LawNews- Issue 2

NEWS Feb 10, 2023 Issue 2

Inside ■ FLOODING

Key issues for your clients P07

■ TECHNOLOGY

What ChatGPT means for lawyers P08

Do we need adls.org.nz

JUDGES?

Contents 03-06 JUDGES IMPARTIALITY ACTIVISM

Are judges essential to the rule of law? asks British law professor Leslie Thomas KC

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

Editor: Jenni McManus Publisher: ADLS

07 EMERGENCY DISASTER PROPERTY

Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz

Key issues for clients facing flooding and storm damage

Reweti Kohere 022 882 2499 Reweti.Kohere@adls.org.nz

09 E-SCOOTERS DISABILITY LITIGATION

Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

Bid to ban e-scooters from footpaths fails in High Court

All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz

10-11 FEATURED CPD

Photo: sorbetto / Getty Images

12 CPD IN BRIEF

Nominations for ADLS President Three nominations have been received for President of the ADLS Council.

They are: Terence John Darby Anthony Robert Herring Angela Mary Elizabeth Parlane A candidate booklet and voting instructions have been emailed to ADLS members. Voting closes at 4pm on Wednesday 1 March.

The AGM will be held on Thursday 2 March.

LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year.

To subscribe, please email reception@adls.org.nz. ©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members.

Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Cover: Garen Meguerian / Getty Images

02

Feb 10, 2023 Issue 2

LEGAL PROFESSION

Do we need judges?

Judges don’t have any special ability to distinguish truth from falsehood. But they often think they do Impartial body

Professor Leslie Thomas KC Let me start with three quotes.

First: “There can be no free society without law administered through an independent judiciary. If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny.” Justice Felix Frankfurter in his concurring judgment in United States v United Mine Workers.

This quote was in the context of a case where the Supreme Court upheld a restraining order that prohibited mine workers from striking.

Second: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” Anatole France Nobel prize-winning French writer Finally in the trilogy, a quote from Nelson Mandela’s speech at his trial: “Why is it that in this courtroom I face a white magistrate, am confronted by a white prosecutor and escorted into the dock by a white orderly? Can anyone honestly and seriously suggest that in this type of atmosphere the scales of justice are evenly balanced?... I detest most violently the set-up that surrounds me here. It makes me feel that I am a black man in a white man’s court.”

In my last lecture, I asked whether we need juries. In this lecture, I’m looking at a related question: do we need judges?

In many ways this is a much more fundamental question.

Plenty of legal systems have no juries but every legal system in the world has judges. An independent judiciary is usually seen as a sine qua non (an indispensable and essential condition) of liberal democracy. My own profession, the practice of law, would be impossible without judges. So, we are required to examine the fundamentals of the legal system.

To take a real example that occurred in 2018, we might ask how a judge whose family members have financial interests in the fracking industry can send anti-fracking protestors to prison

Let’s start by articulating a few arguments in favour of judges.

If we were looking to explain why we need judges, what would we say?

First, we would say, judges are essential to the rule of law. In modern society, we need to have legal certainty. We need a body of law that is administered consistently and impartially. We need to know, for instance, what conduct is and is not criminal, so that we can adapt our behaviour accordingly. And we need to know if we are accused of a crime, we will have a fair trial and the law will be applied impartially to us.

To make financial decisions, we need to know our contracts will be enforced and our property rights protected. And if our rights are violated, we need to know we can seek justice in court.

We need to know that the law will be applied consistently and that the application of the law won’t be influenced by political or personal favour. To achieve this, we need an impartial body of decision-makers who are not beholden to the government and who apply a consistent body of rules, guided by precedent.

Second, we would say, judges provide an important check on the power of the executive and a safeguard for the rights of minorities. We might say this is particularly important in a country such as the UK, where a government with a solid majority in the House of Commons has very few other restraints on its power.

On the other hand, what would we say if we wanted to criticise the institution of the judiciary?

First, we’d say the judiciary is unrepresentative of society and is disproportionately drawn from privileged groups. Judges from privileged backgrounds frequently sit in judgment on marginalised people whose lives and experiences they do not understand at all.

Continued on page 04 03

Second, we’d say judges aren’t democratically accountable and that vesting so much power in the judiciary is undemocratic.

Third, we’d say judges are trained in law and an education in law doesn’t necessarily equip them to make all of the decisions our legal system calls upon them to make. We might sum up by asking why we entrust judges with so much power over people’s lives.

So, let’s dive into these issues in more detail. First, we’re going to ask what judges do and how well they do it. Second, we’ll look at how judges are appointed, to whom they are accountable and whether they are representative of society. And third, we’re going to ask whether we need judges, look at what the alternatives might be and ask what role judges might play in a fairer society.

Well-equipped?

In the common law world, professional judges are drawn from the ranks of practising lawyers. Their professional experience, therefore, is twofold. They are experts in law and in advocacy, the art of persuasion.

However, this expertise doesn’t necessarily mean they are qualified to perform all the tasks that our legal system requires them to perform. Let’s look at a few of these.

First, a major role of judges is to make findings of fact. Since most judicial proceedings in England and Wales do not have a jury, in most cases the judge is the trier of fact. They need to assess the credibility of witnesses, decide between competing versions of events and evaluate expert evidence.

Judges, with their training in law, are not particularly wellequipped to do this. They often rely on fallacious assumptions when assessing the credibility of witnesses. Many of these assumptions were instilled in them during their training as trial advocates, when they learned how to cross-examine effectively.

For example, lawyers and judges often believe an internally inconsistent account is more likely to be a fabrication. Lawyers will often elicit inconsistencies in a witness’s story in an attempt to discredit them. But we know from decades of psychological research that human memory is often poor, that truthful accounts are just as inconsistent as false ones and that mental health conditions such as PTSD and depression can impair a person’s memory and recall.

Similarly, in the past, it was often thought a trial judge’s ability to see and hear a witness giving evidence and observe their demeanour was important to assessing credibility. But we now know that reliance on demeanour can be very misleading because a person’s demeanour can be affected by cultural 04

When judges make decisions which are politically controversial and which thwart the will of the executive, it’s often decried as ‘judicial activism’

background and by conditions such as autism and PTSD, among other factors.

Legal education doesn’t include any training in psychology or mental health. In short, judges don’t have any special ability to distinguish truth from falsehood. But they often think they do.

Similarly, judges can and do misunderstand scientific issues and sometimes this has dire consequences.

An infamous example occurred when the paediatrician Sir Roy Meadows testified at the 1999 murder trial of Sally Clark and said the probability of two children dying of Sudden Infant Death Syndrome (SIDS) in the same family was one in 73 million. This statistic was fallacious in multiple respects.

Meadows’ statistic was based on the false assumption that the probability of dying of SIDS was uncorrelated between children in the same family, which it was not. It also fell into a statistical fallacy known as the “prosecutor’s fallacy”. As Dr Ben Goldacre explained: “Two babies in one family have died. This in itself is very rare.

Once this rare event has occurred, the jury needs to weigh up two competing explanations: double SIDS or double murder. Under normal circumstances - before any babies have died - double SIDS is very unlikely, and so is double murder. But now the rare event of two babies dying in one family has occurred, the two explanations are suddenly both very likely.

“If we really wanted to play statistics, we would need to know which is relatively more rare, double SIDS or double murder.”

Goldacre goes on to point out that the Criminal Division of the Court of Appeal also misunderstood the significance of the figures. He said, “Not only was this crucial nuance missed at the time, it was also clearly missed in the appeal. They suggested

Continued on page 05

Photo: Oleksandr Berezko / EyeEm / Getty Images

Continued from page 03

Feb 10, 2023 Issue 2

Moral condemnation

Continued from page 04

that instead of “one in 73,000,000” Meadows should have said ‘very rare’.”

Another factor that can affect fact-finding is that, like everyone, judges have biases. These biases can affect how they view a witness’s evidence or how they view the merits of a case.

My colleague Keir Monteith KC recently co-authored a report with academics at the University of Manchester, Racial Bias and the Bench, which surveyed a large group of legal professionals about their experiences of judicial racial bias.

Many respondents gave accounts of bias affecting judicial decision-making. For instance, one respondent said: “I represented a client who was a black British youth of no previous convictions. The trial was in the Magistrates’ Court.

The bench were two old posh white ladies. I knew from the way they looked at him, and looked at the case, as though it was all an unpleasant smell, that they would convict him from the start. We ran a good defence, providing as much information and evidence as we could, the prosecution barely challenged our position, and the bench convicted on obscure reasoning. It seemed to me to be a decision infused with racial bias.”

Another said: “It is difficult to set out specific instances as they are quite common: a significant minority of tribunal judges treat the evidence of appellants and witnesses from other cultures, countries and backgrounds with scepticism.”

A related problem is an unjustified judicial faith in the police. For example, one respondent said: “While practising in the Magistrates Court, I never once saw a tribunal seriously entertaining the idea that the police might have been acting in a racist manner, or even that racialised defendants had perceived the police to have been acting in a racist way towards them (which is often a critical part of the defendant’s case).”

These examples accord with my own experience as a lawyer.

Race can often have a big impact on how judges treat a client or a witness, and how seriously they take the client’s or witness’s evidence.

So can other factors such as the client’s class, their accent and how they dress and behave in court. Like all humans, judges take cognitive shortcuts when making decisions and often those cognitive shortcuts reflect race, class and cultural bias.

So, judges are not necessarily well-equipped to make findings of fact. They aren’t experts and they often base their decisions on false assumptions.

Most people like judicial activism when it accords with their political views and dislike it when it doesn’t

Another major role of judges in our system is to make moral judgments. The most obvious example is when a judge passes sentence for a criminal offence.

In the English legal system, although considerations of prevention and deterrence are taken into account, the core of sentencing is punitive. Our sentencing policy owes far more to the concept of moral desert than it does to utilitarian ethics.

Judges take into account the perceived culpability of the defendant, together with any factors that aggravate or mitigate their moral wrongdoing. Even if the defendant poses no risk to the public and no risk of re-offending, this doesn’t preclude their being imprisoned if the judge considers their crime sufficiently serious.

And sometimes judges use moralising language from the bench, condemning a defendant using terms such as “wicked” and “depraved”.

In effect, the judge is empowered to make moral judgments on behalf of society, to decide what another human being has done wrong and what they deserve. While the discretion of judges has been fettered in recent years by guidelines which seek to achieve some consistency in sentencing, these guidelines typically reinforce an approach in which culpability is at the heart of sentencing.

We might well ask why we entrust judges with this power.

After all, an education in law doesn’t imbue a person with the wisdom of Solomon. And judges are disproportionately drawn from privileged backgrounds and are much less likely to have experienced hardship than are the defendants on whom they sit in judgment.

From a moral perspective, for example, we might ask what right a judge earning a six-figure salary has to sit in judgment on a homeless person for stealing bread. Or, to take a real example that occurred in 2018, we might ask how a judge whose family members have financial interests in the fracking industry can send anti-fracking protestors to prison.

And again, we know that bias plays a role. In previous lectures I’ve talked about the Lammy Review’s finding that there were large race disparities in sentencing, especially for drugs offences.

The experiences of the respondents in Keir Monteith’s survey were consistent with this.

So, we might well ask why we entrust judges with the power to issue collective moral condemnations from the bench on behalf of society.

Continued on page 06 05

Continued from page 05 Political controversy Finally, judges also make political judgments. Judges, of course, are supposed to avoid political partisanship. But it’s inevitable that sometimes judges decide cases with profound political implications.

In the United States, where judges have broad powers to strike down legislation as unconstitutional, this has been a topic of debate for generations.

Here in the UK, where we have no codified constitution and Parliament is sovereign, the judiciary historically posed less of a threat to the power of politicians. But since the passing of the Human Rights Act 1998, judicial decision-making has increasingly provoked political controversy.

When judges make decisions which are politically controversial and which thwart the will of the executive, it’s often decried as “judicial activism”. To a significant extent, however, this is inherent to the protection of fundamental rights.

Most human rights instruments define their rights in fairly broad terms: the right to life, the right to liberty, the right to a fair trial, the right to private and family life and so on. The practical application of these rights is inevitably left to judicial interpretation. Judges must make evaluative judgments about how far a right extends and how it should be balanced against other priorities.

What’s interesting about the debate about ‘judicial activism’ is that its political contours can change radically over time, depending on the political orientation of the government and the political tenor of judicial decisions.

Simply put, most people like judicial activism when it accords with their political views and dislike it when it doesn’t. For instance, in the “Lochner era” of early 20th century America, when the Supreme Court effectively imposed right-wing economic policies by judicial fiat, socialists were among the strongest critics of judicial activism. Whereas by the late 20th century, it was conservatives who were vocally criticising judicial activism, being aggrieved by decisions such as Roe v Wade which recognised a constitutional right to abortion. Today, as the US Supreme Court has swung decidedly to the right again, we are once again seeing criticisms of the judiciary coming from the left.

Similarly, in the UK, the debate has to be viewed in its political

Like all humans, judges take cognitive shortcuts when making decisions and often those cognitive shortcuts reflect race, class and cultural bias

@

context. Much of the hardest-fought litigation under our Human Rights Act has been concerned with protecting the rights of marginalised groups, such as immigrants, asylum-seekers, prisoners, benefit claimants and homeless people.

Sometimes judicial decisions have expanded the frontiers of human rights protection and thwarted government policy. One of the earliest and most dramatic examples was the 2004 case of A, in which the House of Lords held that the indefinite detention of foreign national terror suspects without trial at Belmarsh Prison violated the European Convention on Human Rights.

Against this backdrop, most criticism of the Human Rights Act has tended to come from the political right. Some decisions have attracted particular ire, such as the European Court of Human Rights decision in Hirst which held that the UK’s blanket ban on prisoner voting violated the convention. The Hirst decision is unique in the annals of British human rights litigation, in that successive governments have simply refused to act on it and prisoners continue to be banned from voting today.

But it’s important to note that if the political contours of the UK changed, the debate over “judicial activism” would change too. For instance, if a socialist government came to power and nationalised all the assets of the rich without compensation, we could expect the aggrieved property owners to challenge it in court under Article 1 of Protocol 1 to the European Convention.

In those scenarios, it would likely be the left decrying judicial activism and the right supporting it.

It’s also important to note that the courts don’t always protect the rights of minorities against an overbearing government.

Sometimes they throw minorities under the bus. For example, in 2005 the House of Lords decided the case of N, in which it held that it did not breach the European Convention to remove a woman with AIDS to a country where she would die an early and painful death from lack of access to lifesaving medication.

The European Court of Human Rights reached the same conclusion. This decision represented the law for over a decade, until the European Court revisited its approach in 2016 in the case of Paposhvili, and the UK Supreme Court decided in the 2020 case of AM (Zimbabwe) to follow Paposhvili and overrule N. ■ Next week: Critics of judicial activism often use the word “unelected” when describing the role of judges. We look at how judges are appointed, to whom they are accountable and how representative they are of the public. ■ Professor Leslie Thomas KC is a lecturer at Gresham College in central London

06

Feb 10, 2023 Issue 2

PROPERTY LAW/ENVIRONMENTAL LAW

Navigating the legal fishhooks of flooding and storm damage Landowners have a general duty of care to act reasonably to prevent or mitigate damage to a neighbour’s property arising from a hazard they are aware of on their land

Kate Dickson After last week’s widespread flooding and property damage in Auckland, Northland, the Coromandel and the Bay of Plenty – and with a cyclone said to be on the way – many people are likely to be seeking help from their lawyers.

While the storms have passed and floodwaters have receded, the practical and legal consequences of the damage will be felt for a long time.

As we have seen from previous natural disasters in New Zealand, many people will require legal (and other) assistance to navigate the complex and unfamiliar systems they now find themselves in.

Listed below are some of the key issues lawyers may be asked to assist with.

Emergency powers

Kate Dickson

People may be wondering how and why emergency management organisations have been entering private land and directing the response to flooding. A state of emergency was declared in Northland, Auckland, the Coromandel and parts of the Waikato under the Civil Defence Emergency Management Act 2002.

This triggers a range of powers to respond to an emergency.

Once a state of emergency has been declared, this allows Civil Defence Emergency Management Groups and controllers to: ■ close or restrict access to roads or public places; ■ remove or secure dangerous structures and materials; ■ provide rescue, first aid, shelter and food; ■ conserve essential supplies and regulate traffic; ■ enter onto premises (ie, to evacuate or rescue people); and ■ evacuate premises and places.

Council building inspections Councils have been inspecting damaged buildings and affixing either a red, yellow or white sticker. These stickers demonstrate the outcome of a rapid building assessment: ■ red means the building is dangerous and must not be entered;

■ yellow means the building (or part of the building) is potentially dangerous and may include some restrictions on use (eg, being able to enter only for a limited time); and ■ white stickers mean the building is safe for normal use.

Both red and yellow stickers are formal notices under the Building Act 2004 and cannot be removed. It is an offence to intentionally damage, alter, remove or interfere with such stickers, punishable on conviction by a fine of up to $5,000 for an individual or $50,000 for a body corporate. It is also an offence to intentionally occupy a building in breach of a sticker, punishable on conviction by a fine of up to $200,000.

Homeowners should contact their insurance companies and work with the relevant council to undertake more detailed assessments as to the level of damage and repairs required. It can be a time-consuming process to have a red-or yellow-stickered house assessed, repaired and reclassified.

Residential tenancies A significant number of tenants will have experienced issues with flooding, ranging from minor damage to rendering properties uninhabitable.

Some key legal points that both tenants and landlords should be mindful of are: ■ Tenants are required to notify the landlord as soon as possible after discovery of any damage to their premises, or of the need for any repairs.

■ Landlords are responsible for the maintenance of the property. This responsibility is not subsumed by a natural disaster, so if property has been damaged then landlords have an obligation to remedy this, including by drying out the property if this is necessary.

■ Landlords are not responsible for damage to belongings within properties. Tenants will need to contact their insurer to assist with this (if they have contents insurance).

■ If a rental property has been partially destroyed (or part of the property is uninhabitable), then the rent payable should be reduced. Alternatively, an application could be

Continued on page 13 07

TECHNOLOGY

ChatGPT: what does accurate AI-powered machine learning mean for lawyers?

The company has hit the headlines due to the release of ChatGPT in November 2022, a conversational chatbot that generates text responding to questions

Steven Moe

08

Steven Moe It’s been a long day. As you are shutting down your computer a client calls and asks for an urgent memo on a complicated legal issue. You sigh deeply as the sun is setting. You would rather be at home, and this will take lots of research and effort.

But instead of starting work on the memo, you use a voice activated assistant to state the question to an interface which spits out a comprehensive answer within seconds.

Science fiction or a coming reality?

This scenario has been teased and talked about in various forms for a while now, often with comments on the demise of lawyers. After all, the client could easily get the answer himself.

I think lawyers will be needed for a long time, but let’s look at the latest developments in this area to get a sense of where we are and where things are headed.

OpenAI is a company which was founded to focus on artificial intelligence with a mission “to ensure that artificial general intelligence benefits all of humanity”. It’s governed by a not-for-profit but also has investors such as Microsoft and is fundraising on a reported valuation of US$29 billion.

The company has hit the headlines due to the release of ChatGPT in November 2022, a conversational chatbot that generates text responding to questions.

The GPT stands for “Generative Pre-trained Transformer” and the reason for the hype is the speed and accuracy of the answers. Also capturing attention is its ability to respond with poetry or song or computer code. Just this week Google has announced its response to ChatGPT, in the form of Bard AI. The pace of adoption is likely to increase as these tools become more available.

So, what does accurate AI-powered machine learning, of which this is just one example, mean for the legal industry?

First let’s address some lazy use of terminology. “AI” is a broad term that needs to be broken down. Artificial Intelligence is often used to describe things which are just complex algorithms rather than actual intelligence and consciousness.

The term “general AI” is used to differentiate those more

The reason for the hype is the speed and accuracy of the answers. Also capturing attention is its ability to respond with poetry or song or computer code basic abilities from the AI that can understand things and make its own decisions. AI has not reached that point…yet.

Just a parrot?

Critics seize on this point, noting that these forms of algorithm-driven programs, which have been trained and tweaked with human input, are essentially operating like a parrot, drawing on vast quantities of source material (literally hundreds of billions of words).

Where it gets truly interesting is if the parrot understands what it is saying and not just regurgitating content.

The co-founder of OpenAI puts it best, saying in a tweet, “ChatGPT is incredibly limited, but good enough at some things to create a misleading impression of greatness.”

Since Microsoft has invested in OpenAI it seems likely that the software none of us can easily avoid – Microsoft Word – might soon include features that are based on ChatGPT-type innovations.

For example, what if there was an ability to have assistance with inserting specialist clauses directly into a contract after it considered your context, and had evaluated millions of other clause examples?

Law can be incredibly nuanced, so even then I still see the place for a lawyer to be steering the ship of such drafting, and for a long while to come.

Continued on page 14

Feb 10, 2023 Issue 2

JUDICIAL REVIEW

High Court bid to ban e-scooters from footpaths fails A 2019 study revealed that Auckland surgeons were operating on more e-scooter users than motorcycle riders Rod Vaughan A high-powered legal battle to ban e-scooters from New Zealand’s footpaths to protect the safety of pedestrians has failed and there now appears to be little or no chance of pursuing the matter any further.

Late last year the High Court dismissed three major claims against e-scooter use brought by advocacy group Living Streets Aotearoa and backed by former High Court judge Sir David Williams KC. In essence, the claims stated e-scooters should be considered motor vehicles, requiring riders to gain a licence, that Waka Kotahi should have held consultations before allowing their use and that the agency was wrong in failing to ensure that overly powerful e-scooters were not being used.

Living Streets Aotearoa argued that e-scooters should be forced to use bike paths and roads instead of footpaths where they pose a serious threat to pedestrians, especially the blind and disabled.

The group said its greatest concern was that Waka Kotahi failed to uphold New Zealand’s obligations under the United Nations Convention on the Rights of People with Disabilities (UNCRPD).

However, this cut no ice with Justice Graham Lang, who in his judgment said the transport agency did not have to consider the convention because it was not a requirement written into its controlling legislation.

That said, Justice Lang did acknowledge that Waka Kotahi does not have an enforcement plan in place to make sure e-scooters with higher-powered engines aren’t being used.

“I consider this was an error because Waka Kotahi, or some other agency, needed to have the ability to

determine whether individual e-scooters complied with the regulatory requirements should this be raised as an issue,” the judge said.

“However, failure to take into account a mandatory consideration does not automatically result in a decision being set aside.”

The judgment left Living Streets Aotearoa executive council member Dr Chris Teo-Sherrell feeling “shocked, disappointed and flabbergasted”.

He told LawNews he was “thoroughly disappointed” that the High Court dismissed arguments that the disabled community should have been consulted beforehand.

“If that dismissal was valid, then we are left wondering just what is the point of New Zealand ratifying international conventions such as the UNCRPD. Ratification is not about passing stand-alone Acts but about exercising all aspects of statutory power in accordance with the conventions we ratify, unless we specify exceptions when we sign up.”

Teo-Sherrell says taking everything into consideration, Living Streets Aotearoa has decided not to appeal the High Court’s decision.

“But it is not the end of our efforts to have the riding and parking of e-scooters on footpaths banned.

And we will look with interest to see how Waka Kotahi addresses the court’s finding that it did err in not having a way of assessing compliance with the maximum power output condition.”

Sir David Williams KC – a driving force behind the campaign to have e-scooters banned from footpaths – said he was disappointed with the outcome.

“I think it is a shame there is not going to be an appeal because the judge, in my view, should have

addressed all the definitional issues so as to make it clear what the regulator must do next time around.”

Sir David first raised his concerns about three years ago in a letter to The New Zealand Herald.

As a keen cyclist, he complained that while he was required to ride on the road and take his chances with trucks and cars, motorised scooters were allowed to use footpaths without any consideration being given to pedestrian rights and safety.

Sir David later told LawNews it was “truly astonishing” that neither local nor central government considered the obligations they owed under the 2006 UN Convention on the Rights of Persons with Disabilities (UNCRPD) to which they are a party.

“In my opinion, that failure was a clear breach of Article 4 (1) and Article 3 of the convention.”

He said allowing e-scooters and other motorised transport devices and bicycles to operate on footpaths was not only inconsistent with New Zealand’s international obligations to promote full inclusion of disabled people and to remove barriers to them, but would also put major obstacles in their way, both figuratively and literally.

Sir David’s concerns led him to approach Living Streets Aotearoa which was already contemplating a legal challenge to regulations allowing e-scooters on footpaths and it was then that Auckland law firm Wilson Harle also became involved.

With input from Sir David, the law firm based its judicial review application on the UNCRPD which New Zealand signed in 2007 and ratified a year later.

Continued on page 13 09

FEATURED CPD

FINAL NOTICE

ALL LEVELS PROPERTY WEBINAR

Landonline update Webinar 1 CPD hr Monday 13 February 12pm – 1pm Price from $80 +GST Presenter Andrea Watson, consulting solicitor for the Modernising Landonline program, LINZ

This webinar offers tips on using the new Landonline functionality, along with updates on future tweaks to the system.

FIND OUT MORE

FINAL NOTICE

Corporate trustee governance and decision-making ALL LEVELS TRUSTS SEMINAR

Livestream | In person 1.5 CPD hours Wednesday 15 February 4pm – 5.30pm Price from $110 +GST Presenters Vicki Ammundsen, director, Vicki Ammundsen Trust Law and Theresa Donnelly, legal services manager, Perpetual Guardian

This seminar will address practical issues and risks when acting as a corporate trustee. This includes the wearing of two hats if acting as lawyer for the trust, corporate trustee structure and constitution, multiple trust appointments, PI implications and trustee duties.

IN PERSON

FINAL NOTICE

ALL LEVELS FAMILY SEMINAR

Writing right – for family lawyers Livestream | In Person 2 CPD hrs Thursday 16 February 4pm - 6.15pm Price from $140 +GST Presenters Judge Kevin Muir and Brian Carter, barrister

This seminar, with bench and bar perspectives, offers direction and insights into effective, concise drafting. In other words, writing right.

IN PERSON 10

LIVESTREAM

LIVESTREAM

Feb 10, 2023 Issue 2

adls.org.nz/cpd

Build your brand (junior)

In person 2 CPD hours Tuesday 21 February 9am - 11.15am Price from $300 +GST Presenter Anne Casey, founder and director, Marketing Minds

cpd@adls.org.nz

09 303 5278

This foundation workshop will provide an overview of digital marketing, including personal branding and why it is important.

It will also take a deep dive into LinkedIn, covering tips and tricks, interacting in a professional manner and how to represent your firm.

ALL LEVELS IMPROVEMENT WORKSHOP

FIND OUT MORE

Overseas Investments in New Zealand small businesses INTERMEDIATE COMMERCIAL WEBINAR

Webinar 1 CPD hour Tuesday 21 February 12pm – 1pm Price $80 +GST Presenters Members of the monitoring and intelligence team, Overseas Investment Office

This webinar will cover the overseas investment regime as it applies to investments in businesses or business assets under $100 million. It will explain the different types of businesses covered by the National Security and Public Order notification regime and help you to recognise when a mandatory notification could be required.

FIND OUT MORE

Insights into ESOPs INTERMEDIATE COMMERCIAL WEBINAR

Webinar 1.5 CPD hrs Monday 27 February 12pm – 1.30pm Price from $110 +GST Presenters Alex Franks, partner, Chapman Tripp and Bevan Miles, partner, Chapman Tripp (Tax) Chair Andrew Lewis, principal, Andrew Lewis Law

To advise on ESOPs, you need to understand the different types of ESOP, tax and securities law considerations and the practical steps needed to establish and administer a scheme. This webinar will provide key information to enable you to effectively navigate this area.

FIND OUT MORE 11

CPD IN BRIEF

Build your brand (firm)

In person 1.5 CPD hours Tuesday 28 February 9am – 10.30am Presenter Anne Casey, founder and director, Marketing Minds

This workshop includes an overview of digital marketing and its importance. It outlines the channels most suited to legal firms, including email marketing, websites, video formatting, Tik Tok and YouTube. Learn how to get the most from your LinkedIn firm page and how to get your lawyers engaged with digital marketing.

FIND OUT MORE

Working with lawyer for child

Livestream | In Person 2 CPD hrs Tuesday 28 February 4pm – 6.15pm Price from $140 + GST Presenters David Amodeo; Val Muller; Sonya Singh and Craig Walker

Providing perspectives from those in the role, the judiciary and the ministry, this seminar provides key insights into what the role is (and is not); the statutory framework; the balancing act required in considering the child’s views and his or her welfare and best interests; the role in different contexts; managing challenges and the use of reports.

Chair Judge Alexander Laurenson

IN PERSON

Privacy for legal professionals

Webinar 1.5 CPD hours Thursday 2 March 12pm – 1.30pm Presenters Amy KingstonTurner; Edwin Lim; Luke Han and Tegan Hall Chair Lloyd Gallagher, managing partner, Gallagher & Co

LIVESTREAM

Join our panel to harness key information and insights into the interface between privacy and technology in legal practice.

FIND OUT MORE

Assessing capacity workshop

Workshop 3 CPD hours Tuesday 7 March 9am – 12.15pm Presenters Alison Douglass; Dr Greg Young and Dr John Kennelly

Assessing capacity has many applications – for health care, finances, making a will, personal relationships and even liberty and placement in care. In this workshop, two developers of the popular Toolkit for Assessing Capacity, together with a general practitioner working at the coalface, will provide insights into the legal and medical tests, the method of assessing capacity, referrals, the lawyer’s role in supportive decision-making and cultural considerations.

FIND OUT MORE

Insights into ESOPs Monday 27 February | Webinar | 1.5 CPD hours Visit adls.org.nz for more information.

12

Feb 10, 2023 Issue 2

Continued from page 07

made to the Tenancy Tribunal to end the tenancy.

■ If the rental property is destroyed (or so seriously damaged as to be uninhabitable), then either the tenant or the landlord can give notice to end the tenancy. The tenant’s notice period is two days and the landlord’s is seven days. In such cases, there may be a question about whether the damage is so serious it renders a property uninhabitable. New Zealand case law on what amounts to “uninhabitable” developed as a result of the Christchurch earthquakes. It confirms that each case must be considered on its merits, having regard to the circumstances of the tenants. What is habitable for young people occupying a flat may not be for a family with a child with bronchial

problems, or an elderly couple whose mobility is affected by their age.

Landslides and liability Liability for landslides or slips can be complex and is fact-dependent. Some general principles are provided below, but an assessment of the particular circumstances will be required in each case.

If land or a building has been damaged because of a landslide, generally it is the owner of the land’s responsibility to repair the damage. There is not an automatic obligation on the neighbour whose land slipped. However, the case is different if the slip resulted from negligence by the neighbour.

Conversely, a downhill landowner could be liable to the uphill neighbour if the landowner had done something to affect the stability of the uphill land (earthworks, for example). Landowners have a right

of support for land in its natural state. This does not mean a downhill landowner has an obligation to stabilise a neighbour’s land – just a duty not to remove support that is already present.

Finally, landowners have a general duty of care to act reasonably to prevent or mitigate damage to a neighbour’s property arising from a hazard they are aware of on their land. So, if there is a risk of further slips, an uphill landowner may have an obligation to take reasonable steps to remove or reduce that risk, depending on their knowledge of the hazard and the ability to foresee the consequence of not dealing with it. ■ Kate Dickson is a local government and environmental law specialist and an associate at Wynn Williams ■

Continued from page 09 In its submissions, Wilson Harle contended that the disabled community had a legitimate expectation of consultation by Auckland Council and NZTA/Waka Kotahi when making decisions on issues concerning its members.

“NZTA did not consult with the public or the disabled community before issuing a gazette notice in September 2018, declaring e-scooters not to be motor vehicles,” the firm said. “They are in fact motor vehicles as defined in the Act and as such are prohibited from being driven on the footpath.

“Auckland Council also failed to consult with the disabled community when licensing e-scooters for use on the footpath.”

So, for now, the legal battle to ban e-scooters from footpaths appears lost but the growing number of crashes will ensure the issue doesn’t go away anytime soon.

The latest data shows ACC paid out $30.1m on 10,577 e-scooter injury-related claims between October 2018 and October 2022.

A 2019 study also revealed that Auckland surgeons were operating on more e-scooter users than motorcycle riders. ■

NEW EDITION

Nevill’s Law of Trusts, Wills and Administration, 14th edition Author Dr Lindsay Breach Easy to use and written in plain English, Nevill’s Law of Trusts, Wills and Administration includes comprehensive commentary alongside practical tools to assist the reader.

Strongly established as a go-to text for New Zealand trust law, this 14th edition has been significantly restructured and accommodates the changes made to the law since the Trusts Act 2019 came into force.

It will be a valuable resource for all those practising or studying the law relating to trusts, wills and administration.

Topics covered include: ■ Types of trusts ■ Trustees’ powers and duties ■ Administration of trusts ■ General principles relating to wills ■ Executors and administrators ■ Succession on intestacy

Price for ADLS members $156.51 plus GST* Price for non-member lawyers: $173.91 plus GST* (* + Postage and packaging) To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.

13

Continued from page 08 Three questions At present, using ChatGPT is free so I registered and asked it a few questions to experiment with how it might be used to prepare summaries of information: ■ First, I asked it, “What is the role of the Auckland District Law Society?” Its instant response was, “The Auckland District Law Society is a professional association for lawyers in Auckland, New Zealand. It was founded in 1857. The society’s main purpose is to ‘promote the administration of justice and the interests of the legal profession.’

It does this by providing services and support to its members, and by advocating for the legal profession and the interests of justice.”

■ Next, I asked it to write a summary of the court system in New Zealand. It responded within a few seconds: “New Zealand’s court system is divided into two branches: the district courts and the High Court. The district courts are the main courts of first instance and deal with most criminal and civil cases. They also hear appeals from some tribunals. The High Court is the highest court in the country and hears appeals from the district courts. It also deals with certain criminal

cases and applications for judicial review. All courts in New Zealand are independent from the government and the judiciary is appointed by the Governor-General. The Supreme Court of New Zealand is the final court of appeal for all matters in the country, and its decisions are binding on all lower courts.”

■ I then asked it to add sarcasm and it responded with this addition: “So if you’re looking for justice, you’ve come to the right place! Our court system is the perfect example of efficiency and fairness – unless, of course, you’re a defendant.”

I was impressed. It seems to be like a much smarter version of Google because it doesn’t simply give you links to sources of information – it provides you with the actual summary itself.

In other experiments the summaries were generally accurate although some details were incorrect. But they were errors I see humans get wrong all the time too, like referring to the Charities Commission instead of the current name of Charities Services.

Other developments in this area are interesting. For example, recently in the United States the company DoNotPay, which arose out of an app helping people get off parking fines, has offered US$1 million to anyone willing to allow their AI app to argue a case in the Supreme Court (with it delivering directions to the

Members Special Fund The ADLS Members Special Fund exists to assist eligible members of the profession and their dependants in times of hardship From an application, the Members Special Fund Committee, in the strictest confidence, will request information setting out in some detail the nature of the financial difficulty.

Assistance can be in the form of a grant or at times an interest-free loan.

For assistance contact:

Paul Collins, Committee Convenor pcollins@shortlandchambers.co.nz

14

Sue Keppel, ADLS Chief Executive Officer sue.keppel@adls.org.nz

human lawyer via an earpiece).

That won’t be permitted due to rules about what can go before the court but it’s interesting to see where the technology is headed. The company says this year it will argue a speeding ticket case, with its AI listening to arguments and instantly telling a defendant what to say in response via an earbud.

So, what about for you? Would you welcome an AI assistant that scoured every legal decision and provided an answer?

Perhaps it would free us up to concentrate on novel situations where we can bring decades of wisdom to bear for the benefit of our clients while freeing up time to watch the sunset instead of diving into memo preparation.

I like to think our role as lawyers is to catalyse positive impact for our clients, so tools that might assist that are welcome. It is a fast-moving space that will surely see more innovations in 2023 now the concept introduced by ChatGPT is being mainstreamed. ■ Steven Moe is a partner at Parry Field Lawyers, a member of the ADLS Technology & Law Committee and hosts Seeds podcast with 330 episodes ■

Feb 10, 2023 Issue 2

WILL INQUIRIES Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

BAIRA Zabron Chitume • Late of 1/36 De Havilland Drive, Goodwood Heights, Auckland • De facto relationship • Quantity surveyor • Aged 66 / Died between 27’09’22 and 28’09’22 CHAND Deo • Late of 40A Hokonui Road, Otahuhu, Auckland • Married • Damages clerk • Aged 61 / Died 24’07’22 DAYAL Rakeshwar • Late of 15 Cramond Drive, Mangere, Auckland • Aged 55 / Died 19’11’22 GUO Peiyan (aka Pei Yan GUO) • Late of 14/19 Karaka Street, New Lynn, Auckland • Retired • Aged 72 / Died 22’10’22 HENRY Reece Newton • Late of 6 Carlyle Avenue, Hamilton • Single • Unemployed • Aged 62 / Died 31’12’22

( 09) 303 5270

Offices Available Following some barristers retiring, we have three offices of varying sizes available for rent.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst.

No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

HOUGHTON Deidre Ann (born Deidre Ann Brazzi)

Time to take down your shingle?

• Late of 3 The Rickyard, Ardington, Wantage, Oxfordshire, United Kingdom Formerly of Auckland and various New Zealand locations • Married • Company director • Aged 78 / Died 25’09’22

Do you want to retire or move away from the practice of law?

We are a small Auckland CBD practice. We do litigation, commercial, property and trust and estate work. We want to expand our client base by acquiring one or more client bases.

We are open to different arrangements to achieve this.

If this sounds like you, please email us on takedownyourshingle@gmail.com.

All replies will be treated with absolute confidentiality.

KAREROA Ngatae (known as Tai) • Late of 1/7 Garden Road, Northland, Wellington Formerly of 250 Titirangi Road, Auckland • Married • IT professional • Aged 60 / Died 04’11’22 LAMB Basil • Late of 11 Kaumatua Crescent, Kensington, Whangarei • Retired • Aged 89 / Died 20’12’22 RALPH Guy Richard • Late of 80 Lighthouse Road, Awhitu • De facto relationship • Farm manager • Aged 48 / Died 23’05’22

Senior commercial/property lawyers required East Auckland Fast-track to partnership We are a friendly medium-sized firm in Flat Bush, Auckland, established for many years. Owing to retirement we now seek potential partners.

This is a genuine opportunity for partnership in the short-to medium-term for the right candidate (with no money down).

We seek lawyers with 5 years’ plus PQE and proven experience in property and commercial matters. If this sounds like you, please get in touch to explore options.

Richard Brown – Director 09 271 5880 richard@murdochprice.co.nz

Murdoch Price Lawyers

15

2 CPD HOURS

Writing Right - for Family Lawyers

Thurdsay 16 February | 4.00pm - 6.15pm | In Person & Livestream This seminar, with bench and bar perspectives, offers direction and insights into effective, concise drafting. In other words, writing right.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

2 CPD HOURS

Build Your Brand (Junior) Tuesday 21 February | 9.00am - 11.15am | In Person Workshop This foundation workshop will provide an overview of digital marketing, including personal branding and why it is important. It will also take a deep dive into LinkedIn, covering tips and tricks, interacting in a professional manner and how to represent your firm.

T 09 303 5278

16

E cpd@adls.org.nz

W adls.org.nz/cpd