LawNews- Issue 6

NEWS Mar 10, 2023 Issue 6

Inside ■ ELECTIONS

Meet the new ADLS President Tony Herring P05

■ OPINION

Do we need barristers?

P08-09

When vaccine mandates collide with employment adls.org.nz

LAW

Contents 03-04 COURTS MANDATES COVID-19

What happens when vaccine mandates collide with employment law?

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

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Jack Porus: 50 years with Glaister Ennor

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Does a split legal profession still make sense?

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Mar 10, 2023

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Issue 6

EMPLOYMENT LAW

How the vexed issue of vaccine mandates is playing out in the courts A lingering question is the extent to which employers must explore all other reasonable alternatives to dismissing unvaccinated employees

Reweti Kohere A body of useful legal precedent is emerging from the controversial covid-19 vaccine mandates, although key questions remain unanswered as companies and workers are reminded of the need to maintain good faith in their employment relationships.

How far employers must explore “all other reasonable alternatives” to dismissing unvaccinated employees and the extent to which tikanga forms part of Aotearoa New Zealand’s employment law, are outstanding concerns.

However, lawyers and employers and employees may soon get answers on the tikanga issue. The Employment Court is yet to hand down its decision in an appeal against an Employment Relations Authority (ERA) determination on whether employers are justified in dismissing their employees for refusing to be vaccinated against covid-19.

GF v New Zealand Customs Service arose in response to the government’s now-revoked Public Health Response (Vaccinations) Order 2021 as the plaintiff was a public sector employee. GF lost in the ERA, which found Customs’ actions were justified as it followed due process.

GF appealed, arguing among other things that Customs failed to act in line with its own whanonga pono, or values, and with other tikanga principles relevant to their employment relationship.

Blinkered employers who dismissed unvaccinated employees with imprudence and impatience are now suffering the financial consequences of their actions “It is common ground that this aspect of the claim raises relatively novel and developing issues within the employment law context,” said Employment Court Chief Judge Christina Inglis, who drew the proceedings to the attention of a handful of potentially interested parties, including Te Hunga Rōia Māori o Aotearoa.

The Māori Law Society applied for, and was granted, intervener status. Neither the plaintiff, whose name remains suppressed, nor NZCS opposed the intervention.

The substantive hearing of the appeal concluded at the end of January. Until judgment is issued, the wider, practical implications of GF’s tikanga question remain unclear, says Auckland University law lecturer Simon Schofield.

Alternatives Another lingering question for Schofield, a member of the ADLS Employment Law Committee, is the extent to which employers must explore all other reasonable alternatives to dismissing unvaccinated employees, under clause 3(4) of Schedule 3A to the Employment Relations Act 2000.

“Indeed, the boundaries of the requirement…are proving increasingly difficult to pin down,” he says.

Clause 3(4) of Schedule 3A, which deals with provisions relating to covid-19 vaccinations, states an employer must ensure all other reasonable alternatives, which wouldn’t lead to termination of an employee’s employment agreement, have

Continued on page 04 03

Continued from page 03

been exhausted.

What those alternatives look like could include employees taking annual holiday and unpaid leave or working from home, as in the Hoyle v HealthcareNZ case.

But Schofield says there is scope for the courts to accept other options, including redeployment, retraining, early retirement, job sharing, secondments and even re-employment.

“Blinkered employers who dismissed unvaccinated employees with imprudence and impatience are now suffering the financial consequences of their actions.”

Fishhooks Simon Schofield

Several key themes have emerged from vaccine mandate cases where employees have succeeded in proving their dismissal was unjustified

Several key themes have emerged from vaccine mandate cases where employees have succeeded in proving their dismissal was unjustified.

Good faith is explicitly legislated for in the Employment Relations Act: s 4 requires parties to an employment relationship deal with each other in good faith and they must not mislead or deceive.

In Hoyle v HealthcareNZ, decided last month, the plaintiff didn’t share the full extent of her medical reasons for refusing to be vaccinated. ERA member David Beck found her conduct contributed to the circumstances leading to her eventual dismissal and undercut her “reciprocal duty to act in good faith”.

Conversely, Healthcare NZ breached its good faith obligations in failing to explore the possibility of taking up Hoyle’s offer of working from home. While Hoyle, working in a community outreach role, accepted it was desirable to have face-to-face contact with adults seeking mental health assistance, “an adaption to her working approach could have been accommodated, at least on a temporary basis and regularly reviewed”, Beck said. The failure was just one of several the authority member identified as not justifying the dismissal.

Parties to an employment relationship are also on notice about the consequences of a lack of diplomacy. In Laursen v Coldrite Refrigeration & Air Conditioning, also decided in February, the applicant said the company’s managing director had told him he had been “brainwashed and read too much

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Parties to an employment relationship are also on notice about the consequences of a lack of diplomacy

bullshit on the internet”, at a meeting that authority member Michael Loftus described as having “degenerated into a standoff”.

Following the “fractious” meeting, the applicant sent a text that claimed the managing director had spread lies about him. The managing director argued the text made him conclude there was no option but to abandon the discussion about potential redundancy and dismiss. He then sent an “injudicious” email to the plaintiff, which Loftus compared more to a disciplinary infraction than confirmation of a possible redundancy.

“A disciplinary infraction would again require a discussion prior to the decision to dismiss, yet there is no suggestion these concerns were raised let alone discussed,” Loftus said.

Laursen ultimately succeeded in his personal grievance.

Insufficiently flexible Schofield says an argument also exists that Schedule 3A isn’t flexible enough as it could have given unvaccinated employees the option of taking a period of protected unpaid pandemic leave.

“In New Zealand, there is discrete employment protection from dismissal for those taking parental leave and voluntary service or training in the armed forces,” he says.

“A variation on that theme is that such unvaccinated employees who were dismissed could have had the right to elect to be re-employed at a later time if that was practicable and reasonable for the employer,” he says.

With the removal of government vaccination mandates, many such employees were indeed reinstated. But such options should be more explicit in the legislation as accrued benefits may have been lost. ■

Mar 10, 2023 Issue 6

ADLS

Meet incoming ADLS President Tony Herring If we have the ear of the people who make the rules – the politicians or cabinet or select committees or whatever it is – then we’re much more influential Reweti Kohere

Tony Herring

My vision is not only that we are a genuine national organisation that helps all our members on a day-today basis, but we are an absolute leader in representing our lawyers

“I’m good, I’m good. I’m sweaty,” confesses incoming ADLS president Tony Herring. “I know you don’t need to know that but I’ve been racing around.”

That’s not surprising. Since learning at the ADLS annual general meeting last Thursday that he’d won the vote and would succeed outgoing president Marie Dyhrberg KC, Herring hasn’t yet had time to let the election result sink in.

A commercial and property partner at Gibson Sheat, he flew back to Wellington the morning after the AGM, shot up to Thorndon for a client meeting and, having returned to his office, is now telling a journalist he’s sweaty.

And he won’t get time to catch his breath over the weekend, either. On Sunday, he sets off for Antarctica, the driest, coldest and windiest continent on Earth, to run his 20th (and last) marathon – a swansong that’s three years overdue.

The many parts of his life have all come to a head, Herring says.

“It’s been a funny old time because I’ve been focused on this marathon for so long. I’ve been trying to organise my life around my training and then I’ve been trying to campaign to be president of ADLS for a while and trying to keep my day job as well.” he says.

Marathon man Herring should’ve ticked off the Antarctic marathon already, had the global pandemic not scuppered his plans in early 2020 when the marathon was cancelled just days before he was set to depart.

As he told LawNews at the time: “Eighteen weeks of training during the New Zealand summer for a bitterly cold adventure marathon in one of the most forbidding environments on the planet had come to nought.” Luckily, he’s been given a second chance.

Herring took up long-distance running 10 year ago after falling from a first-floor balcony and breaking his neck. Since then, he’s completed the world’s six major marathons on six continents and is chasing his seventh – and last – long-distance run.

“You can commit this in writing if you want. This is my last.

It’s just too hard and I’m getting too old,” he says. “I’m going to

retire victoriously.”

He’ll have his work cut out. Any marathon is a slog, let alone completing a big run in one of the most inhospitable environments on the planet. Herring’s best-case scenario on race day? A fine, sunny day with no wind. If the wind exceeds 24 knots, the entire 42km race might be shifted from the ice to the deck of the competitors’ holding ship, a scenario that happened nearly 20 years ago, he says.

“The wind is key for me. I don’t mind running in the cold – I’ll have plenty of layers on. It’s the wind, because the wind will not only make it potentially precarious in getting back to the ship, but it will just make [the race] harder.”

The frozen continent still beckons. The three-day voyage begins in Buenos Aires, followed by chartered flight to the resort town of Ushuaia, nicknamed the “End of the World” for its location on the southernmost tip of South America. Herring will then board the Ocean Victory, a vessel purpose-built to tackle polar waters, and traverse the Drake Passage, considered one of the world’s most treacherous voyages with travellers contending with 12-metre swells. By Sunday week, the marathon will have taken place. And afterwards, a week of sight-seeing.

“It’ll be an amazing trip, but I just need to get the marathon out of the way,” Herring says. After completing the race, he suspects he’ll be emotional, much as he was on finishing his first marathon, in Christchurch.

“This will be the culmination of an awful lot of effort and an awful long time of running. And to do the seven continents and the six world marathon majors is just, for me, such a special achievement.

“It wouldn’t surprise me if there’s a few tears crossing the finish line. They’ll freeze, of course.”

Fresh eyes, new name Once he returns home, a new set of ADLS councillors will await him around the table. Four councillors – Chris Eggleston, Craig Fisher, Andrew Skinner and Ellen Snedden – are departing. They will be replaced by Martelli McKegg litigator Telise Kelly, criminal

Continued on page 16 05

PROFILE

Jack Porus: the business of running a law firm

I found my way into a firm that was very receptive to me changing my role over time and getting into that business area that I really hankered for right at the beginning

Jenni McManus Jack Porus never particularly wanted to be a lawyer. And his mother, of Lithuanian Jewish stock, would have preferred him to be a doctor.

But Porus, the former managing partner at Glaister Ennor and one of the country’s top property lawyers, instead had a hankering for business. So, he turned down a place at Auckland medical school, telling his mother he was enrolling for a commerce degree.

But Mrs Porus, a holocaust survivor who emigrated to New Zealand in 1949, was a strong woman. “She said ‘if you’re not going to be a doctor, at least be a lawyer’, Porus says. “So, the compromise was that I did both.”

But after two years at university, Porus was still hankering 06

for the “real” world. He was offered part-time work in the tax department of accounting firm Barr Burgess and Stewart and sought advice from his Uncle Bob. “Uncle Bob”, who was married to Porus’ mother’s sister, happened to be Bob Narev, a commercial stalwart at law firm Glaister Ennor. Narev had a much better idea: the accounting job was a good position, he told Porus, “but we’d rather hoped you’d come and join us here”.

Another holocaust survivor, Narev had been a father figure to Porus, who was only 12 when his father died. He was tempted by the Glaister Ennor role, but it was fulltime and he still had several years’ study ahead. And law school dean Jack Northey was known to disapprove of students working parttime while at university.

But Northey, to his surprise, gave him the green light.

“Because it was Glaister Ennor, he said I’d better take it,” Porus says.

A fulltime job alongside fulltime study was very full-on, Porus says. But 50 years later, he is still at Glaister Ennor.

And not just at the same firm but in exactly the same Norfolk House offices on Auckland’s High St, deep inside what was once the heart of Auckland’s legal community.

Part of his decision to join the firm was its reputation. “It was busy, but I got through it and realised when I came here what a privilege it was because [firm founder] Stuart Ennor was very highly regarded as a litigator and Bob Narev was very highly regarded as a commercial lawyer.

Also in the line-up were Peter Woodhouse (the son of former Court of Appeal President and ACC architect, Sir Owen Woodhouse) and Paul Davison (the son of former Chief Justice Sir Ron Davison). “So clearly if those very prominent jurists felt that this was the place for their sons to be, then I couldn’t go too far wrong.”

The businessman Because he was so interested in business, Porus immediately took an interest in the way the firm was managed.

And one of the first things he noticed on his arrival in 1972 was the complete lack of electronic equipment in the office (though he eventually found a dictaphone buried at the back of a cupboard). Secretaries took oral dictation and the firm’s

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Mar 10, 2023 Issue 6

Continued from page 06 accounting was done with adding machines and big, bound books. Fax machines (now all-but-obsolete) were yet to be invented.

Porus says his colleagues recognised his interest in the business of the law. By his mid-20s, he’d made partner and was appointed managing partner not long after that. His contemporaries, however, didn’t enjoy such a meteoric rise.

“I was a bit of a rarity,” he says. “Because I worked fulltime and studied fulltime, by the time I graduated I already had an enormous amount of experience. So, I actually realised my dream. I ran a business. It just happened to be a legal business.

It was a fortuitous appointment. Soon after, Porus found himself enmeshed in a profession that was about to undergo a major restructure. Lawyers until the late 1970s-early 1980s tended to be groups of professionals working together, almost as co-operatives. Much of their work focused on conveyancing, supported by a scale of minimum fees. But when this scale was abolished, lawyers were forced to compete in a more businesslike way.

Porus says the conveyancing scale had been a major support for the financial stability of legal practices and once it was scrapped, the immaturity of the marketplace became clear.

“You saw lawyers under-cutting each other in an effort to grab business and you got ‘kitchen-table lawyers’ who were working out of their homes,” he says. Inner-city practices suffered as clients became reluctant to come into town when lawyers were setting themselves up in the suburbs. “It was quite a challenging period for legal practices.”

Many lawyers struggled, leading to the mergers of law firms from the mid-1980s. Some businesses ceased to exist, but Glaister Ennor resisted the temptation to merge and turned

down invitations from several players. “It turned out to be the right strategy because a lot of the mergers didn’t succeed,” Porus says. “We just concentrated on continuing to drive our practice forward.”

The firm decided to compete on expertise rather than price. “So instead of focusing on everyday conveyancing, we moved into land development which required greater expertise and there wasn’t the same pressure on fees.” It also began to develop expertise in areas like trusts and estates, commercial property, family law and litigation and put great store on developing and preserving relationships with clients.

“Many of the firms became very transactional,” Porus says, focusing on speed and efficiency rather than building long-term relationships. “We adopted the philosophy that the transaction may end but the relationship continues. So, we were very much a relationship-based practice and we’ve continued in that way to the present day.

“It translates into all sorts of things – for example, we never argue about fees. If a client is unhappy with a transaction or the level of fees you charge, just resolve it and move on because the relationship is more important than that transaction.”

Narvev, Porus says, put it well: ‘We are a firm with a large number of clients rather than a number of large clients.’ “We did later get a number of large clients, but the basis of this firm is looking after a large number of clients who are everyday people…. the grassroots of it all was just us looking after families and their needs.”

Porus was also instrumental in setting up Glaister Ennor’s mortgage securitisation practice. Common in the 1990s, these initially involved contributory mortgage lending, using a law firm’s nominee company. The firm would amalgamate funds from clients who wanted to invest and lend it to others to buy

They’ve allowed me to move from domestic conveyancing into commercial law work and then into commercial property and into my directorships which has enabled me to change my career but stay in the same place

Continued on page 17

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LEGAL PROFESSION

Do we need barristers?

In the first of a three-part series, British KC Professor Leslie Thomas questions the need for a split legal profession, arguing the reasons for the rigid distinction between barristers and solicitors are largely historical Professor Leslie Thomas KC England and Wales have a split legal profession, with a traditional distinction between solicitors and barristers. This contrasts with many other countries, including many in the common law world, which have only one type of lawyer.

England and Wales are of course not the only place to have a split profession. Some jurisdictions have split professions based on the English model, such as Northern Ireland and the Republic of Ireland. And in other countries split professions evolved separately. For example, in South Africa, whose law is a mix of English and Roman-Dutch influences, there is a split profession but the branches are called attorneys and advocates. And some civil law systems have a split between advocates and notaries.

However, many jurisdictions whose law is derived from English law have abandoned the split profession. For instance, in the islands of the Eastern Caribbean, where I practise, and many countries in the Commonwealth, there is no longer any division between solicitors and barristers. All lawyers are admitted as attorneys and perform the functions of both solicitors and barristers.

So, what’s the difference between a solicitor and a barrister?

Traditionally, in England, solicitors had a monopoly on the “conduct of litigation”. That meant taking steps like issuing proceedings in court on behalf of their client, filing documents with the court and paying court fees.

Barristers were not allowed to conduct litigation, nor were they allowed to handle client money. Conversely, barristers had a monopoly on the right of audience in the higher courts – that is, the right to argue cases in court. Although solicitors were allowed to argue before the Magistrates’ Court and the County Court, only barristers were allowed to argue before the Crown Court, the Court of Appeal, the High Court or the House of Lords.

Another tradition was that clients did not instruct barristers directly. Clients instructed solicitors, who in turn instructed barristers to argue on their behalf. The relationship of client with barrister was also different from the relationship of client with solicitor. Originally, a barrister could not be sued for professional 08

Many jurisdictions whose law is derived from English law have abandoned the split profession

negligence in representing their client, whereas a solicitor could.

And a barrister could not sue the client for unpaid fees, whereas a solicitor could.

In the past few decades, many of these things have changed.

Solicitors can now qualify as solicitor-advocates, which gives them a right of audience in the higher courts. Many barristers are now qualified to accept instructions directly from clients through the Bar Public Access Scheme and a small number are now qualified to conduct litigation. And barristers can now be sued for negligence and can sue solicitors for their fees.

The differences However, it remains the case that the working life of a typical barrister and a typical solicitor are quite different. Most barristers are self-employed and work in chambers (a posh word for a collection of rooms in an office) which are not firms but are associations of individual self-employed barristers.

By contrast, most solicitors work in firms, either as employees or as partners with other solicitors. Most barristers still get the bulk of their work through instructions from solicitors, not clients directly. And most barristers still carry out a lot more courtroom advocacy than most solicitors do. But this is a generalisation and there are exceptions. Even solicitors who aren’t solicitoradvocates can carry out advocacy in the lower courts and the tribunals, and some solicitors spend a lot of their working lives carrying out advocacy.

In addition to conducting litigation, many solicitors spend a lot of time on non-litigious work. This includes tasks such as drawing up and advising on contracts and carrying out conveyancing.

But again, this is a generalisation and there are also some barristers who spend a lot of time on non-litigious work. And to make it even more complicated, there are also employed barristers, some of whom work in-house for companies and government departments, while others work in law firms

Continued on page 09

Mar 10, 2023 Issue 6

Continued from page 08 alongside solicitors.

So, it isn’t easy to summarise the difference between solicitors and barristers for a lay audience. Sometimes people use the shorthand of saying that solicitors are “generalists” and barristers are “specialists”. But this is not really accurate: some solicitors have highly specialised practices and some barristers have generalist ones.

And any statement we might make about the differences between the two professions is inevitably subject to exceptions.

In short, the difference between solicitors and barristers is often confusing for the general public.

In this series, we will look at the history of the split profession, why it exists, its advantages and disadvantages and whether we still need it in the modern world.

The history To understand why we have a split legal profession today, we need briefly to dive into the history of the English legal system.

Today we are familiar with the two traditional branches of the profession, solicitors and barristers, but at one time there were five: attorneys, solicitors, barristers, proctors and advocates.

From its inception in the 13th century, the legal profession in the common law courts of England was divided into two branches. The first branch was the pleaders, the forerunner of modern barristers. The leaders of this profession were called the serjeants, which came from the Latin servientes regis ad legem, or “servants of the King at law”.

Junior members of the profession were originally called “apprentices at law”. They began to congregate in “inns”, which developed into the Inns of Court, the professional societies for barristers which still exist today. Their role was to speak for their client in court and argue their client’s case. By the 17th century, the term “barrister” came into general use in place of the older “apprentice at law”.

The second branch was the attorneys. “Attorney” originally means “agent”, which is why we still use the term today in a different context to refer to non-lawyers, when a person is given a “power of attorney” to handle another person’s affairs.

Attorneys acted as agents for their client in the conduct of litigation, in contrast to barristers, who only spoke for the client in court.

Until the middle of the 16th century, practising attorneys were allowed to join the Inns of Court and the division between apprentices at law and attorneys was not rigid. However, the division became increasingly rigid in the 16th century, when the Inns of Court began to exclude practising attorneys and relegate them to a different set of Inns, the Inns of Chancery. The Inns of Chancery have since faded into history but you can see their legacy in some place names in the City of London, such as Barnard’s Inn and Furnival’s Inn. By the end of the 18th century, the policy of excluding practising attorneys from call to the Bar was well established.

It remains the case that the working life of a typical barrister and a typical solicitor are quite different

So, by that stage there was a clear division between the two professions.

They were also regulated differently. Attorneys were officers of the court and were regulated strictly by the court, often being harshly punished for minor breaches of the rules. By contrast, barristers were principally regulated by their own professional bodies, the Inns of Court, as well as by restrictive rules of professional etiquette.

Solicitors Another legal profession which grew up alongside the attorneys and barristers was the solicitors. By way of background, from the late Middle Ages until the 19th century, there was a separation between the courts of common law and the courts of equity.

The Court of King’s Bench and the Court of Common Pleas administered common law, which tended to be rigid and rule-bound. The Court of Chancery, presided over by the Lord Chancellor, administered equity which tended to be more flexible and less rigid. Solicitors did the same kind of work in the Court of Chancery that attorneys did in the courts of common law. We can see the legacy of this divide in the structure of the High Court today, which still has a King’s Bench Division and a Chancery Division.

To make it even more confusing, there were also two more legal professions: proctors and advocates. These lawyers practised in the ecclesiastical and admiralty courts. The ecclesiastical courts had jurisdiction over probate and divorce as well as church matters, while the admiralty courts had jurisdiction over shipping matters.

Those courts administered civil law, which was derived from Roman law, rather than English common law. Whereas common law was taught at the Inns of Court, Roman law was taught at the universities of Oxford and Cambridge. The advocates had their own professional society, called Doctors’ Commons, which was immortalised in Charles Dickens’ novel David Copperfield.

Consolidation During the 19th century, there was a process of consolidation of the courts and legal professions. In 1857, Parliament created the Court of Probate and Court for Divorce and Matrimonial Causes, where barristers could practise, meaning the advocates of Doctors’ Commons lost their monopoly over probate and divorce. Most proctors thereafter joined the ranks of the solicitors, and Doctors’ Commons died out in the late 19th century.

Another big change came with the Judicature Act 1873, which merged the superior courts of common law and equity into a single High Court as we know it today, which administers both common law and equity. That Act also merged the professions of attorney and solicitor into one and provided that both should be known as solicitors. That remains the case today.

■ Next week: How the Bar developed Professor Leslie Thomas KC is a lecturer at Gresham College in central London 09

NEW BOOK

Ongoing controversy about insanity defence spawns new text On 24 February 2023, a new text The Insanity Defence: International and Comparative Perspectives, edited by Professors Ronnie Mackay and Warren Brookbanks, was launched in the Bingham Room, Gray’s Inn, London.

In her opening remarks, Baroness Brenda Hale of Richmond spoke of the ongoing controversy surrounding the M’Naghten Rules and so-far fruitless attempts at reform by the England and Wales Law Commission.

Baroness Hale spoke of the negative press the insanity defence has received in countries like the USA, after John Hinckley’s acquittal, and in Norway, following the conviction of Anders Breivik for killing 77 people in Oslo in 2011. She said the defence has also provoked political interference in some

10

jurisdictions, noting New Zealand’s recent amendment of the insanity verdict.

Baroness Hale praised the broad, international scope of the book and said she hoped it would lend weight to law reform in jurisdictions where insanity is under the spotlight.

In his supporting comments, Professor Andrew Ashworth spoke of Mackay’s status as the leading authority on mental state defences in the UK and the immense contribution he has made to scholarship in this area.

Although Mackay has not yet succeeded in changing the insanity defence rules in the UK, his efforts had achieved some success in other jurisdictions, notably the Channel Island of Jersey, where his recommended version of exculpatory

insanity has now been formally incorporated into Jersey law.

The editors say they hope the new text will encourage discussion and debate about the insanity defence in jurisdictions where difficult issues of the scope and definition and relevant disposal options are unresolved.

The book launch was linked to an event organised by the Montfort University of Leicester to celebrate Mackay’s 50 years of teaching and service and his unrivalled contribution to the development of mental health law in the UK. The new text is the sequel to Mackay and Brookbanks (eds) Fitness to Plead: International and Comparative Perspectives (OUP, 2017). ■

Mar 10, 2023 Issue 6

Briefs

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

Chief Justice intervenes In a rare move, the chief justice has warned MPs their planned resource management law reforms will hit the judiciary’s workload and resources, potentially denting public confidence in the courts.

By convention, the judiciary makes submissions to select committees only on matters relevant to its independence, the administration of justice, the operation of the courts, and the rule of law. The lengthy and complex Natural and Built Environment Bill has attracted such a response from the head of the judiciary, who told policymakers their scant consultation with judges would have an impact on their judicial functions. “[The Bill] has implications for access to the courts, the ability of the courts to perform the functions conferred on them, and the maintenance of public confidence in the courts,” Chief Justice Helen Winkelmann said in a written submission to Parliament’s environment select committee.

The Bill – one of three set to replace the Resource Management Act 1991 – dealt with issues that were “frequently litigated”, Chief Justice Winkelmann said. But the judiciary wasn’t aware of any analysis done by officials about whether the Environment Court would need more funding to handle an expected increase in workload. “The judiciary’s experience is that extensive legislative reform is usually followed by a period in which the meaning and effect of the new legislation is litigated through the courts.”

The environment select committee is due to report back by May 22. ■

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

Advertise your business Get your message in front of our readers comprised of nearly 6,000 lawyers, judges, poliicians and academics.

held such a document.

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ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

BARRY Desmond Joseph William • Late of Albany, Auckland • Married • IT consultant • Aged 54 / Died 05’02’23 CHU-LEE San Mui • Late of 30 Wiltshire Place, Somerville, Auckland • Housewife • Aged 81 / Died on or about 17’01’23 DANG Duong Man • Late of 75 Killarney Drive, Flat Bush, Auckland • Restaurant owner • Aged 67 / Died on or about 15’09’21 FENG Yu Bao Mike

Fax: (09) 309 3726

(09) 303 5270

MEEGOLLA Kasturi Achchige Sunanda Wijesiri • Late of 593 Glenfield Road, Totara Vale, Auckland • Married • Retired • Aged 74 / Died 04’01’23 PARK Younghak • Late of 1203-803,276, Jukjeon-ro, Suji-gu, Yongin-si, Gyeonggi-do, Republic of Korea • Aged 75 / Died on or about 01’10’21 WENTZEL Darcy Raymond • Late of 506/223B Greenlane Road West, Epsom, Auckland • Divorced and unmarried • Financial Advisor • Aged 48 / Died between 05’02’23 and 08’02’23

• Late of 15 Sunshine Lane, Flat Bush, Auckland • Aged 34 / Died on or about 22’09’22

Contact our account manager Darrell Denney M 021 936 858 E darrell.denney@adls.org.nz 11

FEATURED CPD

FINAL NOTICE

CRIMINAL ALL LEVELS SEMINAR

Traffic law updates and concerns 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 Solutions

FINAL NOTICE

How to lead a team (Auckland workshop)

Focusing on recent case law, procedure and applicable legislation, this seminar will give lawyers a useful overview and update on topical issues including dealing with drinking after driving, sentencing-related matters and alcohol interlock devices.

Chair Judge Claire Ryan

IN PERSON

LIVESTREAM

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

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

Limited spaces available

ALL AREAS INTERMEDIATE WORKSHOP

FIND OUT MORE

The value of an actuary: estate and RP assets ESTATES & RP ALL LEVELS SEMINAR

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In Person | Livestream 1.5 CPD hours Tuesday 21 March 4.30pm – 6pm 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

FIND OUT MORE

Mar 10, 2023 Issue 6

adls.org.nz/cpd

Stress management strategies GENERAL ALL LEVELS WEBINAR

Webinar 1.5 CPD hours Wednesday 22 March 1pm – 2.30pm Price from $110 + GST Presenters Georgina Patel, lead researcher, Law in Distress project and research associate AUT and Katie Gray, executive coach, co-founder and director of Coaching Advocates

cpd@adls.org.nz

09 303 5278

This webinar aims to raise awareness of stress-related issues in the profession, as well as providing strategies for managing and reducing these stressors.

Chair Joanna Trezise, senior associate, Russell McVeagh

FIND OUT MORE

Cultural reports and sentencing CRIMINAL ALL LEVELS WEBINAR

Webinar 1.5 CPD hours Wednesday 29 March 1pm – 2.30pm Price from $110 + GST Presenter David Harvey, retired District Court judge Chair Jo Murdoch, assistant public defender, Public Defence Service

This webinar will examine the history and development of s 27 reports and analyse key case law, culminating in the Court of Appeal’s 2020 decision in Carr and Anderson v R and the Supreme Court’s 2022 decision in R v Berkland. It will give an overview of the range of discounts applied by courts in sentencing and offer tips for lawyers for obtaining and using such reports when making submissions about discounts.

FIND OUT MORE

Engaging 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.

Chair Marie Dyhrberg KC

LIVESTREAM 13

Events Central Auckland Express Lunch Thank you to those who attended the Central Auckland Express Lunch at Dr Rudi’s

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Scott Russell and Nick Ravaji

Tony Herring and Marie Dyhrberg KC

Andrew Skinner and Chris Eggleston

Fairlie Milne, Oscar Ward and Katee Yukich

Kelly Cocks and Brooke Allan

Rebecca Selby and David van Hout

Mar 10, 2023 Issue 6

Briefs

Featured events

Connecting New Zealand lawyers

ADLS/REINZ Agreement for Sale & Purchase of Real Estate (ASPRE) Revision

Rotorua Lawyers’ Lunch

The ASPRE sub-committee is reviewing the current ASPRE, Eleventh Edition 2022 (2). This review will focus on changes introduced by the 2022 amendments to the Unit Titles Act 2010. If you have any feedback you would like the ASPRE sub-committee to consider, please email committee. secretary@adls.org.nz

Thursday 30 March 12 – 2pm The Regent Room, Ground Floor/1191 Pukaki Street, Regent of Rotorua, Rotorua

Property lawyer honoured

Learn more

West Auckland Lawyers’ Lunch Wednesday 5 April 12 – 2pm The Falls Bistro, 22 Alderman Drive, Henderson, Auckland

Property and resource management lawyer Thomas Gibbons, of Thomas Gibbons Law, has been made a Fellow of the Australian College of Strata Lawyers – the first New Zealander to receive this recognition. An expert in unit titles, easements and land management, Gibbons is the author of Unit Titles Law and Practice (2015). He also lectures in property, company and securities law at the University of Waikato. His Master dissertation in 2008 was on body corporate rules. ■

Learn more

NEW SHIPMENT

Hamilton Express Lawyers’ Lunch Wednesday 19 April 12.30 – 2pm The Bank Bar & Brasserie (Garden Bar), 117 Victoria Street, Hamilton Central

Author Iain Morley KC The Devil’s Advocate has quickly become the leading handbook and practical guide to advocacy in any adversarial courtroom, in any country, to be read and carried about by any advocate. (UK Title) “The book of my dreams, the Titanic of the advocacy world (even though it is modestly sized)...Iain Morley has bridged the gap between reading about advocacy and how you actually do it... [the book is] warmly welcomed and should be in every white wig box.”

Phillip Taylor, MBE Barrister at Law, in The Barrister “Quite simply [this] is the best book of its kind. Indeed, it is the only book of its kind… Buy this book. Study it. You won’t regret it.”

Professor AR Forrest, University of Sheffield, in Science & Justice Price for ADLS members $50.13 plus GST* Price for non-member lawyers $55.71 plus GST* (* + Postage and packaging)

Learn more

Upcoming May

Wellington Express Lawyers’ Lunch ADLS Annual Employment Law Dinner

June

North Auckland Lawyers’ Lunch Tauranga Lawyers’ Lunch

events@adls.org.nz

The Devil’s Advocate, 3rd Edition

adls.org.nz

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.

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Continued from page 05

If the wind exceeds 24 knots, the entire 42km race might be shifted from the ice to the deck of the competitors’ holding ship defence barrister Samira Taghavi and Shine Lawyers managing director Angela Parlane, who also ran for president. Criminal barrister Julie-Anne Kincade KC and cybersecurity consultant Michael Wallmannsberger will remain on the council.

Herring acknowledges the influx of new blood has its challenges.

“It won’t be seamless. It won’t be ‘let’s just carry on doing what we’re doing’ because it’ll take a meeting or two or three to learn where their skills are, what they’re interested in doing and what they might be able to get involved in. They’re not known quantities,” he says. “But fresh eyes always bring a new perspective and that’s exciting. They’ll be motivated to make the profession better, I would hope.”

The fact that ADLS has a president based outside of Auckland – for the first time in 144 years, Herring understands - is proof that the membership body is increasingly being perceived as truly nationwide. It’s ground Herring has broken before: when first elected to the council six years ago, he was ADLS’ first-ever nonAuckland councillor.

Turning that perception of serving all New Zealand lawyers into reality is the next challenge.

“My vision is not only that we are a genuine national organisation that helps all our members on a day-to-day basis, but we are an absolute leader in representing our lawyers through law reform, through select committees, through [our] committees, through the CPD that we offer,” he says.

That vision aligns with ADLS’ rebranding plans. Members attending the AGM were told the organisation wants to drop the “Auckland District” from its name because it doesn’t reflect the body’s national reach, excludes the 46% of members who live elsewhere in New Zealand and something more modern is needed. Members will be given the chance to vote on an

alternative.

Herring says he’s familiar with concerns from some members that much of the ADLS legacy might disappear with a name change and it’s a worry he shares. People he’s interacted with, including those who don’t work in the legal service industry, know about the organisation through its valuable webforms, such as the ADLS sale and purchase agreement for real estate.

But he acknowledges that ADLS must move on. “It’s 2023, we have to move on. A name is only a name. We’re not going to destroy everything we’ve built up.”

Wider issues Being a sought-after organisation with a seat at the table is Herring’s aspiration for ADLS. “Not only are we sought after by members who want to be members because of the great stuff we offer them, but we’re sought after by media if there’s a story because we’ve got such a good reputation. Politicians seek us out for our views on an issue before they embark on or are drafting policy.”

On some of the problems confronting the profession – access to justice, work culture and inclusion and diversity, to name a few – having influence will prove critical to finding a solution, Herring says. “If we have the ear of the people who make the rules – the politicians or cabinet or select committees or whatever it is – then we’re much more influential.”

Even before I push back on that, Herring has beaten me to the punch. “Power and influence – it sounds dangerous in a way,” he says, before explaining his aspiration for decision-makers to think of the organisation first when contemplating solutions.

Herring wants an ambitious future for ADLS. He just has to knock off that last marathon first. ■

Dealing with the Media Get multidisciplinary perspectives around roles and mechanics to help you and your clients be more comfortable when engaging with the media by attending this seminar In Person in Auckland or via Live Stream. .

Tuesday 4 April | 4pm – 6.15pm | 2 CPD Hours

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It wouldn’t surprise me if there’s a few tears crossing the finish line.

They’ll freeze, of course

Mar 10, 2023 Issue 6

Continued from page 07

connections and regarded him highly.

“I raised that money, with some was my own, and became a director of that company,” he says. Eventually he became chair of Pinnacle Life. commercial property.

All this has enabled Porus to remain interested in the law.

It could go horribly wrong: the most high-profile example “I’ve been very lucky,” he says. “I found my was two Upper Hutt lawyers, Patrick Renshaw We never way into a firm that was very receptive to me and Keith Edwards, who were jailed in the early changing my role over time and getting into that 1990s for stealing more than $29 million from argue about business area that I really hankered for right at clients. fees.

If a client the beginning.

But contributory mortgage lending was is unhappy “So, they allowed me to run Glaister Ennor “pretty standard stuff” for lawyers at the time, as a business which has enabled us to avoid the Porus says, and while it waned over the years, with a need to merge with others. We’ve just continued the past 12-24 months have seen a renewed transaction to grow. We’ve focused on being a mid-sized demand for second tier, non-bank mortgage or the level firm, we haven’t desired to be one of the really lending. big firms. We wanted people when they came in of fees you The director here to feel that it was still a warm, family-stye charge, just law firm. I think to a large extent we’ve achieved Alongside his legal work, Porus has held several resolve it and that, even though we’ve got a number of larger of significant directorships over the past 30 move on clients now. years.

“They’ve allowed me to move from domestic It began in 1990 when a client wanting to conveyancing into commercial law work and invest in New Zealand commercial property then into commercial property and into my directorships which instructed Glaister Ennor from Canada. Together, they built a has enabled me to change my career but stay in the same business that ultimately became the country’s largest listed place.” property company (Kiwi Income Property Trust).

That same year, Glaister Ennor was also asked to act for the Tiong family from Malaysia – the first foreign buyer of state The consultant forests in New Zealand. Porus has worked closely with this Porus turned 70 last year and is still going strong. Midway family ever since and it is now believed to be the third largest through 2022 he stepped down as managing partner and forestry investor in New Zealand. relinquished his partnership on 30 November. As a consultant Eventually, he became a director of Ernslaw One, the he still carries a full workload but is looking to manage things family’s New Zealand investment vehicle. The Tiongs also in such a way that “certain clients will be passed to others to bought the Neil Group – a land investment company that was look after but I will retain the larger ones”. formerly involved in housing. Again, Porus was asked to join the Free from the pressures of partnership, he says he’s board. enjoying the “eat-what-you-kill” lifestyle of a consultant where Next up, the family bought a shareholding in a small public he can work as much or as little as he likes. “I’m hoping the company, Regal Salmon. But the business was in trouble. release of that pressure enables me to pull back a bit on the Approached to invest more money, the family decided amount of work I’ve been doing.” to take over the company. Once again, Porus was deeply A top priority for him and his wife Lynn is travel. Both their involved, providing not just legal guidance but also business sons live in London and the couple has tended to spend a and operational advice. Eventually the company took over couple of months a year in the UK. another large seafood business, Southern Ocean Seafoods, Rotary has been another big interest where Porus was and amalgamated both to form NZ King Salmon, with Porus instrumental in rejuvenating the membership. “Basically, when as a director. Some years later the Tiongs decided to sell you walked into a Rotary club you saw a sea of white-haired half the business to private equity firm Direct Capital. Again, males and we needed to try to change that perception. We Porus helped with the sale. wanted to reduce the average age and create a greater diversity in the club, and we largely succeeded in doing that.”

The insurer Being Jewish is also a big deal for both Porus and his wife.

He is a member of the Auckland Hebrew congregation and About 10 years ago, a couple of young entrepreneurs visited was its honorary solicitor for about 10 years. “We feel very Porus, saying they’d developed a program that could deliver strongly Jewish but we’re not religiously Jewish,” he says. “We life insurance policies online – a world first. The pair had practise it in terms of [loving] to observe all the customs and approached Pinnacle Life and been told by the managing festivals. Many of closest friends are Jewish so we still feel director that they needed to raise $2 million to launch the very culturally Jewish but we’re not religious people.” ■ product.

Porus knew the managing director through his Rotary

I actually realised my dream. I ran a business. It just happened to be a legal business 17