LawNews- Issue 5

NEWS Mar 3, 2023 Issue 5

Inside ■ LITIGATION

Running trans-Tasman class actions P05

■ TECHNOLOGY

How to identify AI-generated text P08

Bad news for trustees in key adls.org.nz

COSTS AWARD

Contents 03-04 BENEFICIARIES TRUSTEES COSTS

A sobering costs ruling for professional trustees

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

Editor: Jenni McManus Publisher: ADLS

05 LITIGATION CLASS ACTIONS TRANS-TASMAN

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Running a class action on both sides of the ditch

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06-07 INVESTMENT SHAREMARKET INSTITUTIONS

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The futility of trying to time the market

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09 EVENTS

10-11 Photo: Tetra Images / Getty Images

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Mar 3, 2023 Issue 5

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TRUST LAW

Addleman costs decision: a sobering ruling for professional trustees Of greater significance, perhaps, is the message the Supreme Court has effectively given to all trustees who might get drawn into litigation as a result of their trustee decisions

Andrew Steele On 1 June 2021, the Supreme Court issued judgment in Lambie Trustee Limited v Addleman [2021] NZSC 54. The case involved the principles relating to disclosure of legal advice obtained by trustees to beneficiaries of the trust.

To cut a long but interesting story short, the court held that while legal privilege applies to the legal advice, a “joint interest exception” applied which entitled beneficiaries of the trust to see the advice on the assumption it is ultimately obtained for their benefit.

The practical effect of the judgment was that Prudence Anne Addleman was entitled to see the legal advice obtained by the trustees, even though that advice was specifically directed to the issue of whether or not the trustees should disclose certain ‘trust information’ requested by her and notwithstanding that it sought legal guidance about the right course of action in the face of threatened litigation by Addleman.

This note is not focussed on the reasoning in that judgment but on the costs rulings that followed.

On 17 February 2023, more than 18 months later, the Supreme Court issued its costs decision. And for all trustees, especially professional ‘independent’ ones, it’s sobering. The court: ■ awarded Addleman her actual out-of-pocket legal costs (for senior and junior counsel) to be paid out of the trust property; ■ directed that the professional trustee company, incorporated by a law firm to provide ‘independent’ trustee services, be denied indemnity for its costs from the trust, not only in the Supreme Court, but also in the Court of Appeal. These were its own out-of-pocket costs, plus Addleman’s costs for which the trustee is personally liable (s 81(1) Trusts Act 2019); ■ directed the trustee to reimburse to the trust, from funds not sourced from the trust, any costs paid out of the trust in respect of the appeals to the Supreme Court and Court of Appeal; and ■ awarded Addleman costs on scale (2B) in the High Court with the trustee’s indemnity removed here too.

In short, the professional trustee company is liable for a substantial sum in legal costs.

Section 81(2) of the Trusts Act 2019 provides that a trustee who incurs an expense or a liability when acting reasonably on behalf of the trust is entitled to reimburse itself or to pay the expense or liability directly from the trust property.

The key qualifier for getting paid is that it must be “acting reasonably”. Clearly, the Supreme Court held that the trust company did not act reasonably.

In seeking costs, Addleman argued that the trustee’s actions were not reasonable (ie, proper) because [5]: ■ The trustees were well aware of the need to give disclosure to her and that she was a “principal beneficiary”, yet the trustee aligned itself entirely with the interests of her sister and another beneficiary of the trust.

■ There were procedures that the trustee could have adopted such as seeking directions from the court or a Beddoe or prospective costs order.

■ The trustee unreasonably rejected a reasonable settlement offer.

■ There is a general proposition that trustees should not lightly pursue appeals.

Continued on page 04 03

Continued from page 03

Andrew Steele

The Supreme Court noted that ‘careless and unreasonable conduct in the conduct of litigation’ may deprive a trustee of the indemnity

The Supreme Court noted that “careless and unreasonable conduct in the conduct of litigation” may deprive a trustee of the indemnity. Further, a trustee partisan in his or her own interests or the interests of only some beneficiaries likewise may be deprived of indemnity [10].

The court accepted Addleman’s arguments and stated that it must have been apparent to the trustee that on the authorities some further disclosure, at least, had to be made to Addleman. And that Addleman’s settlement offer, albeit late in the proceedings, corresponded closely to the result the court arrived at, so if the offer had been accepted it would have reduced the costs incurred.

The court also added that the content of the offer and the trustee’s abrupt rejection of it removed any reservations the court may otherwise have had about Addleman’s suggested approach to costs and indemnity [11].

Comment In my experience, companies incorporated by law firms for the sole purpose of acting as ‘independent’ trustee have no assets of their own.

All ‘their’ assets belong to (ie, are held in) the trust. This means the Addleman costs orders will likely have placed the trustee company into insolvency.

It follows that while the trust may have the property necessary to pay Addleman’s costs, the sums paid may not be replaced by funds sourced by the trustee personally.

If this eventuates, then Addleman might be forgiven for thinking she is paying her legal costs out of her ‘own funds’ – not literally, but nevertheless from funds in which she has an interest as a discretionary beneficiary of the trust. Is that fair?

Is that just?

A company trustee has no mind of its own, of course – it is the alter ego of its director(s). As Fletcher Moulton LJ in Bath v Standard Land Company Limited [1911] 1 Ch 618 at 637 stated in respect of such directors: They have complete and perfect knowledge of the nature of the acts which the company is doing through them. But they have even more than this. They know that there is no mind interposed between them and the cestui que trust

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which administers the trust. It is they who are in fact doing it and no one else, although it may be done in the name of the company.

So, if the trustee company cannot meet the costs awards, then a question arises as to the potential liability of the director(s) of that company who, after all, caused it to ‘act unreasonably’, resulting in the denial of the usual right of indemnity.

Of greater significance, perhaps, is the message the Supreme Court has effectively given to all trustees who might get drawn into litigation as a result of their trustee decisions.

The message: act reasonably and be careful. That may translate into seeking court directions or Beddoe orders (the court’s sanction of proceedings by trustees).

It also means trustees should try to ensure they are not drawn into the arena of the battle between beneficiaries. It seems the trustee in this case sided with one beneficiary over the other.

The well-known obligation is now codified in s 35 of the Trusts Act 2019 which states: “A trustee must act impartially in relation to the beneficiaries and must not be unfairly partial to one beneficiary or group of beneficiaries to the detriment of the others.”

As a matter of practice, especially for independent professional trustees, particular care must be taken to apply professional detachment, objectivity and a ‘reasonability test’ to decisions and when discharging their trusteeship responsibilities.

Experience teaches that this might be challenging when a strong-willed settlor of a discretionary family trust, who is also a trustee and beneficiary, is a longstanding and valued client of the law firm and consciously or unconsciously seeks to lead or dominate trustee decision-making.

For some reason the trustee in this case aligned itself entirely with the interests of one beneficiary of the trust.

That alignment and the decisions that flowed from it appears to be a key factor as to why the trustee in this case ended up in so much strife. The Supreme Court has sent a powerful message to trustees who act in this manner. ■ Andrew Steele is an Auckland barrister specialising in trusts and estates ■

Mar 3, 2023 Issue 5

LITIGATION/CLASS ACTIONS

Running class actions on both sides of the ditch It is a welcome development in the streamlining of litigation and effective management of class actions in the New Zealand courts Sophie East and Tim Shiels

The case confirms that Australian courts can have jurisdiction to consider claims under New Zealand legislation

The High Court recently stayed a high-profile class action in New Zealand while a similar class action on the same facts is advanced in Australia.

The decision, Whyte v The a2 Milk Company Limited, provides useful guidance on the circumstances where a proceeding (particularly a class action) will be stayed in New Zealand due to a competing proceeding across the Tasman.

It is a welcome development in the streamlining of litigation and effective management of class actions in the New Zealand courts.

Importantly, the case also confirms that Australian courts can have jurisdiction to consider claims under New Zealand legislation. This may lead to such claims being bundled into larger Australian-based class actions.

The competing proceedings a2 is registered in New Zealand under the Companies Act 1993 and listed on both the ASX and NZX. The cases relate to various statements a2 made to the ASX and NZX in late 2020 and early 2021.

It’s alleged that statements made in a2’s FY21 earnings guidance, and subsequently to the stock exchanges, did not adequately take account of several factors which would impact the company’s financial performance and likelihood of achieving the forecasts.

In October and November 2021, the plaintiff shareholders launched two class actions against a2 in the Victorian Supreme Court in Australia. Both claims alleged a2’s statements were misleading and deceptive and that the company breached its continuous disclosure obligations by not withdrawing the representations or disclosing the matters that affected the achievement of the guidance.

Both alleged breaches under Australian law, with one claim also alleging breaches under New Zealand law. Ultimately, the two Australian class actions were consolidated into one proceeding. The Victorian Supreme Court subsequently ruled that it had jurisdiction to determine the New Zealand law claims, including to grant relief.

In May 2022, a New Zealand-based plaintiff, Kevin James Whyte, launched a similar class action against a2 in the New Zealand High

Court. The claim was for the same alleged breaches of continuous disclosure obligations and misleading and deceptive conduct as in the Victorian actions, but was made only under New Zealand law.

By the hearing date, several investors had opted-in to the proceeding, including a financial institution representing 3907 beneficial owners (3812 of whom reside in New Zealand). Each participant in the New Zealand class action also agreed to opt out of the Australian class action so there would be no overlap between the classes of plaintiffs.

Whyte sought leave from the New Zealand High Court to begin the class action, a step required under the High Court rules. In turn, a2 applied to stay the proceedings under the Trans-Tasman Proceedings Act 2010 in a bid to halt further progress of the proceeding.

Justice Rebecca Edwards’ decision on both issues was released late last month.

The court approved the application for leave to commence the class action without much difficulty. Justice Edwards concluded there was a requisite commonality of interest between Whyte and the class members, and the members of the proposed class all consented to representation.

The judge considered that any arguments about overlapping class actions were best dealt with by considering a stay under the TransTasman Proceedings Act rather than when determining whether to grant leave to commence the class action.

The Australian legislation The Trans-Tasman Proceedings Act was enacted in 2010 with the stated objective of streamlining “the process for resolving civil proceedings with a trans-Tasman element in order to reduce costs and improve efficiency”.

Under s 24 of the Act, a New Zealand court may stay a proceeding if it is satisfied an Australian court has jurisdiction to determine the matter between the parties and “is the more appropriate court to determine those matters”.

In determining whether an Australian court is the more appropriate, a New Zealand court may consider several factors, including the location of those involved, the underlying facts, the most appropriate law to apply and whether a similar proceeding has already been started against the defendant in an Australian court. If both those limbs are satisfied, the New Zealand court has discretion as to whether to grant a stay.

In this case, the court had little difficulty in concluding that the Victorian Supreme Court had potential jurisdiction to determine the matters between the parties. The real question for the court was whether the Victorian Supreme Court was the more appropriate to determine the issue.

The determination The court gave little weight to the fact that the representative

Continued on page 13 05

INVESTMENT

The futility of trying to time the market and how six Wall St institutions got it horribly wrong The number of investors in New Zealand who still believe the role of their adviser is to help them predict the future is still extremely high

Patrick Fogarty Here we go again. Another year begins and, like clockwork, out come the soothsayers, the prognosticators, the suit-cladded oracles with erudite predictions for the year ahead.

If you follow the markets and regularly consume investment journalism, you will no doubt be familiar with the seasonal, start-ofthe-year prediction cycle. All the major players get in on the action, outlining well-constructed narratives describing what will “drive markets going forward” and setting expectations for where they believe markets will land by the end of the coming year.

The predictions are convincing, filled with reassuringly sophisticated investment language and well-crafted conclusions based on expert opinion.

It would, on the surface, seem foolish to ignore what these experts have to say. Surely with their significant resources, the advanced systems at their disposal and their unrivalled access to company information they must have an edge when it comes to predicting the direction of stock markets. Right?

On 1 December 2021, Sergei Klebnikov, markets staff writer for Forbes, posted an article titled Here’s What Wall Street’s Biggest Banks Predict For Stocks In 2022 – And What To Watch For. It encapsulates the collective mood on Wall Street, summarising the 2022 outlook for the S&P 500 (the US stock market) across eight major financial institutions.

It leads with an optimistic tone, that “the majority of Wall Street firms predict the stock market will continue to rally next year, albeit modestly, thanks to strong corporate earnings, solid economic growth and easing supply chain issues.” From here the predictions

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become more granular, with each institution providing a unique take on the investment landscape and a price prediction for the S&P 500 at year’s end. So, how did they do?

Let’s start with arguably the most famous, or perhaps infamous, institution in the list, Goldman Sachs. According to Klebnikov, Goldman predicted the value of the S&P 500 would rise in 2022, estimating a nearly 10% gain. A cautious note to investors stated “decelerating economic growth, a tightening Fed and rising real yields suggest investors should expect modestly below-average returns next year”. However, despite these headwinds, Goldman remained confident “the equity bull market will continue”.

This optimistic tone was consistent with JP Morgan, where bullish analysts set a price target for the market amounting to an approximate 8% gain for the index, citing robust earnings growth and a recovering labour market as key drivers.

Striking a more prescient tone, the bank tempered its outlook, noting a “hawkish shift in central bank policy” as a potential concern, especially if supply-chain issues and labour shortages continue.

Bullish sentiment also made its way into the halls of UBS, where analysts predicted a nearly 5% gain for the S&P 500. The bank predicted stocks were “likely to have a pullback at some point”, but felt confident that strong corporate earnings and the eventual decline of covid cases would ultimately push the market higher.

In total, eight major Wall Street institutions were profiled. Of these, six incorrectly predicted a positive trajectory for the year ahead, with end-of-year price predictions ranging from 4,850, to 5,300 at the

Continued on page 09

Mar 3, 2023 Issue 5

Continued from page 08 top end (the starting point being 4,766 at year-end 2021). For the latter, this represents a 1,461-point differential, or a roughly 28% gap, between the price they predicted and where the index ultimately landed by year-end 2022 (3,839).

Two of the profiled institutions, Bank of America and Morgan Stanley, did manage to correctly pick the downward direction of the index. However, this would have offered little consolation to investors looking for guidance as their predictions, while correct in terms of trajectory, were still out by approximately 17% and 13% respectively.

Real-time response So, what is the ultimate point here? While I have always enjoyed pointing out the inadequacies of those who purport to be able to predict the future of stock prices and charge obscene fees for the pleasure, my intention in this piece is to help people arrive at an ‘aha’ moment I had early in my career.

The American economist Eugene Fama, widely recognised as the “father of modern finance”, won a Nobel Prize for his work on market efficiency, an area of research that looks at how quickly a company’s stock price incorporates information. As it turns out, for publicly traded companies like those in the S&P 500, the process is very quick indeed.

I have no doubt the aforementioned analysts, who worked tirelessly to arrive are their conclusions, are intelligent, insightful and highly valuable employees to their respective institutions. However, I do not believe for a second that they can predict the future. No one can.

If we are to agree with Fama, as I do, that the market is an extremely powerful machine that ceaselessly processes information in real time, efficiently adjusting prices as new information becomes available, then it is logical to conclude that the future direction of stock prices will be determined by future unknown events.

In February 2022, Russia invaded Ukraine, resulting in unprecedented sanctions, soaring energy prices and all manner of implications for global trade and inflation. Queen Elizabth died in September, shortly before Liz Truss, the shortest-serving English Prime Minister of all time, unveiled monetary policies that would drive the British pound to an all-time low against the US dollar. The Bank of England was forced to support the bond market for fear of a broader

economic collapse, the ‘cryptosphere’ saw a near-collapse with the demise of heavyweights Terra-Luna and FTX, a European fuel crisis loomed, China began easing its zero-covid policy, the US Fed furiously hiked rates, political unrest hit boiling point in Iran, climate change indicators intensified and, perhaps most importantly, Will Smith slapped Chris Rock in the face at the Academy Awards.

Suffice to say the world is unpredictable, full of unforeseen events that shape economic returns. Attempting to use the information available at any point in time as a basis for predicting future prices is to discount the unknown variables that will invariably shape the world. Knowing what will happen next, typically, has very little to do with creating a positive investment experience.

Investing in the S&P 500 has, over the long-term, generated remarkable returns for investors, irrespective of their predictive prowess. Simply holding the index over the last 30 years would have delivered you a return just shy of 10% per annum, despite some considerable intra-year volatility.

The market is an extremely powerful machine that ceaselessly processes information in real time, efficiently adjusting prices as new information becomes available

Pointless exercise The essential point here is that spending time attempting to decipher the vagaries of the markets is rarely a useful enterprise.

Those who do, often get distracted by spurious short-term market events and make rash decisions that can destroy value.

The futility of endlessly chasing market-beating returns is a topic supported by endless academic studies, nonetheless the number of investors in New Zealand who still believe the role of their adviser is to help them predict the future is still extremely high.

Quality advice should always start with a thorough analysis of your personal situation and an assessment of your unique objectives.

It is from this foundation that a tailored investment strategy can be implemented, one that prioritises what is important to you and provides confidence that your desired outcomes are realistic and achievable.

How you should invest the proceeds of a financial windfall, how much you can afford to spend in retirement, the sort of legacy you will leave for the next generation: these are the sorts of things a competent adviser can help you grapple with rather than trying to predict where the S&P 500 will be in 12 months’ time. ■ Patrick Fogarty is a principal and financial adviser at Rutherford Rede ■

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TECHNOLOGY

We pitted ChatGPT against tools for detecting AI-written text and the results are troubling Rather than paying someone to write your assignment, you pay someone to rework your AI-generated assignment to get it past the detectors Armin Alimardani & Emma J Jane As the “chatbot wars” rage in Silicon Valley, the growing proliferation of artificial intelligence (AI) tools specifically designed to generate human-like text has left many baffled.

Educators in particular are scrambling to adjust to the availability of software that can produce a moderately competent essay on any topic at a moment’s notice. Should we go back to pen-and-paper assessments? Increase exam supervision? Ban the use of AI entirely?

All these and more have been proposed. However, none of these less-than-ideal measures would be needed if educators could reliably distinguish AIgenerated and human-written text.

We dug into several proposed methods and tools for recognising AI-generated text. None is fool-proof, all are vulnerable to workarounds and it’s unlikely they will ever be as reliable as we’d like.

Why can’t the world’s leading AI companies reliably distinguish the products of their own machines from the work of humans? The reason is ridiculously simple: the corporate mission in today’s high-stakes AI arms is to train ‘natural language processor’ (NLP) AIs to produce outputs that are as similar to human writing as possible.

Indeed, public demands for an easy means to spot such AIs in the wild might seem paradoxical, like we’re missing the whole point of the program.

A mediocre effort OpenAI – the creator of ChatGPT – launched a “classifier for indicating AI-written text” in late January.

The classifier was trained on external AIs as well as 08

the company’s own text-generating engines. In theory, this means it should be able to flag essays generated

by BLOOM AI or similar, not just those created by ChatGPT. We give this classifier a C–grade at best. OpenAI admits it accurately identifies only 26% of AI-generated text (true positive) while incorrectly labelling human prose as AI-generated 9% of the time (false positive).

OpenAI has not shared its research on the rate at which AI-generated text is incorrectly labelled as human-generated text (false negative).

A promising contender A more promising contender is a classifier created by a Princeton University student during his Christmas break.

Edward Tian, a computer science major minoring in journalism, released the first version of GPTZero in January.

This app identifies AI authorship based on two factors: perplexity and burstiness. Perplexity measures how complex a text is, while burstiness compares the variation between sentences. The lower the values for these two factors, the more likely it is that a text was produced by an AI. We pitted this modest David against the goliath of ChatGPT. First, we prompted ChatGPT to generate a short essay about justice. Next, we copied the article – unchanged – into GPTZero. Tian’s tool correctly determined that the text was likely to have been written entirely by an AI because its average perplexity and burstiness scores were very low.

Fooling the classifiers An easy way to mislead AI classifiers is simply to

replace a few words with synonyms. Websites offering tools that paraphrase AI-generated text for this purpose are already cropping up all over the internet.

Many of these tools display their own set of AI giveaways, such as peppering human prose with “tortured phrases” (for example, using “counterfeit consciousness” instead of “AI”).

To test GPTZero further, we copied ChatGPT’s justice essay into GPT-Minus1 – a website offering to “scramble” ChatGPT text with synonyms. It altered about 14% of the text.

We then copied the GPT-Minus1 version of the justice essay back into GPTZero. Its verdict?

“Your text is most likely human written but there are some sentences with low perplexities.”

It highlighted just one sentence it thought had a high chance of having been written by an AI, along with a report on the essay’s overall perplexity and burstiness scores which were much higher Tools such as Tian’s show great promise but they aren’t perfect and are also vulnerable to workarounds.

For instance, a recently released YouTube tutorial explains how to prompt ChatGPT to produce text with high degrees of – you guessed it – perplexity and burstiness.

Watermarking Another proposal is for AI-written text to contain a “watermark” that is invisible to human readers but can be picked up by software.

Natural language models work on a word-by-word basis. They select which word to generate based on statistical probability.

However, they do not always choose words with the highest probability of appearing together. Instead, from a list of probable words, they select one randomly (though words with higher probability scores are more likely to be selected).

Continued on page 13

Mar 3, 2023 Issue 5

Events

Briefs Privacy watchdog explores biometrics code Privacy Commissioner Michael Webster is exploring how a code of practice might better regulate the collection, use and storage of people’s most sensitive and personal information as concern about biometric technologies continues to grow.

This follows the privacy watchdog’s recent consultation on whether more can be done to ensure agencies are complying with the Privacy Act in relation to biometric information.

While there were mixed views from submitters on the most appropriate type of intervention, “what was clear is that something more needs to be done”, Webster says. “The use of biometrics is growing and diversifying.

We want to ensure New Zealanders and New Zealand businesses can harness the benefits of this technology, but also be protected from potential harm.” The Privacy Commissioner will engage with agencies and people interested in biometric information and technologies before deciding in 2024 whether to press ahead with a code. ■

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.

Featured events

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Newly Suited Fiesta Thursday 9 March 5.30 – 7pm Ghost Donkey, Commercial Bay Level 2/1 Queen Street, Auckland CBD Learn more

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FEATURED CPD

FINAL NOTICE

VARIOUS AREAS ALL LEVELS WORKSHOP

Assessing capacity workshop Workshop 3 CPD hours Tuesday 7 March 9am – 12.15pm Price from $350 +GST Facilitators Alison Douglass, barrister 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.

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FINAL NOTICE

Reviewing international trust cases

Webinar 1 CPD hour Thursday 9 March 12pm – 1pm Price from $80 +GST Presenter Rebecca Rose, barrister, Bankside Chambers

This webinar will examine recent cases from key international jurisdictions and developing themes and trends in the New Zealand context. It will benefit civil litigators, trust lawyers, legal executives and anyone with an interest in trust law.

TRUSTS ALL LEVELS WEBINAR

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Traffic law update: case law and procedure CRIMINAL ALL LEVELS SEMINAR

In Person | Livestream 2 CPD hours Tuesday 14 March Price from $140 +GST Presenters Dr Roderick Mulgan, barrister, Rubicon Chambers and Samira Taghavi, barrister and practice manager, Active Legal IN PERSON

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Focusing on recent case law, procedure and applicable legislation, this seminar will give lawyers a useful overview and update on topical issues.

Chair Judge Claire Ryan

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How to lead a team (Auckland workshop)

Workshop 4 CPD hours Thursday 16 March 9am – 1.15pm Price from $400 +GST Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

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This four-hour Auckland workshop distils proven and emerging team leadership best-practice into a practical ‘how-to’ guide.

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ALL AREAS INTERMEDIATE WORKSHOP

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The value of an actuary GENERAL PRACTICE INTERMEDIATE SEMINAR

Seminar | 1.5 CPD hours Price from $110 +GST Presenters Bernie Higgins, consulting actuary, Bernie Higgins & Associates Limited and Peter Davies, consulting actuary, Davies Financial & Actuarial Limited

Understand the actuarial valuation process for relationship property and estate assets, along with the potential variables and complexities that often arise.

Chair Judge Andrea Manuel

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Dealing with the media ALL AREAS ALL LEVELS SEMINAR

In Person | Livestream Tuesday 4 April 4pm – 6.15pm Price from $140 + GST Presenters Justice Simon Moore; Julie-Anne Kincade KC, Blackstone Chambers; Edward Gay, reporter, Stuff and Hannah Norton, journalist, NZ Lawyer and HRD Singapore

IN PERSON

What role do the media play in legal cases? How should lawyers engage with journalists? How do the courts balance and manage competing interests?

This seminar will offer some clarity around such questions with perspectives from media, counsel and the bench.

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Offices Available

WILL INQUIRIES

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

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

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

Senior Lawyer We are a friendly full-service law firm in Central Auckland focusing on the legal needs of people in business and their families. Our firm has been established for a long time and the work is varied and interesting. We represent mid-size companies and long-established private clients. One of our senior lawyers is retiring soon and we are looking for someone to replace him. We are ideally looking for someone with 8+ years’ PQE experience in property and commercial law in New Zealand.

We are happy to discuss flexible working arrangements.

Please email Victor Mechkov at victor@staintonchellew.co.nz or phone 09 300 5859

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Mar 3, 2023 Issue 5

Continued from page 05

the most appropriate to apply. Such a question has to be considered from the perspective of both parties. In any event, New Zealand law is currently pleaded in the Australian proceeding so the plaintiffs could still get the advantage of any differences.

■ a2 would face significant cost burdens defending multiple class actions in two jurisdictions (despite its size and resources).

■ Allowing the proceedings to continue in one jurisdiction would promote the goals of efficiency and cost-saving in the Trans-Tasman Proceedings Act. ■ The judge noted that access-to-justice concerns were important but did not “confer an unfettered licence to litigate” and must be balanced against other interests such as proportionate use of public resources, public confidence in courts, predictability, certainty and finality of litigation.

The judge considered any intrusion on access to

justice was “very low” as the class members had other options, including to participate in the Australian proceeding.

■ The comparative benefits of the funding arrangements between the two class actions were said to be matters for the plaintiffs to assess and determine for themselves and were largely put aside in the judge’s consideration.

Weighing those factors, the judge ordered a stay of proceedings with leave for the plaintiffs to apply to lift the stay if there was a material change in circumstances.

The judgment is a welcome clarification of the way the New Zealand courts will manage a class action when there is a similar class action on foot in Australia.

That is particularly relevant as we expect to see more of these competing class actions in the future. ■

Continued from page 08

paraphrasing tools, which might insert blacklisted words or rephrase essay questions.

This explains why users get a different output each time they generate text using the same prompt.

Put simply, watermarking involves “blacklisting” some of the probable words and permitting the AI to select only words from a “whitelist”. Given that a human-written text will likely include words from the “blacklist”, this could make it possible to differentiate it from an AI-generated text.

However, watermarking also has limitations. The quality of AI-generated text might be reduced if its vocabulary were constrained. Further, each text generator would likely have a different watermarking system so text would need to be checked against all of them.

Watermarking could also be circumvented by

Ongoing arms race

your AI-generated assignment to get it past the detectors.

There are no easy answers here for educators.

Technical fixes may be part of the solution but so will new ways of teaching and assessment, which may including harnessing the power of AI. We don’t know exactly what this will look like.

However, we have spent the past year building prototypes of open-source AI tools for education and research in an effort to help navigate a path between the old and the new – and you can access beta versions at Safe-To-Fail AI. ■ Armin Alimardani is a lecturer at the University of Wollongong and Emma J Jane is an associate professor at UNSW Sydney ■

plaintiff (Whyte) and a majority of the class resides in New Zealand and that a2 was incorporated in New Zealand, with its registered offices and manufacturing base in New Zealand.

Instead, the High Court determined that the Victorian Supreme Court was the more appropriate court including because: ■ The proceedings were substantially similar and the Australian proceedings were filed first. The judge noted that the “first in time consideration” was “not determinative” but did carry weight.

■ Both claims had the same defendant and affected shareholders.

■ The relevant law was similar in New Zealand and Australia. That the New Zealand law on continuous disclosure might be more plaintiff-friendly was not enough to suggest the New Zealand law was

AI-generated text detectors will become increasingly sophisticated. Anti-plagiarism service TurnItIn recently announced a forthcoming AI writing detector with a claimed 97% accuracy.

However, text generators will also grow more sophisticated. Google’s ChatGPT competitor, Bard, is in early public testing. OpenAI itself is expected to launch a major update, GPT-4, later this year.

It will never be possible to make AI text identifiers perfect, as even OpenAI acknowledges, and there will always be new ways to mislead them.

As this arms race continues, we may see the rise of “contract paraphrasing”. Rather than paying someone to write your assignment, you pay someone to rework

Sophie East is a partner and Tim Shiels is an associate at Bell Gully ■

The above was first printed in The Conversation and is republished with permission

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