer compared to an acrossthe-board pay-rise. In seminars held for legal employers following the ALPMA survey, discussion also considered training lawyers to be multi-skilled. “Lawyers love to learn something new. They don’t want to come out of law school and get stuck on one track,” Ms Spears says. “This is a double-whammy opportunity and enables the law firm to ride the peaks and troughs of work a little better, while keeping lawyers motivated.” However, she says, the number one factor that candidates mention as important is extra leave. Overseas it is standard to offer five, six or seven weeks’ annual leave. Lawyers come back from working overseas and find the four-week statutory entitlement to be a bit of a shock, especially when several days of that must be taken during the Christmas shut-down.

Careful recruitment “There is a great emphasis on academics during the recruitment process. After a few years those things are not so indicative of ability and it is often not a fair comparison,” says Kirsty Spears. “Some people have had to work in paid employment while at university and may not have lived at home or may have had other responsibilities while studying. Academic achievement says little about candidates’ other skills or about them overall. While academics can’t be ignored, perhaps some context would be useful. In a tight market they might consider allowing candidates to showcase their current knowledge through additional testing.” Damian Hanna is an associate director of INSIDE Recruitment and says that for both parties there need to be more transparent and honest recruitment processes. “Ask the right questions about what is important to the organisation. Ideally, try and meet the team by going out for a social function before the hire. More emphasis needs to be put on the cultural fit within the organisation and the team, for both sides.” Mr Hanna says many young lawyers are often working their ticket in New Zealand to get a prime position overseas. He says technology has made it easier to find and recruit lawyers through websites such as LinkedIn. The bigger problem is when employees decide to leave after a short time to go to firms within New Zealand. OCG’s Shane Mackay says the legal workforce is changing and young people are more holistic and demand 72

balance early in their careers. For example, they may be interested in climate change and environmental concerns and if you want to be an employer of choice you need to take this into account. “Tell employees what you are doing to be environmentally friendly.” “At the other end we have an ageing workforce and there is still a lot of prejudice against older candidates. Many people were affected by the global financial crisis. They might have been looking forward to a comfortable retirement, and then had to rethink after the GFC. There is now a whole generation that can’t retire. While they have the same financial drivers to be employed as their younger peers and more experience, they are up against conscious or unconscious bias in the workplace. “There is often also a perception that older employees are not technologically advanced and are not driven in the same way as their younger colleagues,” he says. “However, research doesn’t support that opinion and they bring a range of other skills, interpersonal maturity and experience to the table. The desire to have interesting work and perhaps have flexibility is a driver across all age groups, it’s certainly not only an issue for older workers.” Sheryll Carey is the General Manager of Lowndes Jordan and a committee member of the New Zealand chapter of ALPMA.


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“I think more firms need to recruit at a graduate level and make a greater commitment to training staff,” she says. “That will widen the pool in years to come, and also gives firms a chance to offer recruitment after young lawyers return from overseas. Firms also need to evaluate what their culture is and make sure they walk the walk.”

Support and retention An OCG white paper “Responding to the Changing Workforce” found employers were more in favour of longer tenures than employees were. While most employers agreed that 2-3 years was the right amount of time, 22% of employees considered that 1-2 years’ tenure was acceptable. Shane Mackay says organisations want employees to stay for at least two years, but if employees think

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there is not a lot to learn after one year or if an employer has failed to mentor or develop their staff then employees will look to manage and develop their own career path. Employees want and need better managers, internal development and clear career pathways. “There was a time when jobs were for life, but that changed at least 25 years ago, when organisations became more stakeholder and revenue focused, there was a drive to efficiency, increasingly lean organisations that no longer provided internal career pathways and less time and resources dedicated to individual employee development. The emotional contract and loyalty in the employee/employer relationship diminished and employees learned that to get ahead they needed to manage their own career development. A typical career now spans a portfolio of employers with employees often leaving and returning to an employer multiple times across the course of their career. The old paradigm that once they leave they are dead to you is long gone with enlightened employers.” The quality of managers is a key to retention. “How many managers, especially in law firms, have been trained to think like managers or are trained to be effective managers? It typically doesn’t happen and with the unrelenting focus on billable hours they have no time to support and develop their people. “Time-billing is a preoccupation with employers of lawyers and accountants. Young people don’t want that and might decide to leave because of this way of working. The old fashioned ‘I did it, you can’ – attitude needs to go if you are going to attract and retain the best people.” Damian Hanna believes that employers should give employees clear instructions, and an open door to ask when necessary. “You need a clear understanding of what that particular employee can do, to ensure they are not given work that is way under or way over their skill level,” he says. “Recognise effort. Good managers

need to know that appreciation is very important. Junior lawyers know that they aren’t going to get everything right, but they don’t want to be made to feel stupid. They need to be respectfully told when something is incorrect, supervised and not made to feel inadequate. “Junior lawyers also want to know that they are part of something bigger, that their job is important and meaningful and this may mean meeting clients earlier than they normally would.”

Changing expectations Mr Hanna says the workforce is changing and the expectations of younger lawyers are changing, but at all levels employees are now happy to turn down opportunities even in a tight market. He says employees are prepared to take the risk and change jobs within a short period of time. For him the most quoted reason for leaving is the lack of adequate training and the feeling that they have to ‘fly by the seat of their pants’. Sheryll Carey says issues that have surfaced over the last two years are having an impact on firms’ ability to retain staff. “In spite of the Bazley report and the #Me Too movement, I still hear of some firms that are slow to change their 20th century ways of thinking. Culture comes from the top and partners must realise that their attitudes and actions shape the firm. “The cost of replacing staff is huge, not to mention the downtime, so any firm that doesn’t see their staff as their number one asset will not prosper. I don’t think employees’ attitudes to wanting different ways of working is limited to lawyers, but law firms seem to take longer to implement the changes than the corporate world. “At the end of the day we still have to respond to client demands and urgency never goes away. Certain work types are easier to cater for with regards to flexibility than others, and the size of the team also bears a big weight.” ▪ 73


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Having the philanthropic conversation Is it good for business? BY ELEANOR CATER

While many people don’t think of themselves as philanthropists – after all, it’s a word that many align with the rich and famous – we find that most people do want to make a difference in the world. And in our line of work we find that philanthropy, or good old-fashioned Kiwi generosity, gives people great fulfillment in their estate planning. Conversations that go much further than discussing technical aspects of law and strike right at the heart of a client’s core – their philanthropic aspirations – can lead to fulfilled and loyal clients. Bill Holland, long-time partner with Holland Beckett Law, says: “My experience has been that clients appreciate being advised of their options and a philanthropic conversation with the right clients leads to an improved relationship – and can easily lead to business growth.” Steven Colligan, registered psychotherapist and business consultant, has spent many years in his professional life considering human behaviour and how we connect. He says that while clients want their professional advisers to ‘know their craft’ it’s the soft skills, like those that you would employ in a conversation around a client’s giving aspirations, that are important and that will really differentiate your business. “We are all people first, and we 74

prefer meaningful conversations that go beyond the technical. These ‘soft skills’ are quite different from the technical skills which are learned through formal education,” says Mr Colligan. “If through your work you can listen, you can connect, you can provide a feeling of the client feeling valued and understood, it creates loyalty. And loyalty is certainly good for business.” Mr Colligan uses the words “listen” and “trust” a lot when referring to business relationships. He says that professional advisers would do well to start early by connecting with their clients, and feeling confident in doing so. Professional advisers we work with across New Zealand often say the following about having the philanthropic conversation: • It offers a significant point of difference in their advisory role, • It offers a more holistic financial planning approach, • It gives professional advisers the opportunity to connect with a client’s core aspirations and values, something which they say really strengthens the relationship, • It creates loyalty.

The research A Harvard Business Review study from 2015 concluded that emotionally connected clients are more than twice as valuable as highly satisfied clients, as they buy more, are less price sensitive and are more likely to recommend you. Research also indicates that clients actually want to have the philanthropic conversation early on with their professional advisers. American research (2013 US Trust and Philanthropic Initiative) found that high net worth individuals prefer to have the philanthropic conversation in the early stages of the adviser relationship and that they actually prefer to discuss their values and passions regarding giving, rather than the technical aspects and tax advantages. And studies from the UK (2016 Legacy Giving and

Behavioural Insights Report) found that a professional adviser’s role is key: twice as many people are likely to leave a bequest or philanthropic gift in their will if it is suggested to them as an option and almost three times as many people will leave a bequest if their professional advisor suggests that it’s something other people do, so normalizes the conversation. And, with the biggest intergenerational wealth transfer the world has ever seen from the baby boomer generation to the next starting to take place, now is the time for professional advisors to be brushing up on those ‘soft skills’ and starting these meaningful conversations with their clients about their philanthropic dreams and aspirations. It’ll be good for business after all. September is Wills Month and community foundations all around NZ provide free resources and philanthropic expertise to lawyers and professional advisors around having that crucial philanthropic conversation. See more at www. nzcommunityfoundations.org.nz ▪ Eleanor Cater  eleanor@ communityfoundations.org.nz heads Community Foundations of New Zealand where she works with foundations across New Zealand building community funds and encouraging generous people to be a part of shaping their own community’s future.


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Global trends for the in-house legal profession BY JEREMY VALENTINE

In LawTalk 931, August 2019 our Executive Manager, Gabrielle O’Brien, highlighted some of the key themes that came through in the Deloitte/ILANZ in-house trends survey (“In-house legal – A force to be reckoned with”). Curious to understand whether there were any parallels with our in-house counterparts in other jurisdictions, we reached out to some of our colleagues around the globe to see what was on their minds and asked them to share their thoughts. What quickly became apparent was that wherever you practise as an in-house lawyer, there are both similar opportunities and challenges.

Growth in influence within varying regulatory frameworks The growth, in numbers and in influence, was commented on in several jurisdictions. Eric Amar, Legal Director of the Bollore Logistics and a governance member of the Association Française des Juristes d’Entreprise (AJFE) – the French Association of Company Lawyers, notes there has been a tremendous change in the influence of in-house lawyers in France over the last 10 years while also highlighting a paradox. “Being influential puts us in the middle of the business and less of an ‘arbitrator’ than before.” While noting that there are more opportunities to be associated with big projects and strategy, Mr Amar emphasises the skills required from in-house lawyers to navigate these What quickly opportunities whilst managing combecame pliance and ethical considerations. apparent was Stéphanie Fougou, Honorary that wherever President of AFJE, and Company you practise Secretary of Accor Hotels, also notes as an in-house the increasing influence of in-house lawyer, there counsel although is also aware that: are both similar “there’s still lots of work to convince opportunities that the law is not just execution or and challenges litigation but of value to strategy”. For both Eric Amar and Stéphanie Fougou, a key consideration in France is the omission of legal

privilege for in-house lawyers and the need to address this for the members of their association. It is easy for in-house lawyers in New Zealand to forget how fortunate we are to operate on the same basis as our counterparts in other areas of the law. This is certainly not something to be taken for granted though. A case currently before the Auckland High Court – NZ Iron Sands Holdings Ltd v Toward Industries Ltd [2019] NZHC 1416 highlights that privilege for in-house lawyers will always be subject to scrutiny and many in-house lawyers will be following the next steps in this case closely. Thavakumar (Kumar) Kandiahpillai, the President of the Malaysian Corporate Counsel Association and Group Head, Legal and General Counsel of Sapura Kencana Petroleum, also comments on the acceptance of in-house lawyers as an integral part of management planning, strategy and decision-making rather than distant or ad hoc advisers as well as the rapid growth in in-house counsel. “I reckon the numbers have grown tenfold in the last 15 years,” he says. In the context of an unregulated environment though, Mr Kandiahpillai expresses some concern. “The profession is unregulated and there are no objective standards, unlike practising lawyers. While the tremendous growth provides huge opportunities, the risks too increase, perhaps exponentially.” Several of our international counterparts commented on the more complex environment that in-house lawyers are operating in with the expansion of regulation, compliance and data protection requirements. Again, a strong echo with the themes that came through in the New Zealand trends survey. Angeline Lee, President Emeritus of the Singapore Corporate Counsel Association and Vice President of the legal secretariat at Singapore Press Holdings, notes that new legislation regarding AML/CFT and anti-bribery and corruption compliance all reflect this in her local jurisdiction.

Globalisation and the digital future For Mr Kandiahpillai, globalisation presents huge opportunity. “Globalisation and technology makes physical locations less and less relevant. Legal hubs and in-house lawyers can be located anywhere,” he says. 75


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There was general agreement that technology should be viewed as an opportunity more than a threat with a consensus that the future was more about understanding and upskilling to better realise the benefits. This is coupled with the recognition that for the organisations we represent digital programmes are commonly a key strategic programme. In Singapore, Angeline Lee cites the example of the Ministry of Law, Law Society of Singapore, Enterprise Singapore and the Infocomm Media Development Authority launching a SIN$3.7m funding scheme that allocates funding of up to $130,000 annually for each Singapore law practice. “Technology is transforming the landscape for lawyering in house and in private practice,” she says.

People, progression and protecting wellbeing Career progression and opportunities for in-house lawyers is on the mind of our counterparts in Scotland, France and Singapore. Beth Anderson, Head of Member Engagement for in-house lawyers at the Law Society of Scotland notes: “A lot of in-house teams have a relatively flat structure. In order to retain good people, managers of in-house teams increasingly need to find innovative ways to ensure bright young lawyers have access to sufficient development opportunities to ensure their career ambitions aren’t restricted.” Stéphanie Fougou notes that in France the move toward a more strategic role and positioning of the legal team is driving a need for higher levels of soft skills for in-house lawyers. Angeline Lee is conscious that there is an oversupply of legally trained people in Singapore and this presents a different set of challenges with no permanent roles for some and more varied work arrangements. Growth in the technology, banking and real estate industries provide opportunities though. “Lawyers in-house must be brave and forward looking …. we should always be a step forward to lift our corporate business to a better risk managed and sustainable future,” she says. While optimistic for the future of the in-house profession and excited by the growing influence of this part

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of the profession, there is also an acknowledgement that a legal career is rewarding but can be challenging whatever part of the profession you work in. Beth Anderson notes “We need to continue to champion best practice in connection with emotional wellbeing and challenge the stigma around mental health, to help ensure that people can maintain good health and access support if they need it.” Paying attention to work environments and seeking to create optimal working conditions that recognise we are human first and employees second, is not just something we aspire to here in New Zealand.

Sharing experiences and lessons While the regulatory environments may differ and there may be challenges that we don’t have in common, it seems that there are many issues that we share with our international counterparts. Further, the trends or developments that develop in other jurisdictions make their way here. It has been useful over the years to share ideas on initiatives to support in-house lawyers through our alliance with In-house Counsel Worldwide (ICW) – an “association of associations” for in-house lawyers. We have learnt much to better serve the needs of our in-house profession and ultimately the organisations we represent. Next year we will have the opportunity for members to also hear more from in-house lawyers working in other parts of the world While the when ICW representatives, all pracregulatory tising in-house lawyers, join us in environments Wellington on 20-22 May for the may differ and combined 33rd ILANZ conference there may be and ICW World Summit. Look out challenges that for information updates on the we don’t have conference at ilanz.org

in common, it seems that there are many issues that we share with our international counterparts

Jeremy Valentine is a member of the ILANZ Committee and is General Manager – Risk, Legal and Governance at the Co-operative Bank. Jeremy is also Vice President of ICW.


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TA L K I N G A B O U T M E N TA L H E A LT H

Anxiety happens to me, and asking for help makes me a better lawyer BY HENRY CLAYTON

I have suffered through periods of high anxiety at times in my career. I’m not sure if that’s the correct term so I’ll tell you what I mean. It’s more than just worrying about things. I was trained to worry about things – to check and re-check my work. And sometimes the self-checking process finds mistakes, and that just reinforces the need to check and re-check. Some amount of worrying is good. This in-built self-doubt makes us do a better job. But it can be an occupational hazard too. For me, the anxiety comes when the balance between self-doubt and self-confidence goes awry. When the healthy paranoia becomes unhealthy paranoia. My high anxiety starts when I’m constantly thinking back on work I’ve done and worrying about any minor imperfection or irrelevant detail. I can’t stay engaged in a simple conversation at home because my mind has already wandered back to thinking about work. There’s a fear of having missed things. I’m still checking and re-checking in my head days after an email has been sent. It also comes as endlessly worrying about how future events might play out. I can get physical discomfort in my stomach and a dry mouth. I can become tense and overly sensitive to background noises like pen clicks. It makes me very irritable. This is more than normal worrying.

Writing this here, and with my name and photo included, I worry you’ll all think I’m a nervous wreck. I’m not. I like the exhilaration of dealing with high pressure situations and doing difficult work. I quite like a bit of stress. These periods of high anxiety have happened only a handful of times in my career, and usually when I’m also worrying about some genuinely stressful things outside of work. But when they do happen, they’re a problem. Too often I have suffered through this high anxiety, working hard to appear that I’m still in control. But suffering through it is awful. I feel exhausted and generally have a low mood. And the quality of my work probably suffers too, which makes me feel even worse.

▴ Henry Clayton

Asking for help It took me too long to find the simple solution that works for me: asking for help. And not just asking for help on the issue that led to the anxiety, but announcing how I’m feeling. A while ago I was working on a high pressure project and one matter within it started to go badly. It was the sort of challenge I would normally respond well to, but this time it seemed to tip me off balance. I could feel my stomach churn just reading the subject line of each new email arriving in my inbox. My confidence was sinking and my fear was rising. I was annoyed at myself. “I can

▴ Sarah Taylor

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Michael Reason Barrister Specialist in tax, UK pensions, superannuation, trusts and corporate, civil legal aid provider. Practising in England and New Zealand.

michaelreason.com 021 156 6156 michael.reason@fieldcourt.co.uk

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normally handle this!” Then, after a few days of struggle, I took a proper breath. “I can normally handle this. So what’s wrong? I’m not in control anymore. Whether I like it or not, that bad anxiety is here.” I met with the relevant manager of my client team. (This was in an in-house role. If I were in a firm, I think I’d have spoken to a supervising lawyer or peer.) I told him I felt out of control and suggested that maybe someone else could take over on the matter. “Of course,” the manager said, and he was more concerned about me than the work anyway. I left that conversation feeling high. It’s only when you relax you realise how tense you were. I kept working on the rest of the project confidently, and probably did my best work yet. That wouldn’t have happened if I’d tried to struggle through. It was tough for me to ask if I could step aside. I want to be a lawyer that is sought after (and I still can be). While I was trained to worry about things, I was also trained to display control and confidence, to keep worry hidden unless the client needs to know. So earlier in my career I would’ve

just kept working through a period of high anxiety.

People are kind But speaking up was so much easier than that. My pride had been holding me back. No one has thought less of me for being honest about my feelings and asking for help. People are kind, and we all know how hard it can be. Plus, with the help of all the ‘Practising Well’ articles and great conference speakers over recent years, I realised this was all okay, and maybe even normal. Sometimes that productive worrying, which helps me be a good lawyer, can get the better of me. And when it does, I still have the strength and judgement to acknowledge I’m feeling out of control, to know the work and my health matter more, and to ask for help. I am looking after the client and looking after myself, and that’s what good lawyers do. Maybe you’re reading this article and you don’t get it. Fair enough. There is still a message for you, and for all readers. Please help to build and maintain a culture where we let lawyers admit to their colleagues when


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Tacos fall apart and we still love them BY SARAH TAYLOR

they’re struggling. Especially for our young lawyers, who have high expectations of themselves and feel they are competing with their peers. Please value those young lawyers who show the good judgment to say when they’re not coping and have the humility to put the client’s work ahead of their own image. We might need to display control and confidence to our clients, but not to each other. I worry about the mental health of lawyers. We all want to be good lawyers. We all want to appear strong. But sometimes it’s just too hard and that’s okay. We can’t be too proud, or too competitive. Especially our young lawyers. Ask for help. Let your colleagues know they can ask for help. Being a good lawyer – a lawyer who cares – is hard. But it is much easier in a team. ▪ Henry Clayton works as an in-house government lawyer in Wellington, where he has been practising law for the past 10 years. He lives in Lower Hutt with his partner and two young kids.

I started this series a year ago with the aim of destigmatising mental health issues and normalising conversations about mental health in our profession. It’s a work in progress, but feedback I’ve received and conversations I’ve been having indicate that these articles are resonating and we’re on the right track. 23 – 29 September is Mental Health Awareness Week (MHAW). Mental health is something we need to think about every day, not just during MHAW, but MHAW provides a great opportunity for us to pause and reflect on the state of our own mental health and of those around us. I’ve had particular cause to reflect on my own mental health recently. A few weeks ago, I fell apart. It wasn’t work-related but it affected my ability to work. I had panic attacks (omg, hideous) and some days I couldn’t see my computer screen because I was crying too much. Fortunately, I work in an environment where I could tell my colleagues without fear of judgement or negative repercussion. They were amazing. They listened, shared my workload, regularly checked in on me, and made it clear that my health and recovery were far more important than any work matter. Not everyone has this. I don’t know how people get through tough times while trying to work in an unsupportive environment. I want to echo Henry’s key message about building a workplace culture, nay a profession, where we can admit to each other if we’re struggling. A lot of us became lawyers to help people. We can start by helping each other. There are not many work matters that are more important than someone’s health. If I’m to throw down a gauntlet this MHAW, it is to do one thing (at least) to help yourself or someone at work. It doesn’t have to be big, it doesn’t have to be perfect, and it doesn’t have to be led by senior management. Don’t over-think this. It can be as simple as asking a colleague if they’re okay. If they’re not, suggest a walk, a talk, a coffee. If they want to talk, listen. If they need help, help them get it. Regularly check in on them. If you’re the one struggling, tell someone. We’re not weak for having problems or needing help. We’re strong for admitting we do. It’s okay if you fall apart sometimes. Tacos fall apart and we still love them. ▪ Sarah Taylor is the co-ordinator of this series, a senior lawyer, and the Director of Client Solutions at LOD NZ, a law firm focused on the success and wellbeing of lawyers. If you’d like to contribute to this series, please contact Sarah: sarah@lexvoco.com www.mhaw.nz  www.mentalhealth.org.nz 79


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Coaching: a new approach to address wellbeing and performance BY SHA PERERA In my work with local legal firms I have identified common issues that lead to overall dissatisfaction at work. These include the overwhelm created by keeping up with legislative changes, increasing demands from clients, workload issues, constant interruptions, deadlines and balancing the time available with priorities and quality of work. Managing work/life balance is also a huge concern and it can be easy for work to take over, with employees losing sight of what is important to them. Coaching helps to find practical ways to maintain a professional standard while getting back some balance in life. Solutions are proactive, positive and future focused. I work with forward-thinking organisations with leaders who demonstrate a willingness to invest in the health and wellbeing of their workers to see them thrive in a high-pressure environment. These firms recognise the need for additional expertise to support and grow their teams and they want something that has the potential to create some lasting results. It’s about retaining talent and increasing the wellbeing and capability of their people.

The 2018 Workplace Environment Survey carried out on the legal profession showed that there’s never been a more opportune time to focus on lawyers’ welfare and that real change to improve wellbeing in the workplace must come. This makes helping lawyers at all levels to manage stress, and raise motivation and job satisfaction so much more important. Changing the workplace culture goes a long way to achieve those goals. What is required from our leaders today is very different from the traditional form of leadership and requires a new approach to organisational development and employee wellbeing. One such approach that is gaining more traction is the process of coaching.

A personal development partnership In essence, coaching is a form of personal development. It’s a partnership between the coach and client that assists to bridge the gap between where the client is now and where they would like to be, far more effectively than if they worked alone. It’s a creative, thought-provoking, learning conversation that helps to maximise personal and professional potential. My clients appreciate the space to think and reflect on their situation and the opportunity to speak openly with someone from outside of the organisation. Whether it’s for current and emerging leaders, new employees, support staff or those transitioning into retirement, the coaching approach is used across the board to improve professional skills, team engagement and employee wellbeing. 80

Law firms using coaching

What is required from our leaders today is very different from the traditional form of leadership and requires a new approach to organisational development and employee wellbeing

One firm using coaching for their team is Takapuna-based Armstrong Murray. We started working together in March of this year, with all members of staff having some coaching sessions over a four-month period. “It goes without saying that your staff are your most important asset,” says John Armstrong, one of the partners. “We’ve worked hard on having a positive, productive and enjoyable working environment, so are always looking for ways to build on this. We heard about coaching; how it can help people to get the best out of themselves, by helping them to deal with challenges that may have been holding them back, to recognise their strengths and weaknesses so that they can find a better focus. We want our staff to be able to wring the maximum satisfaction out of being here and doing what they do. Coaching has certainly assisted that.” Morton Tee is another Auckland legal firm that is using coaching to support their team.


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“Our firm was entering a stage of transition and partner succession and we felt it important that our new team members have the opportunity to assess their personal and professional life-work balance,” says partner Stephen Tee. “Coaching helped us to identify areas that created stress and address issues within our firms’ procedures. It also enabled the team to examine and communicate openly with each other and make change a positive learning process.” Coaching helps to raise self-awareness, consider different perspectives and gain clarity about a situation, so the necessary action steps can be taken to achieve the desired outcome.

Individual focus The impact of coaching is heightened because it is tailored to the needs of each individual. This personalised approach to managing stress and improving capability is far more effective than a ‘one size fits all’ approach. While putting in place effective health and wellbeing practices is of utmost importance, coaching also supports individuals to raise their levels of emotional intelligence,

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improve professional aspects of their work and implement strategies to achieve their goals. Clients are able to develop practical skills in communication, time management and improving work habits. And these are just some of the benefits of a coaching conversation which is very different from consulting and giving ‘expert’ advice. In coaching, the client is seen as the expert in their life/situation. Through the conversation, the client discovers what they need to do to move things forward, which may include the courage to seek the advice of other professionals or identification of gaps for further professional development. Coaching is also very different from counselling or therapy. There is no need to delve into the past. Instead, the aim is to establish current and future desired state. The focus is on the strengths of the individual and moving forward in a positive and proactive way, rather than focusing on the negatives. While the profession of coaching is still fairly new, the process of coaching is firmly grounded in neuroscience, positive psychology and adult learning theories.

Choosing a coach So, how does an organisation choose a coach? As coaching is still an unregulated profession most organisations look to hire a coach with professional credentials. An International Coach Federation (ICF) credential indicates compliance against rigorous education and practice requirements, supported by the set of core competencies and a code of ethics designed to protect and serve buyers of coaching. Coaching is on the rise in New Zealand and while some traditional wellness programmes struggle to create sustainable change and a return on investment, coaching has the potential to make a difference to both employee wellbeing and performance and create the behavioural transformation required for long-term benefit to the individual and the organisation. ▪ Sha Perera  sha@emergeandtransform. com is an ICF credentialled Aucklandbased career progression coach. She has over 20 years’ experience in communications and marketing, education and business management and operates Emerge & Transform Coaching – www. emergeandtransform.com. 81


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Are your thoughts making you sick? BY RAEWYN NG

Up until very recently it was widely accepted that our destiny, our health, our life, was determined by our genes. We accepted that the sort of health challenges or diseases we might face in the future were written in our genes and that it couldn’t be changed. While it’s true that we can’t change our genes, there’s evidence suggesting that we have more control over our fate than we previously believed. It is now thought that as much as 90% of disease has nothing to do with genetics and more to do with lifestyle choices, environment and perception. The concept of the mind-body connection is not new and in recent years the idea has become more mainstream and acceptable. While awareness that our thoughts can impact our behaviour and health is only one part of the overall picture of wellbeing, it’s a part that we can’t continue to ignore.

A community of 50 trillion cells Stem cell biologist and author of The Biology of Belief, Dr Bruce Lipton, explains it like this: We are each made up of a community of 50 trillion cells, floating in fluid and encased in skin. When you change the chemical composition of the fluid it changes how those cells develop even though they have the same genetic information. Whether the cells turn into bone, muscle, fat, etc, is determined, not by the genes, but by the environment those cells 82

are in. They are all the same cells, just expressed differently. The environment of the cells (that is, our body and more specifically the fluid in our body – the blood) is controlled by hormones released by the brain. The brain releases hormones that correspond with how we see the world, and this influences the chemical composition of the cell environment, or the blood, and therefore how our DNA is expressed. As Dr Lipton explains, as we interpret the world we feel emotions and hormones are released. For example, love is associated with hormones like dopamine, the feel-good hormone; oxytocin, the bonding hormone; and growth hormone, which rebuilds our body and maintains health. The hormones affect the blood chemistry and adjust the expression of cells. You’ll notice people in love, with that ‘glow’ of good health. Contrast this to someone in a state of fear, releasing stress hormones and inflammatory agents, the blood chemistry is very different, and the expression of the cells adjusts accordingly.

The impact of stress Stress, whether it’s real or perceived (for example, if we just think about that stressful situation from last week) has the same effect on the body. It creates the same cascade of hormones and chemicals, changing our body chemistry without even being in that stress situation. Simply by thinking about it, we’re affecting our cell expression. Stress changes body processes

– sleep is disrupted, digestion slows, heart rate and blood pressure rises, to name a few. While we can cope with these changes in the short term, long term stress compromises the body’s repair functions and leads to disease. If a stress response can be triggered by just our thoughts, creating a destructive environment for the cells in our body, making us sick, it follows that our thoughts can also make us well. When it comes to our thoughts, we can have anywhere between 12,000 and 60,000 thoughts a day, and while we may think we’re in control of what we think, we should think again. Some research suggests that as much as 98% of our thoughts


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are influenced by the sources listed above and more. While your unconscious or subconscious may have been running habitual thought programmes throughout your life in reaction to everyday situations, it is possible to consciously take charge and re-programme them.

Some first steps

today are the same as the ones we had yesterday and what’s more, 80% of our thoughts are negative.

Sources Unhealthy, unproductive and negative thinking patterns can stem from many sources, such as: The critical inner voice: The internalisation of painful early life experiences, attitudes towards us by influential caregivers and their attitudes towards themselves. The inner critic causes us to unconsciously or subconsciously adopt a pattern of destructive thoughts toward ourselves and others. The worrier: The ‘what if ’ thoughts that are usually motivated by fear, and sometimes by negative

past experiences. The reactor: The anger, frustration and pain that can be triggered by events, situations and experiences that remind us of unhealed wounds from the past. The should: The rules that must be adhered to. Breaking the rules often leads to guilt, regret and anger. These negative thoughts influence our hormone production, changing our blood chemistry and therefore how our cells are expressing. So, if we want to improve our health, we can start by changing our thinking. Taking control of your thoughts is not easy, given that only around 5% of our thoughts are conscious and the rest is unconscious or subconscious and that those thoughts

Try these steps to begin with: (1) Bring awareness to your thoughts: Most of the time we’re not consciously aware of our thoughts so start by noticing and observing your thoughts and emotions, without judgement. Understand that if you can recognise your thoughts and emotions, they do not define you and you are independent from them. (2) Decide if your thoughts are serving you well: The thoughts and emotions we have are often dictated by our previous experiences and may have served us well in the past, but that is not always going to be true as we move forward. If your thoughts and emotions are not serving you well, question them, challenge them, and choose to shift, release or change them. (3) Recognise that you are in control: Can you see this thought from another perspective to allow it to shift? Focus on your breath and let your thoughts go or ask how you can change this thought to something that would be more helpful. (4) Focus on the new thought: As with any habit change, we need to practise to reinforce new patterns. Taking control of our thoughts can have a powerful effect on our health, just consider the placebo effect where patients in clinical trials who believe they’re receiving miracle drugs or surgeries but simply get sugar pills, saline injections or fake surgeries get better anywhere from 15–70% of the time. We obviously can’t say that positive beliefs are the only factor in the state of our health because, after all, accidents and unforeseen events happen, and genetic predispositions and lifestyle choices do play a role. But what we do know is that negative beliefs cause stress hormones to flood our bodies and negatively impact on health just as positive beliefs promote healing hormones that encourage health and healing. If you have trouble shifting, releasing or changing thought patterns that you now recognise as unhelpful, if they affect your ability to meet your daily responsibilities and your capacity to enjoy life, consider seeking the help of a qualified therapist. Change the conversation you have with your body, change the environment you’ve created for it and improve your health. ▪ Raewyn Ng  rae@mybod.co.nz is a movement coach with an interest in wellbeing and holistic health, managing stress and living a balanced lifestyle. 83


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SUSTAINABLE PRACTICE

The environmental impact of those electronic things on your desk At the heart of the climate change problems the world is experiencing are greenhouse gas emissions into the atmosphere. Climate change is primarily caused by the accumulation of greenhouse gases in the atmosphere due to human activities. These absorb heat from Earth’s surface, warming the atmosphere. New Zealand’s emissions mainly come from fossil fuels that emit carbon dioxide, and agriculture which emits methane and nitrous oxide. Statistics New Zealand says that in 2016, road vehicle emissions made up 39.1% of all our carbon dioxide emissions, manufacturing and construction emissions 19.7% and electricity generation 8.8%. The energy sector produced 87.5% of all carbon dioxide emissions. Methane from livestock digestion made up 35.3% of gross emissions in 2016. Our net greenhouse gas emissions rose 54.2% from 1990 to 2016 due to more trees being cut down and an increase in gross emissions. Greenhouse gas emissions are reported in carbon dioxide equivalents units – which is a measure for how much global warming a given type and amount of greenhouse gas causes, using the equivalent amount of carbon dioxide as the reference. This allows consistent reporting of different greenhouse gases. That said, let’s move from the roads and paddocks of New Zealand to the things which have revolutionised workplaces in the last four decades – laptops, email and the internet. Sitting inside and probably using these every day, are you doing anything which has an impact on climate? The answer, of course, is yes. In 2010 Mike Berners-Lee produced a book called How Bad are Bananas: The Carbon Footprint of Everything. This has become a 84

much-referred to source of information. While it’s still used to state “facts” on emissions, it’s nearly a decade old now. Our investigations have attempted to use more up-to-date sources, but some of these still draw on his research.

Email

To put it into perspective, the average passenger vehicle emits 411g of carbon dioxide per mile – so driving one mile (1.6km) is roughly equal to sending 8.22 emails with attachments or 102.75 “regular emails”

Mike Berners-Lee worked out that the average spam email has a footprint equivalent to 0.3 grams of carbon dioxide emissions. A normal email has a footprint of 4 grams of CO2 emissions – calculated from the power data centres and computers required to send, filter and read a message. “While the act of responding to and sending emails is often labelled as a mundane, tedious chore, it contributes significantly towards one’s carbon footprint because computers, servers and routers must expend energy to send, read and filter emails,” says Ahyoung Kim-Lee of Cornell University’s Roosevelt Institute (“Is Email Bad for the Environment?”, 5 March 2017 on the university’s website). “Emails with a large attachment can have a footprint equivalent to 50 grams of carbon dioxide,” she says. To put it into perspective, the average passenger vehicle emits 411g of carbon dioxide per mile – so driving one mile (1.6km) is roughly equal to sending 8.22 emails with attachments or 102.75 “regular emails”, says Ahyoung KimLee. The average US business user in 2016 sent and received an average of 123.9 emails per day, and 45,224 emails a year – annual email use in terms of carbon emissions equivalent to driving 180km. “If the 62 trillion spam messages sent out annually are eliminated, 20 million tons of carbon dioxide could be prevented from entering the atmosphere.”

Websites “A typical website produces 6.8g of carbon emissions every time a page loads… That’s roughly the same as the emissions produced when you boil an electric kettle for a cup of tea,” said erjjio studios managing director Ben Clifford in March 2019. His company is an environmentally-focused web hosting, design and developer based in London.


“We all know of the typical contributors to our own individual carbon footprint – for example, air travel, the food we choose to eat, the type of car we drive (and how much it’s used instead of public transport), and the energy provider we choose for our home,” he said in a blog post, “The alarming environmental impact of the internet and how you can help,” (at https://medium.com/ wedonthavetime/). “But we never stop to think that we view, save and exchange an endless stream of data every day – photos, videos, emails, music, messages, documents, presentations and countless other formats. “This daily lifestyle is powered by a vast network of tangible, physical infrastructure – from data centres to transmission networks to the devices we hold in our hands, place in our laps and have on our desks. The transfer and mass storage of our data is enormous, and growing at a rapid speed.” Mozilla’s 2018 Internet Health Report (https://internethealthreport.org/2018/) says if it were a country, the internet would be on track to become the fourth largest CO2 emitter on Earth after the US, China and

India by 2025. “The internet’s data centres alone may already have the same CO2 footprint as global air travel,” says the report, and explains that “a common convenience like switching lights on by speaking to a digital assistant creates a chain of reactions beyond your home, from one data centre to another, as information travels back and forth.” Back to Ben Clifford, because he has some useful suggestions for reducing personal footprints: • Delete emails that you won’t need again, to prevent them being stored unnecessarily. • Unsubscribe from email newsletters and mailing lists that you never read. • Delete apps on your phone that you don’t use. • Delete redundant screenshots and photos from iCloud or other cloud drives. • Use your phone for quick Google searches instead of a laptop – it uses less energy. And if you’re worried about your own website, the Green Web Foundation (www. thegreenwebfoundation.org) maintains a

directory of all the world’s services, data centres and hosting providers which are known to use 100% renewable energy. You can plug the address of any website in and check it. Another check at www. websitecarbon.com/ will show how much carbon dioxide your website produces (you need to disclose visitor numbers).

Laptops While your laptop is being made it will draw upon several rare-earth metals. These are mined in China, which accounts for 97% of the world’s rare-earths supply. “Relative to other consumer goods, laptops do not consume much electricity, but they still have a carbon footprint,” the Sciencing website says. “The University of Pennsylvania estimates that, depending on the model, laptops usually consume between 20 and 50 watts per hour of moderate activity. Even a laptop at the highest end of power consumption – using 80 watts per hour – would only produce 5g of carbon per hour of use.” So, leaving your laptop on for an eighthour stint means you will emit 0.4 kg of carbon into our planet’s atmosphere. For 85


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a 10-person office, that’s 4kg a day, 20kg a week and 960kg a year (with a four-week holiday). Not quite a tonne, but getting close… Laptops are “significantly greener” than desktop computers, says Sciencing. “Desktops use much more electricity and therefore produce more carbon per hour than laptops.” The manufacturers of all types of computers are, of course, very aware of the enviromental impact of their products. In 2010 Dell calculated that a “typical business laptop from Dell” – the Latitude E6400 – emitted a total of 350kg of CO2 equivalent over its whole lifecycle. This varied according to country, but went from manufacturing, transport, use and then recycling (assuming 75% was recycled and the rest incinerated). HP produces Product Carbon Footprint Reports. The HP 250 G7 Notebook PC was estimated this year to have a carbon footprint of around 275kg of CO2 equivalent during its life. To end with a hopeful piece of news. In May 2019, UK-based Circular Computing (a brand of A2C Services Ltd) announced that it is producing the world’s first remanufactured carbon-neutral laptops (“World’s first carbon neutral laptops”, The Recycler, 15 May 2019). “The IT industry causes as much greenhouse gas pollution as the entire airline industry, with figures rising as internet usage soars,” says Circular Computing. “More than 160 million new laptops are made every year, responsible for around 17% of electronic waste, and production depends on many of the earth’s dwindling resources, including rare ‘conflict’ minerals, metals and water.” Instead of being refurbished, the laptops are completely re-built. “They cost around 40% less than their equivalent new top-brand laptop, and the company re-purchases the laptops every three years to re-join the remanufacturing process and be redeployed to other areas where they remain fit for purpose. In total, the company estimates three re-loop cycles and another nine years of useful life, which in turn creates enormous positive environmental, ethical and social impact.” Circular Computing – which plants five trees for every laptop sold – has signed a contract with Fortune 200 company Synnex. ▪ 86

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LEGAL INFORMATION

Online legal information providers look forwards BY DAVID TURNER

Great adventures often begin with the assembling of an eclectic band of people unsure of what they are getting themselves into, who then overcome obstacles to unite and save the world. While saving the world was not an official agenda item, it was in a similar spirit that the University of Otago Legal Issues Centre (UOLIC) convened an online legal information forum in Wellington on 25 July, in what could be the first step towards more cooperation among those whose mission includes solving people’s legal problems online. The 16 forum participants were from the community and government sectors, including the Citizens Advice Bureau, Community Law, the Ministry of Business, Innovation and Employment, the New Zealand Legal Information Institute and the New Zealand Law Society, as well as individuals from the social entrepreneurial sector. The meeting was kindly sponsored by the Michael & Suzanne Borrin Foundation. This was the first known time such a group has come together in New Zealand to discuss online legal information (OLI). It was a diverse and passionate group, each participant bringing their own blend of skills and experience to the discussion. What they had in common was a belief in OLI’s ability to empower people to deal with their legal problems, and enhance democracy, education and access to justice. Like Marvel’s Avengers, the group assembled to tackle a growing and important challenge for New Zealand: the rising demand for online legal information due to the widening civil justice gap and the need for people to ‘self-help’ when solving legal problems. Or, in a more positive light, it was a chance to think about how to make the most of opportunities presented by developments such as new technology and the emerging discipline of legal design.

State of the nation Before delving into future possibilities, the group began with a ‘state of the nation’ style analysis of OLI in Aotearoa. What’s it like to open a web browser with the intent to solve a legal problem in New Zealand? And what’s it like


for the people ‘behind the screen’ trying to deliver that information? The answers were optimistic but aware of significant challenges. On the upside, there is already a good base of quality OLI in New Zealand, which is trustworthy and well explained – the result of considerable effort by dedicated organisations and individuals. On the downside, the good information lives among a lot of misinformation. And even after cutting through the noise to a good website, users are expected to not only be reasonably literate in English, but also be capable of absorbing large amounts of text and converting it into action. Some might experience a bewildering maze with no guide to light the pathway through a wide range of options: a community website? Reddit? A government department? Or even a paid online service? For some users, there is no maze or choice – just an absence of information for and about their issues. An urgent need was for OLI that is not only translated into Te Reo, but which covers Māori issues. In the same vein, New Zealand has a growing diversity of communities with different languages and needs. Many of the forum participants were receiving requests for OLI that would help specific communities.

Key challenge Meeting demand for varied and niche information in a sector with stretched resources, was identified as a key challenge for OLI providers. While there is a strong base of talented people with a solid history of creating OLI, they have insufficient resources and time to take advantage of new developments and create the growing list of new materials that people have requested. This is not to mention the evergreen challenges of creating OLI – keeping it current with constantly changing law and

It was a diverse and passionate group... What they had in common was a belief in OLI’s ability to empower people to deal with their legal problems, and enhance democracy, education and access to justice

policy, balancing accuracy with readability, and trying to simplify information about complex institutions and laws that are not themselves user-friendly. Currently, OLI providers are mostly tackling these challenges separately, and so a source of optimism was the prospect of working together to find new solutions. Could we work together to discover the online needs of different communities? Can we share data and research? Can we link virtual arms to guide a person from the start of a legal dispute to its satisfactory resolution? There are many ways of pooling our strengths, and the UOLIC is exploring ways we can facilitate the work of OLI providers and improve the experience of people in search of online answers to their legal problems. This was our first time in the same physical location and so we found more questions than answers about how to work together in the online world. Of course, cooperation requires overcoming barriers, especially when organisations have different objectives and time and resource pressures. But the group finished the day with a common goal of forming a stronger eco-system with better connected providers and users of OLI, and that’s a great start. Watch this online space! ▪ David Turner  david.turner@otago.ac.nz is a Professional Practice Fellow at the University of Otago’s Legal Issues Centre. 87


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LAWYERS COMPLAINTS SERVICE

Complaints decision summaries Files on stolen laptop not protected A barrister who failed to place file protection on her work laptop, which was then stolen, has been censured and fined $1,500 by a lawyers standards committee. The barrister, Norfolk, had a separate office on her residential property, which was broken into and her work laptop taken. A complaint was subsequently received by the Lawyers Complaints Service. As part of that complaint, it was advised that: • the laptop contained legal aid files dating back 10 years and the login details to Norfolk’s Resolution Management System account; • Norfolk had no password or encryption set up to prevent unauthorised access to the information stored on her laptop; • no remote wipe software was installed on the laptop; • Norfolk’s IT provider could remotely access the laptop provided it was connected to the internet (which had not been detected); and • before the burglary, Norfolk’s family had access to the laptop and therefore her client files. The committee noted that Norfolk had been personally devastated by the burglary and had taken all responsible steps once the break-in was discovered, including working with the Police and the Ministry of Justice. However, Norfolk was responsible for protecting the confidential information of her clients, the committee said. “In light of the quantity of confidential information stored on [Norfolk]’s laptop, the committee considers that as a minimum, clients would expect that that information would be protected by way of password or some form of encryption.” “Norfolk’s failure to have any password or encryption set up on her laptop (on 88

which 10 years of client files were stored) amounts to a breach of Rules 8 and 11 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Rule 8 provides: “A lawyer has a duty to protect and to hold in strict confidence all information concerning a client, the retainer, and the client’s business and affairs acquired in the course of the professional relationship.” Rule 11 provides: “A lawyer’s practice must be administered in a manner that ensures that the duties to the court and existing, prospective, and former clients are adhered to, and that the reputation of the legal profession is preserved.” The breach of these two rules was unsatisfactory conduct, the committee found. “Clients are entitled to expect that information provided to a lawyer will remain confidential,” the committee said. “Such an expectation is essential to the administration of justice as it encourages clients to disclose all relevant matters to their lawyer and thereby allows that lawyer to give advice on the basis of full information.” As well as imposing the censure and fine, the committee ordered Norfolk to pay $500 costs. ▪

Fined for three rule breaches A lawyer has been fined $3,000 for discussing his client’s case with another client, for failing to treat his client with respect, and failing to respond to his client in a timely manner. When making the three findings of unsatisfactory conduct by the lawyer, the lawyers standards committee said it considered that each warranted a $1,000 fine. The lawyer, Durham, represented Mr Glamorgan in proceedings under the Care of Children Act 2004.

In 2014, an interim parenting order had been made in favour of Mr Glamorgan’s former partner, giving her day-to-day care of the children. Mr Glamorgan had an agreement where he would have the children in his care on alternate weekends. However, he sought to secure more contact with the children. Durham represented Mr Glamorgan at a hearing in 2016 where the judge made an interim parenting order placing the children in week-about care of Mr Glamorgan and his former partner. Following the hearing, Durham raised concerns with Mr Glamorgan about the payment of ongoing fees. Mr Glamorgan’s view was that Durham had agreed to staggered payments. Durham disagreed. In October 2016, Durham contacted Mr Glamorgan threatening District Court proceedings to recover the balance of the outstanding fees. Mr Glamorgan responded, setting out various concerns about Durham’s conduct and about the fees he charged. He requested further information about the basis for the fees but received no response. In September 2017, Durham provided Mr Glamorgan with his timesheets. Durham subsequently instructed a debt recovery agency to pursue the outstanding costs. Mr Glamorgan then made a formal complaint. Mr Glamorgan alleged that Durham failed to respond to his enquiries in a timely manner and in some cases failed to respond at all. Mr Glamorgan said he had left a series of voice mail messages, followed by text messages, but received no response. Mr Glamorgan asked the advice of a neighbour – a family lawyer – who rang Durham and left a message. Mr Glamorgan said that when he did speak to Durham, Durham made it clear that he had not appreciated the call from the neighbour. Mr Glamorgan finally did secure a meeting with Durham on the Saturday before the hearing set down for the following Tuesday.


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In the meantime, Mr Glamorgan said, his affidavit witnesses were “going crazy” not knowing whether they would be required to appear at the hearing.

Failure to respond The standards committee said that Durham’s failure to respond to Mr Glamorgan’s various enquiries in a timely manner breached his professional obligations under rules 3.2 and 7.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC). That constituted unsatisfactory conduct. Mr Glamorgan said that Durham had made an abusive phone call about fees. Durham had sworn profusely and had said to him: “every time you buy a pair of shoes, every time you pay for a kebab, you think of me staring back at you and the money you haven’t paid”. Durham denied making the abusive phone call. The standards committee, however, said it was satisfied, on the balance of probabilities, that Durham had made the call in question. “It reached this conclusion because [Durham] was clearly applying increasing pressure to [Mr Glamorgan] … to make payment of outstanding fees. [Mr Glamorgan] was not acceding to [Durham]’s requests and indeed threatened to terminate the retainer. This appears to have angered [Durham] prompting the abusive phone call,” the committee said. During the latter part of his engagement with Durham, Mr Glamorgan said, Durham started to tell him about another case and advised him that he and his client had been celebrating a win over a beer when his client said his daughter was exhausted after a sleepover with another child whose mother had been vacuuming all evening. Mr Glamorgan said that Durham advised that he had put “two and two together” and asked the client whether his daughter’s friend’s name was Berwickshire (being the name of Mr Glamorgan’s daughter), and

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Durham made derogatory comments about Berwickshire’s mother. Durham denied breaching confidentiality. He said that when he enquired it was confirmed that the friend’s name was Berwickshire. Durham said that was the end of the matter and no further details were exchanged. The standards committee said it shared Mr Glamorgan’s doubt that Durham had ended the conversation with the other client as quickly as he claimed and was satisfied – on the balance of probabilities – that Durham had indeed discussed Mr Glamorgan’s case with another client. “There is no reason to doubt Mr [Glamorgan]’s claim that [Durham] openly stated that he had described Mr Glamorgan’s former partner as ‘a crazy bitch’ when talking to his other client,” the committee said. By disclosing confidential information, Durham had breached rule 8 and following of the RCCC and that was unsatisfactory conduct. As well as the $3,000 fine, the committee ordered Durham to pay $1,000 costs. ▪

Censure and fine for delay in submitting visa application A lawyer has been fined $5,000 and his employee has been censured after they failed to submit their client’s visa application in a timely manner. A lawyers standards committee found unsatisfactory conduct both by the lawyer, Gloucester, and the employee of the lawyer, Lancashire. The complainants were two foreign nationals who arrived in New Zealand in July 2009. They initially held student visas, although they were granted further visas

over time. Finally, on 23 May 2012, both were granted work visas expiring on 23 May 2013. During the currency of those visas, one of the complainants, Mr Northampton, sought to submit a work visa application supported by his employer. However, Immigration New Zealand (INZ) declined that application, and in late November 2013, Gloucester’s firm was consulted for advice concerning Mr Northampton’s immigration options. The committee found that Lancashire did not attend to matters in a timely fashion and failed to respond to INZ’s request for further submissions from her client, while at the same time conveying an impression to the complainants that the work was in hand. The fact that Lancashire did not tell the complainants that judicial review was an option, nor that it was an option to appeal their impending deportation to the

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Immigration and Protection Tribunal “are both significant failures”, the committee said. “Both the opportunity to apply for judicial review and the potential appeal had time limits. Before the complainants were made aware of these options, the time limits had expired.” Lancashire failed to respond to the clients in a timely manner and did not complete the retainer, despite there being ample time to do so. The committee also found a number of Lancashire’s communications with her clients were intentionally misleading. Lancashire also failed to keep her clients informed about progress on the retainer and failed to promptly answer requests for information.

Failure to competently supervise In relation to Gloucester, the committee found that he failed to competently supervise and manage Lancashire. “Gloucester accepts personally and through his counsel that there were occasions where both he and [Lancashire] could and should have responded more quickly to the requests by the complainants for information. Their apology is offered.” Gloucester, through his counsel, “responsibly accepts” that the regulated services were “not completed as quickly as they could have been or indeed at all. In apologising, he is unable to offer any justification for this.” Gloucester also failed to take reasonable steps to ensure his client was kept informed about progress, and in particular that he had instructed Lancashire to defer lodging a section 61 application until he returned from overseas. As well as censuring Lancashire and fining Gloucester $5,000, the committee ordered Gloucester to pay $1,000 costs, and made orders that the facts be published, but not any details that might lead to identification of the parties involved. The complainants also sought compensation. On review, the Legal Complaints Review Officer upheld the committee’s decisions and also ordered Gloucester to pay $2,500 compensation in relation to stress and anguish. ▪ 90

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Will Notices Anderson, Albert Robert Arumugam, Ilancko Barton, David Bruss, Margaret Patricia (formerly Margaret Patricia Herron nee Thompson) Carmichael, William Walton Alexander Collins, William Tou Courtney, Doris Crimp, Mathew Charles De Olivera, Eugene Antonio Eville, Nyria Ann Elizabeth Gray, Nita Tirohia Lee, Lai Lin Magde, Patricia Miriam Mailman, Victor Clifford McAllister, Jason Glenn More, Ian Cedric Sonny Morrison, Shaun Roger Organ, Raewyn Janet Packer, Edwin George Pan, Roger Yao-Shi Rakei, Metuavaine Terematoara Raui, Vaerua Smit, Keith Eric Smith-West, Barbara Alison

Anderson, Albert Robert Would any lawyer holding a will for the abovenamed, late of Christchurch, Retired Farmer, born on 16 March 1928, who died on 10 July 2019, please contact Nathan Lines of Cuningham Taylor Law  njl@ctlaw.co.nz   (03) 379 2605   PO Box 1003, Christchurch 8140

Arumugam, Ilancko Would any lawyer holding a will for the abovenamed, born 28 April 1959 and died 4 June 2019, please contact Simone Seddon of Collins & May Law:  simone@collinsmay.co.nz   04-576-1411 (DDI)   PO Box 30-614, Lower Hutt 5040

Barton, David Would any lawyer holding a will for the abovenamed, late of 87 Oranga Avenue, Onehunga, Auckland, Electrician, born on 30 July 1939, who died on 3 July 2019, please contact Lana Dixon of Jackson Russell:  lana.dixon@jacksonrussell.co.nz   (09) 3006940   PO Box 3451 Auckland 1140


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Bruss, Margaret Patricia (formerly Margaret Patricia Herron nee Thompson) Would any lawyer holding a will for the abovenamed, late of Alexandra, Retired, formerly of Dunedin, born on 30 June 1936 who died on 13 July 2019, please contact Nicole Redgrave of Scholefield Law:  nicole@scholefield.co.nz   (03) 448 7709 Fax: (03) 448 7015

Carmichael, William Walton Alexander Would any lawyer holding a will for the abovenamed, late of Waihi Beach, builder by trade but retired when he died, born at Auckland on 17 September 1922 who died on 27 July 2019, please contact Loren Gerbich from Martelli McKegg:  ldg@martellimckegg.co.nz   (09) 300 7623

Collins, William Tou Would any lawyer holding a Will for the abovenamed, late of Lower Hutt in New Zealand, Personal Trainer, born on 30 June 1976 who died on 20 December 2015, please contact Shannon Marian McEwen:  shannon@collinsmay.co.nz   004 576 1417   PO Box 30 614, Lower Hutt 5040

Courtney, Doris Would any lawyer holding a Will for the abovenamed, formerly of Orewa, born on 17 December 1939, please contact Mrs Courtney’s lawyers, Jacqueline Hardey at Kemps Weir Lawyers:  jacqueline@kempsweir.co.nz   09-525 4591   PO Box 562566 Greenlane, Auckland 1546

Crimp, Mathew Charles Would any lawyer holding a will for the abovenamed, late of 15 Dunton Drive, Tauranga, born 28 July 1985 and died Between 24 June 2019 and 25 June 2019, please contact Jo McLennan of Kaimai Law Bethlehem:

CLASSIFIEDS · WILL NOTICES

Gray, Nita Tirohia Would any lawyer holding a will for the abovenamed, late of Morrinsville (also previously of Hastings), Seasonal Worker born on 26 March 1966, who died on or about 27 June 2019 aged 53 years, please contact Matthew Wright, Rae & Wright Solicitors:   matthew.wright@raewright.co.nz   07 889 5082 or fax 07 889 5083   PO Box 2, Morrinsville 3340

Lee, Lai Lin Would any lawyer holding a will for the above-named, late of Remuera, Auckland, Retired, born on 11 July 1930 who died on 28 June 2019, please contact Helen Edwards of K3 Legal Limited:  helen@k3.co.nz    (09) 366 1366   PO Box 2137, Auckland 1140

Magde, Patricia Miriam Would any lawyer holding a will for the abovenamed, late of Lower Hutt, Retired, born on 10 February 1929 who died on 22 May 2019, please contact Lynda Pointon of Steve Gill Law  lynda@stevegilllaw.com   (04)569 4993   PO Box 30-713, Lower Hutt 5040

Mailman, Victor Clifford Would any lawyer holding a will for the abovenamed, late of 35 Bridgewater Way, Pyes Pa, Tauranga, born 8 November 1932 and who died 25 May 2019, please contact Oakley Moran Solicitors:  smeikle@oakleymoran.co.nz   (04) 472 3055 Fax: (04) 472 6657   PO Box 241 Wellington 6140

McAllister, Jason Glenn Would any lawyer holding a will for the abovenamed, late of 3 Bilkey Avenue, Pukekohe, Digger Driver, born on 15 March 1973, who died on 9 September 2016, 43 years, please contact Lena Wong of Complete Legal Limited solicitors

 jom@klb.co.nz    07 579 3317 (DDI)   PO Box 16010, Tauranga

 lenaw@completelegal.co.nz   (09) 238 7004   PO Box 264, Pukekohe 2340 or DX EP77026

De Olivera, Eugene Antonio

More, Ian Cedric Sonny

Would any lawyer holding a will for the above-named, late of C/-21 Springdale Grove, Palmerston North who died on 27 May 2019, please contact Mark Sinclair, Jacobs Florentine:  mark@jfl.co.nz   06 358 8129, Fax 06 358 2100   PO Box 12-058, Palmerston North

Eville, Nyria Ann Elizabeth Would any lawyer holding a Will for the abovenamed, late of 820 East Coast Road, Oteha, Auckland, Bank Officer, born on 1 August 1937, who died on 24 June 2019, please contact Tina Wilson, Wilson McKay Barristers and Solicitors  tinawilson@wilsonmckay.co.nz   (09) 523 0766  PO Box 28347 Remuera, Auckland 1541 or DX CP33019

Would any lawyer holding a will for the above-named, late of Rotorua, New Zealand who passed away on 19 February 2019, please contact Tegwen Ng of RiceCraig Barristers & Solicitors:  tegwen.ng@RiceCraig.co.nz   (09) 295 1700 Fax 09 295 1701   PO Box 72-440 Papakura 2244

Morrison, Shaun Roger Would any lawyer holding a will for the abovenamed, late of Wellington, who died on 1 July 2019, please contact Roger Simonsen, Jacobs Florentine:  roger@jfl.co.nz   06 358 8129 Fax (06) 358 2100   PO Box 12-058, Palmerston North 4444

Organ, Raewyn Janet Would any lawyer holding a will for the abovenamed, late of Auckland, retired. Born 30 April 1942 and died 31 March 2019, please contact John Broadbent of W.G. Broadbent & Co  broadbent.law@xtra.co.nz    07 862 8659   PO Box 28, Paeroa 3640/DX GA25003

Packer, Edwin George Would any lawyer holding a will for the abovenamed, late of Rangiora, Maintenance Worker, born on 27 July 1952, who died 18 July 2017 in Kaiapoi, please contact Vicky Brown, Helmore Stewart Lawyers:   vicky@helmores-law.co.nz   03 311 8750   PO Box 44, Rangiora 7440

Pan, Roger Yao-Shi Would any lawyer holding a will for the abovenamed, Retired, born on 1 March 1933, who died on 26 June 2019, please contact David Liu, Yu Lawyers Limited:  david_liu@xtra.co.nz    (09) 620 8228   PO Box 96135, Balmoral, Auckland 1342

Rakei, Metuavaine Terematoara Would any lawyer holding a will for the abovenamed, who died at Papakura Auckland, between 25 and 28 June 2019 , aged 58, please contact Maurice J Burney:  maurice@mjblaw.co.nz    (09) 527 1311   PO Box 14-663 DX EP 80506, Panmure 1741

Raui, Vaerua Would any lawyer holding a will for the abovenamed, late of Tokoroa, Scaffolder/Rigger, born 3 March 1967 who died on 29 April 2019, please contact LMC Law:  sam@lmclaw.co.nz    (07) 886 0553   PO Box 250, Tokoroa 3444

Smit, Keith Eric Would any lawyer holding a will for the abovenamed, late of National Park in Owhango, Company Director, born on 10 June 1963 in South Africa who died on 15 May 2019, please contact Leanne Swan of Fencible Law Limited:  leanne@fenciblelaw.co.nz   09 533 3539   PO Box 39 739, Howick, Auckland 2145

Smith-West, Barbara Alison Would any lawyer holding a will for the abovenamed, late of Auckland, Retired, born on 9 July 1933 who died on 3 February 2019, please contact Sarah Wells of Gaze Burt Limited:  sarah.wells@gazeburt.co.nz   09 414 9800   PO Box 301 251, Albany, Auckland 0752

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LEGAL JOBS · CLASSIFIEDS

Waikato Law Practice for Sale A well-established sole-practitioner legal practice is for sale in the Waikato area. This is an opportunity for a lawyer seeking to relocate or a local lawyer seeking to purchase his or her own practice. A practice with major areas being: • Commercial & residential conveyancing • Commercial ventures • Business sales & purchases • Trusts, Wills & Estates Please contact the advertiser, in confidence, at: Confidential Advertiser No. 18-8, advertising@lawsociety.org.nz

Havelock North practice For sale or lease to buy I don’t want to retire but to only undertake some types of work, so I will keep a minor part of my practice and sell the rest on favourable terms. I will remain. It would suit a younger practitioner with a few clients or a small practice wanting to expand quickly or a larger firm wanting a branch office. Very good office/accounting system, wonderful clients, well situated, good prospects for expansion and steady workflow. When I fully retire, there will be no further price to buy the part I retained.

S epte m ber 2 0 1 9 · L AW TA L K 9 3 2

REFEREES, DISPUTES TRIBUNAL Whangarei There will shortly be a process for the appointment of Referees in the Whangarei Region. Members of the public are invited to submit the names of persons who are considered suitable for appointment as Referee. Nominations must be sent in writing or by email. They must contain the name, address, telephone number and email address of both the nominator and the person being nominated. Once a nomination has been received, the person who is nominated will be sent an application pack with details relating to the position and how to apply for it. Nominations are to be made to the Principal Disputes Referee, DX SX11159, Wellington 6011, Ph: (04) 462 6695, or email Kelly-Lea.Brown@justice.govt.nz Nominations must be received by this office no later than 12 noon on Wednesday 11 September 2019.

Contact David MacCallum — 021 877 221

2 x roles – Wellington Experienced Criminal Lawyer/Senior Associate Luke Cunningham Clere is a medium sized law firm based in Wellington’s CBD. We currently have two vacancies for lawyers with 5+ years’ experience: Experienced Criminal Lawyer – as the Wellington Crown Solicitor’s office we undertake criminal prosecutions for the Crown. We have a vacancy for an experienced criminal lawyer who can immediately pick up a trial workload. Senior Associate – we have expanding regulatory enforcement, civil litigation, public law, and professional disciplinary practices acting for a wide range of Crown and other entities. We have an opportunity across these practice areas for a person looking to step into a Senior Associate role who is keen to develop their advocacy skills and take an active role in managing key clients. Previous criminal experience is not a prerequisite for this role. Both roles require strong written and oral communication skills and sound decision making on legal and procedural matters. You will be conscientious and resilient, be able to work with minimal supervision and able to manage your workload effectively.

Applications will be progressed as received. E-mail your application (CV, cover letter, academic transcript) to rgp@lcc.co.nz. No agencies please.

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Solicitor, Health Law/Litigation 1 — 4 years’ PQE Claro is looking for a rising star to join our fantastic team. The ideal applicant will: • Be Christchurch or Wellington based (but exceptional candidates in Auckland may be considered); • Have some litigation experience and/or demonstrated interest in litigation; • Have some health law experience and/or demonstrated interest in the health sector or medico-legal matters; • Be able to demonstrate excellent verbal and written communication skills; • Have experience working in a medium to large law firm. In return we offer: • Opportunity to work alongside senior experts in health law across our three offices; • Exposure to exciting, interesting and varied case work; • Market salary. For more information on the work we do, go to: www.clarolaw.co.nz Applicants should provide CV, cover letter and academic transcript by 4 October 2019 to trish.cross@clarolaw.co.nz


CPD Calendar PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

Hon Justice Miller Hon Justice Jagose Bronwyn McKinlay Laura O’Gorman

Electronic casebooks are becoming the desired medium in document-intensive trials and on all civil appeals in the Senior Courts. Used well, consistently with the updated Protocol, they are tools for persuasive advocacy. The updated Senior Courts Civil Electronic Document Protocol came into effect in March this year and is intended to encourage and facilitate the use of electronic casebooks for civil cases in the High Court, Court of Appeal and Supreme Court. This seminar will help you to use and construct electronic casebooks effectively, and will provide the perspectives of the Judiciary and senior lawyers.

Auckland

29 Oct

Wellington

30 Oct

Roderick Joyce QSO QC Sandra Grant Nikki Pender Paul Radich QC

This workshop is an excellent opportunity for recently admitted practitioners to develop practical skills in civil litigation in an intense small-group workshop. You will learn how to handle a single file from beginning to end, be able to identify and understand the various steps in the process, develop the practical skills you need to handle this and a range of other litigation files, competently and confidently.

Wellington

CIVIL LITIGATION AND EMPLOYMENT CIVIL ELECTRONIC CASEBOOKS – SENIOR COURTS

2 CPD hours 2 CPD hours

INTRODUCTION TO CIVIL LITIGATION SKILLS

9 CPD hours

Christchurch

31 Oct

Live Web Stream

30 Oct

21-22 Oct

Auckland

4-5 Nov

Note: Douglas Wilson Scholarship applications close 23 Sept.

COMPANY, COMMERCIAL AND TAX TAX CONFERENCE – THE ROAD AHEAD

Chair: Fred Ward

The annual NZLS CLE Tax Conference focuses on the most relevant tax developments and issues for lawyers, whether you are a tax specialist or commercial or private client advisor, and is designed to ensure you are kept abreast of the latest developments that may affect your clients.

Auckland

12 Sep

Live Web Stream

12 Sep

Andrew Barker QC Professor Geoff McLay

This seminar will consider what is happening in the world of torts including the most important recent cases and a brief practical review of the theory that is driving them. Note: please see NZLS CLE website for updated brochure.

Dunedin

17 Sep

Christchurch

18 Sep

6 CPD hours TORTS UPDATE

4 CPD hours 4 CPD hours DIRECTORS – BREACH OF DUTIES

19 Sep

Auckland

23 Sep

Webinar

19 Sep

Brent Norling Michael Stiassny

How can directors balance their core role of adding value to shareholders’ investments and protecting their position given their personal liability, civil and criminal, they can face? This seminar will examine the issues from litigation funding, restructuring, corporate directorship, and legal perspectives. It will adopt a practical approach that will help you provide robust advice to your clients when dealing with directors breach of duties’ issues whatever side you are representing.

Auckland

24 Sep

Live Web Stream

24 Sep

Chair: Jenny Cooper QC

Despite the steady increase in commercial regulation over recent years, case law remains a vibrant and powerful source of legal evolution in this area. This outstanding programme highlights key developments that all commercial law practitioners need to be aware of, whether their practice is transaction or litigation focused. With dynamic speakers and topical subjects including contract law, directors’ duties, negligence, confidentiality issues and litigation funding, this promises to be a day of stimulating presentations and challenging discussion.

Auckland

26 Nov

Live Web Stream

26 Nov

Duty lawyers are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. This workshop is made up of several parts.

Various

Aug-Oct

Auckland

2-3 Sep

2 CPD hours

COMMERCIAL CASE LAW INTENSIVE

Wellington

6 CPD hours

CRIMINAL DUTY LAWYER TRAINING PROGRAMME

Local Presenters

11* CPD hours INTRODUCTION TO CRIMINAL LAW PRACTICE

13 CPD hours

*CPD hours may vary, see website Brett Crowley

A practical two-day workshop covering the fundamentals of being an effective criminal lawyer. This workshop will benefit all practitioners wanting to be appointed to level one of the criminal legal aid list, and those recently appointed to level one. Note: Douglas Wilson Scholarship applications closed

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz


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

PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

Jane Goodwin Nick Laing

Advance care planning is a process of planning and discussion for future health care. This webinar will introduce what advance care planning is to practitioners, cover the legal framework for this, including the use of advance directives and the interplay with living wills and enduring powers of attorney, the implementation of these plans and some key tips and tricks. It will draw on a number of practical and case law examples throughout the presentation.

Webinar

10 Sep

Stephanie Marsden Dr Rhonda Powell

Family trusts can be an effective tool for protecting assets but what happens when the relationship breaks down and a couple separates? This presentation will examine key case law developments concerning claims against trusts in circumstances where the relationship and family unit has broken down. It will consider strategies to protect trusts already in existence, as well as trusts yet to be formed, and briefly discuss the latest law reform proposals in relation to relationship property and trusts.

Auckland

25 Sep

Live Web Stream

25 Sep

Jo Leech Professor Bruce Smyth

“High-conflict” divorce cases – especially those involving entrenched interparental hatred – have been consistently identified as difficult, complex, time consuming, and costly. They place great strain on individuals (including children), practitioners and courts, as well as on the family law system more generally. In this session the presenters will: explore “interparental hatred” as a key relationship dynamic driving some high-conflict cases; discuss strategies for lawyers working with parents in the grips of entrenched hatred; and offer strategies for working with cases where children may be resisting or refusing contact as a consequence of a parent spreading the culture of hatred on to children.

Wellington

6 Nov

We extend to you the warmest of invitations to register for the Family Law Conference which has the theme: The Winds of Change: Mā te hau tōrua. This biennial event has become a sell-out, “must-go” occasion, noted as much for its enthusiastic collegiality as for the high quality of the business sessions. Both practical and provocative, the programme will provide practitioners at all levels of experience with two days of stimulating engagement on topics of essential importance and interest. See you in Wellington!

Wellington

7-8 Nov

Dahl Calder John Harkness

This seminar will include: an update on the key themes arising from recent cases; issues for bodies corporate arising from the use of units for short-stay accommodation and the extent to which bodies corporate can restrict or control the use of units for short-stay accommodation; issues around good governance, decision-making, information sharing and enforcement of body corporate rules; and, practical tips for bodies corporate, chairpersons, committees, body corporate managers and their lawyers.

Auckland

Kimberly Lawrence Greg Kelly

The landscape in relation to family trusts has changed significantly and often it will be in your clients’ best interests to review their current arrangements. The presenters will take a practical approach in considering: ‘winding up’ a trust or bringing it to an end; resettling or modifying a trust; and the integration of a trust with longer term life and succession planning arrangements.

Webinar

Chair: Andrew Skelton

It is a challenging time for the construction industry. This intensive has practical guidance and insights to help you provide the best advice for your constuctions and infracture clients. Topics covered include: procurement models; effective use of dispute resolution, and case law developments.

Christchurch

23 Oct

Auckland

24 Oct

Live Web Stream

24 Oct

FAMILY ADVANCE CARE PLANNING – ISSUES FOR LAWYERS

1.5 CPD hours

AVOIDING CLAIMS ON A TRUST WHEN A COUPLE SEPARATES

2 CPD hours

THE IMPACT OF ENTRENCHED INTERPARAEMTAL HATRED ON CHILDREN

3.5 CPD hours

This is a Pre-Conference Workshop to the Family Law Conference – additional charge applies FAMILY LAW CONFERENCE

Chair: Rachael Dewar

13 CPD hours

PROPERTY AND TRUSTS UNIT TITLES UPDATE

2 CPD hours

WINDING UP A TRUST AND OTHER ISSUES

1.5 CPD hours

CONSTRUCTION LAW – ISSUES AND OPPORTUNITIES

6 CPD hours

To contact us | Visit: www.lawyerseducation.co.nz Email: cle@lawyerseducation.co.nz | Phone: CLE information on 0800 333 111

9 Sep

Live Web Stream

11 Sep


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

OTHER PRACTICE AREAS ENVIROMENTAL LAW INTENSIVE

Chair: Bronwyn Carruthers

An update on key cases and developments in the environmental law field including: resource management system overview and update; the RMA and interface with other legislation; environmental law and our constitution; Marine and Coastal Area (Takutai Moana) Act proceedings; scientific uncertainty and environmental decision making; and, moving towards a transformative recognition of tikanga Māori in environmental jurisprudence.

Christchurch

18 Nov

Auckland

19 Nov

Live Web Stream

19 Nov

David Howman is the former Director-General of the World Anti-Doping Agency and the current Chair of the Athletics Integrity Unit, an international body charged with responsibility for addressing issues of bribery, corruption, betting and the manipulation of competition results in athletics. David will provide his personal insights from the perspectives of a top sports lawyer and a senior executive in what will be a compelling and interactive presentation.

Christchurch

3 Sep

Wellington

4 Sep

Auckland

5 Sep

Director: Warwick Deuchrass

All lawyers wishing to practise on their own account whether alone, in partnership, in an incorporated practice or as a barrister, will be required to complete this course.

Auckland

21-23 Nov

Philip Strang

How do you keep a trust account in good order? This practical training is for new trust accounting staff, legal executives, legal secretaries and office managers.

Auckland (full)

18 Sep

Hamilton

19 Sep

Under the Financial Assurance Scheme all practices operating a trust account must appoint a qualified trust account supervisor. A candidate must be a lawyer and must pass the NZLS trust account supervisor assessments, which take place during a full day programme. The training consists of self-study learning material (approx. 40-50 hours) to help you prepare for the assessments.

Wellington

24 Sep

Virginia Goldblatt David Patten Denise Evans

Building on the prior workshop Mediation Principles and Process (previously Mediation for Lawyers Part A) you will learn and practise essential mediation skills in order to prepare to become a mediator. Will offer area-specific coverage as well as generic skills.

Auckland

18-19 Oct

Jane Chart

Negotiation is a vital skill for every lawyer. Few aspects of representation can have a greater impact on whether the best results are achieved for your client. The District Court Rules have underscored the significance of negotiation for effective practice. Improved negotiation skills can help avoid unnecessary litigation, and produce better settlements more efficiently. Skill in negotiation also increases effectiveness in client interviewing, as well as in representing clients in mediation and judicial settlement conferences.

Auckland

30-31 Oct

It may not be necessary for you as a lawyer to have the financial insight expected of an accountant, but you should know how financial statements are put together and how to: interpret the figures; use the figures in financial statements to assess the “health” of a business; ask the right questions and identify warning signs; discuss financial statements intelligently with a client; and know when to call in specialist assistance and be able to communicate effectively with them. This workshop will make you more effective and confident when providing guidance to your clients on financial matters.

Auckland

7 CPD hours

PRACTICE AND PROFESSIONAL SKILLS ANTI-CORRUPTION AND SPORTS LAW

David Howman CNZM

1.5 CPD hours

STEPPING UP – FOUNDATION FOR PRACTISING ON OWN ACCOUNT

18.5 CPD hours TRUST ACCOUNT ADMINISTRATORS

4 CPD hours TRUST ACCOUNT SUPERVISOR TRAINING PROGRAMME

Philip Strang

7.5 CPD hours

MEDIATION SKILLS AND STRATEGIES – CIVIL/ COMMERCIAL, FAMILY, EDUCATION DISPUTES

Auckland

5 Nov

Christchurch

12 Nov

13 CPD hours LAWYER AS NEGOTIATOR

11.5 CPD hours

READING ACCOUNTS AND BALANCE SHEETS

7.5 CPD hours

Lloyd Austin

To contact us | Visit: www.lawyerseducation.co.nz Email: cle@lawyerseducation.co.nz | Phone: CLE information on 0800 333 111

Welington

13-14 Nov

Christchurch

25-26 Nov

4-5 Nov

Hamilton

6-7 Nov

Christchurch

11-12 Nov

Wellington

13-14 Nov


LIFESTYLE

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2 Tranquillity was achieved by this

9 Show concerned with meat (6) 10 The inter-24-ary breath of Ra? (5,4)

11 Mildly rebuke Pharaoh twice (3-3)

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27 Restaurant with separate area

21 Is p-politician? (3)

for interrogation? (9)

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28 Vehicle for an angry rebuke? (6)

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approved by law (9) 13 Choose 25, say, for a meal (6)

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24s (6) 4 Novice bishop with a cyst getting 5 - (7)

Solution to August 2019 crossword

21. Betty, 22. Diatribes, 23. Inane,

for the muse of those who study

the metropolis in a way not

19 Clay comes from a 24, given

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11 (6) 3 A 24 drops us and turns back sloth

skilled at the keyboard (9)

areas out east from a 24 (9) 7 A 24's docked, and I hesitate to get Heavy Metal (9) 8 A 24 and most of a surface feature ruled by wealth (9) 14 Unpredictable 24 curtailed, to ail, ailing (9) 15 Don's secret message: "Space suits must be worn" (5,4) 16 The rock convulsion is speculative (9) 17 3 drops princess for Northern woman (3)

30 Buzz once heard in 2 11 (6)

18 Half 24 mounting a peak (3)

31 Clearly from Ballantrae, natally

22 Foreign milk sheep returning,

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originally related to a 24 (7)

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24 Body found in crate by junction (6)

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porridge (6) 26 Ms Aleh has a small vessel once related to a 24 (6)


L AW TA L K 9 3 2 · S epte m ber 2 0 1 9

LIFESTYLE

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Rumpole of the Bailey Where defiance is a virtue BY CRAIG STEPHEN Never a prosecutor Rumpole of the Bailey was created by British writer (and former barrister and QC) John Mortimer as a defiant criminal lawyer. He first made a television appearance in the week before Christmas 1975 but wouldn’t become a familiar face on British and New Zealand screens until the 1980s. The initial sighting was part of the BBC’s much-lauded Play for Today series but it was the Beeb’s rival ITV that picked up the rights to a series which began three years later with Australian actor Leo McKern as the heavyweight (in more ways than one) English barrister. The first episode of the Rumpole of the Bailey series aired in 1978 on Thames Television, the ITV regional subsidiary for London, but which was transmitted in the Scottish Highlands, Derry, and down to the Channel Islands. There were six episodes in the first series and the same number in the second series that aired in 1979 with an extended one-off special just before New Year 1980. Thereafter it became a semi-regular project re-appearing in 1983 with six new episodes and again in 1987 with six more episodes, a further half dozen shows in 1988 and then a break till 1991 and 1992 with 12 episodes over those sixth and seventh seasons. Every one of the 44 episodes in their various forms from 1975 onwards began with ‘Rumpole’, so the episodes would be called Rumpole and the Married Lady, Rumpole and the Fascist Beast and Rumpole and the Quacks, and so on.

Horace Rumpole’s forte was in defending; he never prosecuted. His core values were the presumption of innocence. He would never plead guilty on behalf of his clients, even if the defendant has confessed because “there is no piece of evidence more unreliable than a confession”. Asked why he refused to prosecute, he replied that he didn’t believe prison was a suitable punishment: “I’m not going to use my skills, such as they are, to force some poor devil into a condemned Victorian slum where he can be banged up with a couple of psychopaths and his own chamber pot.” The Rumpole stories, although veering towards the droll, also contained very pointed messages about access to justice. There is little of the sentimentality or quaintness that characterised that other British legal series, The Irish R.M. Creator John Mortimer was a self-proclaimed anti-Establishment figure, famously defending the underground magazine Oz against obscenity charges in 1971. Another high profile case he was involved in was the apparently hopeless case of the punk band the Sex Pistols’ use of a word regarded as offensive for the title of their 1977 album, Never Mind the Bollocks. Mortimer won the case by proving the word had been used in common literature as far back as Chaucer.

Class prejudice Mortimer, who died in 2009 aged 85, wrote numerous other novels and plays, some of which became popular movies, such as Tea with Mussolini starring Dame Judi Dench and The Ebony Tower with Laurence Olivier, but it was Rumpole that extended his imagination the most. He wrote every episode of the television series, and their subsequent novelisations. Hypocrisy, class and racial prejudice, the irritating self-righteousness of the powerful, the holes in the legal system, the nature of justice – all were pierced by Mortimer’s wit. Surprisingly, the Americans liked it, or at least those who were able to view it. Rumpole’s unhealthy personal habits, disdain for societal expectations, and sharp tongue earned him few marks among his peers, who largely regarded him

as an embarrassment. Although ostensibly mysteries, the cases he undertakes are unlike the standard whodunnit – in some cases, Rumpole’s task is merely to prove how his client didn’t commit the crime. In one episode, Rumpole à la carte, Rumpole agrees to defend an elitist restaurateur whom he takes a dislike to when a live mouse jumps out from one of his gourmet meals, while in Rumpole and the Alternative Society, the barrister defends a hippie schoolteacher on a drugs charge and finds himself attracted to her lifestyle. In the final episode, Rumpole on Trial, the barrister is charged with contempt of court and faces disbarment. Rumpole was also a popular radio series on the BBC with an extensive series broadcast in 1980 – starring Maurice Denham as Rumpole – and several mini series from 2003, the year after McKern died, to this year with Timothy West, Benedict Cumberbatch and Julian Rhind-Tutt all taking on the larger-than-life role. And in April this year The Times announced that Rumpole would return in a ‘modern’ TV series. The newspaper reported that Mortimer’s works are to be “reimagined” in the new TV series, with his family writing the scripts – actress Emily Mortimer is due to produce the show and write it with her younger sister and fellow actress Rosie. The series has been released on DVD. ▪ 97


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TAIL END

New Zealand’s oldest law firms A 150th birthday is an important milestone, and the New Zealand Law Society is acknowledging the moment in a fitting manner when it hits 150 on 3 September. It’s a long-lived institution, but within the practice of law there are some which are older still. In fact, there are 24 law firms which have been in continuous existence for over 150 years. Our criteria for inclusion in the following list is that a firm must always have been in existence. Names change, partners and directors come and go, but there must be a continuing entity. The oldest firm, Treadwells, began before the Treaty of Waitangi on 3 January 1840 when Richard Davies Hanson stepped ashore as the first qualified lawyer. Just before he left New Zealand in August 1846 for Australia, Hanson joined Robert Hart in legal practice.

The second-longest established firm, Bell Gully, has a slightly shaky grip on its longevity status. The founder, Sir Frederick Whitaker, arrived late in 1840 and started practice in Kororareka (now Russell) before moving to Auckland in 1841. He was appointed a judge of the County Court until 1844, but there is evidence that he continued to work as a barrister. From December 1846 to early 1848, Whitaker took his family to England. Julie Millen who is the author of the firm’s history, The Story of Bell Gully Buddle Weir 1840 – 1990, has said it is believed his practice was continued while

Notable Quotes ❝ The lessons that Calvin taught me were not just about the law. They were about not giving up.❞ — Ben Cohen, the lawyer who filed a petition in the case Ramos v Louisiana which the US Supreme Court has agreed to hear. The instigator was former prison inmate Calvin Duncan who developed formidable legal skills and has spent decades pushing for a declaration that a Louisiana law allowing non-unanimous juries in criminal cases is unconstitutional. ❝ The innocuously named Horse & Pony magazine has become, somewhat surprisingly, embroiled in defamation proceedings.❞ — Justice Hinton begins her judgment in Cato v Manaia Media Ltd [2019] NZHC 440. ❝ I will miss greatly the morning coffees and the sound of Penny’s cheerful humming and singing as she plows her way through yet another draft judgment or transcript. I did realise early on, however, that when she hums How Great Thou Art, she’s not thinking of me.❞ — Retiring High Court Judge Kit Toogood pays tribute to his Associate, Penny Murray. 98

❝ He was overjoyed. He broke down and cried.❞ — Ugandan lawyer Jordan Kinyera describes the reaction of his 82-year-old father on hearing that his son had won a High Court battle for return of the familiy’s land, lost in a dispute 23 years earlier. Mr Kinyera studied to become a lawyer to contest the case and to help others in similar situations. ❝ Equity should no longer be seen as quintessentially, exclusively English. It must reflect the shared values of the whole community, including some shared concepts of tikanga Māori. It does not seem at all unikely that both whanaungatanga and kaitiakitanga will influence equity, gradually and more generally, in my second decade as a Judge, and thereafter.❞ — Court of Appeal President Stephen Kós delivers the keynote address to the Law Society Trusts Conference, June 2019. ❝ If you have a real problem, hire a lawyer and take me to court.❞ — Kieran Withers, who claimed to be a New Zealand lawyer and persuaded people to pay or lend him money, responds to a taxi driver from whom he is alleged to have extracted over $10,000 and who took his concerns to the media.


L AW TA L K 9 3 2 · S epte m ber 2 0 1 9

TA I L E N D

The 50 oldest law firms in New Zealand Beginning

Age in years

Current name adopted

Treadwells

1840

179

2006

Bell Gully

1840

179

1984

Brandons

1841

178

1991

Jackson Russell

1844

175

1864

Brookfields

1856

163

1991

Duncan Cotterill

1857

162

1879

Glasgow Harley

1858

161

1997

Gallaway Cook Allan

1859

160

2001

Wynn Williams

1860

159

1956

Izard Weston

1861

158

1924

Anderson Lloyd

1862

157

1987

Russell McVeagh

1863

156

1904

Name

he was overseas. We’ve included them on that understanding. Things seriously got going in 1861 when Whitaker joined Thomas Russell in partnership. Our list also shows the year a firm adopted its current name (if known). Jackson Russell has used the same name for 155 years. Exact commencement dates are elusive and the age in years can best be interpreted by adding “th” – so this is Treadwell’s 179 th year, etc. The list has been compiled from many sources, but errors and omissions are gratefully accepted as usual. ▪

❝ Contempt of court undermines the integrity of the court system. The courts need powers to respond effectively to threats to the effective administration of justice.❞ — Justice Minister Andrew Little welcomes the passage of the third reading of the Contempt of Court Bill. ❝ According to our estimates, the volume of work in legal services would be down £3.5 billion – nearly 10% lower than under an orderly Brexit.❞ — The President of the Law Society of England and Wales, Simon Davis, starts to get very worried about the prospect of a “no deal” Brexit. ❝ Repeatedly I’ve chucked ethics out the window, I’ve chucked legal professional privilege out the window, I’ve chucked my career out the window if any of this ever came out.❞ — “Lawyer X”, Nicola Gobbo, in a previously secret recording by police released by the Victorian Royal Commission looking at the way police used her to inform on her clients.

Joynt Andrews

1863

156

1892

Pitt & Moore

1864

155

1879

Hardy-Jones Clark

1865

154

2007

Anthony Harper

1865

154

1987

Hesketh Henry

1865

154

1986

Hannan & Seddon

1867

152

1920

Downie Stewart

1867

152

1986

Gresson Dorman & Co

1867

152

Whitcombe Guinness & Kitchingham

1867

152

Lane Neave

1868

151

Treadwell Gordon

1869

150

Miller Poulgrain

1869

150

1921

Langley Twigg

1872

147

1976

Meares Williams

1873

146

1899

WCM Legal

1874

145

2006

Carins Slane

1874

145

1988

Chapman Tripp

1875

144

Sainsbury Logan & Williams

1875

144

1900

Gawith Burridge

1875

144

1998

Harkness Henry

1875

144

1945

1909

Kensington Swan

1878

141

Nolans

1879

140

Gascoigne Wicks

1879

140

1945

Arthur Watson Savage

1880

139

1984

Corcoran French

1881

138

1988

Jack Riddet Tripe

1881

138

Weston Ward & Lascelles

1883

136

RSM Law

1883

136

Helmore Ayers

1883

136

Helmore Stewart

1884

135

Rhodes & Co

1884

135

Innes Dean – Tararua Law

1884

135

Halliwells

1886

133

Ross Dowling Marquet Griffin

1887

132

Simpson Grierson

1887

132

Johnston Prichard Fee

1887

132

Harmans Lawyers

1888

131

Papprills

1894

125

1884 1886

1948

99


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