LawNews - Issue 13

THIS WEEK’S ARTICLES

Issue 13 7 May 2021

Mandatory vaccination ruled in Australia p1

The life of Bryan: obituary for a former ADLS President p3

ADLS property law drafter puts down his pen pages 4 & 5

LawNews adls.org.nz

EMPLOYMENT LAW/HUMAN RIGHTS LAW

Australia rules on mandatory vaccination

By Liz Coats

A recent decision of the Australian Fair Work Commission (FWC) is timely as New Zealand employers consider whether they can require employees to be vaccinated against Covid-19.

Goodstart’s policy of mandatory flu vaccinations for its childcare workers was reasonable and lawful;

Bou-Jamie Barber, a teacher at Goodstart, had not been able to provide sufficient evidence of any basis for a medical exemption to that policy; and

her dismissal for refusing to be vaccinated in accordance with Goodstart’s policy was therefore not unfair.

Barber’s appeal against the Fair Work Ombudsman’s original decision, which was also in Goodstart’s favour, was therefore dismissed.

This decision has potentially significant implications for Australian employers who are considering mandating employees to receive a Covid-19 vaccination in response to the ongoing pandemic.

The employment law framework in New Zealand is different in several respects but many of the principles considered by the FWC are likely to be relevant for a New Zealand court considering whether a mandatory vaccination policy could amount to a “lawful and reasonable instruction”.

The facts Barber claimed she had been unfairly dismissed for refusing to get a flu vaccination in accordance with Goodstart’s policy requiring vaccination.

At the time, she was a lead educator at one of

Photo by Amornrat Phuchom / Getty Images

In Barber v Goodstart Early Learning (2021) FWC 2156 (20 April 2021), the commission found that:

Is mandatory vaccination a lawful and reasonable instruction?

If a similar case arose here, we consider the courts would evaluate whether a mandatory vaccination policy was “lawful and reasonable” by taking into account relevant factors

and employees about implementing a policy requiring flu vaccinations for all childcare workers and teachers unless they could provide evidence of a medical reason not to be vaccinated. Under this policy, flu vaccines would be provided to all employees at Goodstart’s expense, and the policy was consistent with medical and government guidance at the time.

Goodstart’s childcare centres.

Goodstart dismissed Barber for refusing to be vaccinated, having found that the information

In April 2020, when Covid-19 was at its peak in Australia, Goodstart consulted with its unions

Barber objected to the policy as she had led a “chemical-free life” and asserted she suffered from an auto-immune disorder that she treated with the support of naturopaths and dietitians. She feared an adverse reaction to any flu vaccination and maintained she could not be required to be vaccinated under the policy.

Continued on page 2

EMPLOYMENT LAW/HUMAN RIGHTS LAW

Australia rules on mandatory vaccination Continued from page 1

arose here, we consider the courts would evaluate whether a mandatory vaccination policy was “lawful and reasonable” by taking into account relevant factors including:

she supplied was not a sufficient medical reason to not be vaccinated and given its view that a flu vaccination was one of the inherent requirements of her role.

FWC’s decision The FWC acknowledged it was delivering this decision while “curiousity surrounding vaccination is at an unnatural high”. It stated its decision was “relative to the influenza vaccine in a highly particular industry”. It said it felt such a declaration was appropriate “given the climate we find ourselves in”.

whether the employer had conducted a risk assessment in accordance with the Health and Safety at Work Act 2015, to understand the nature and consequences of being exposed to Covid-19 and whether this was an acceptable risk;

In short, the FWC held that Barber’s dismissal was valid, “by virtue of [her] conduct in failing to comply with the lawful and reasonable direction of [Goodstart] to be vaccinated against influenza”.

In deciding the requirement to receive a flu vaccination was reasonable, the FWC noted the following factors: Goodstart had a statutory health and safety duty to ensure, so far as is reasonably practicable, the health and safety of Barber and its other employees. Goodstart also had a duty to ensure the safety of children under the care of its employees. Failure to comply with these duties could result in criminal liability for Goodstart.

Barber also had personal health and safety responsibilities under the health and safety legislation.

There were additional regulatory obligations unique to this particular workplace, in terms of health and hygiene practices with respect to the care of children.

Vaccination is a superior control measure, in conjunction with other control measures, for the risk of flu infection in a childcare environment where it can be particularly difficult to maintain social distancing or other hygiene practices.

The policy included appropriate exemptions for staff with a medical condition which made it unsafe for them to be vaccinated. Each medical exemption would be considered on a case-bycase basis.

the particular nature of the employer’s business and activities, and risks arising from those activities; and

the statutory duty of good faith and test for justification under the Employment Relations Act 2000 (ie, could a fair and reasonable employer in that employer’s circumstances impose such a policy?).

Liz Coats

Goodstart conducted thorough consultation with unions and employees about the proposed mandatory vaccination policy before it was implemented.

As to whether the policy was lawful, the FWC found the direction to be vaccinated was within the scope of Barber’s employment agreement with Goodstart and not otherwise illegal.

Potential implications This decision has received publicity in Australia where, understandably, employers and employees are considering its application to Covid-19 vaccination policies.

Given that the FWC expressly ringfenced the circumstances of the case by stating its findings specifically related to a mandatory flu vaccination policy in a childcare environment, it remains to be seen whether the FWC would apply the same principles and findings in relation to a Covid-19 vaccination policy in a nonchildcare environment.

In New Zealand, these questions have not yet been tested in relation to mandatory Covid-19 vaccination policies. However, if a similar case

LawNews

Editor: Jenni McManus

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

Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus, phone 021 971 598 or email jenni.mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney, phone 021 936 858 or email Darrell.Denney@adls.org.nz

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the New Zealand Bill of Rights Act 1990, which provides that any person has the right to refuse “medical treatment”;

Ultimately, we think the question would be whether an employer could lawfully and reasonably require that any particular role must be occupied by a vaccinated worker.

The answer to that question will be highly factspecific. If an employer terminated employment in reliance on any mandatory vaccination policy (where an employee refused to be vaccinated), we think it is likely the employer would need to show it had first considered alternatives to that outcome – for example, redeployment to some other role where the risks associated with Covid-19 were lower.

There is no single answer to the question of whether an employer can lawfully and reasonably require certain roles to be held by vaccinated employees. However, there will be certain specific employers and groups of employees where there is a stronger case to support a mandatory vaccination policy than others.

Liz Coats is a partner at Bell Gully. Rachael Brown (partner), Tim Clarke (partner) and Rosemary Wooders (senior associate) also contributed to this article

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 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.

LawNews Issue 13 | 7 May 2021

OBITUARY

Bryan Mahon: lawyer, soldier, scholar and father Former ADLS President Bryan Mahon died on Good Friday at the age of 97. The following is an abridged version of his eulogy, prepared and read at Bryan’s funeral by his eldest son, Judge Antony Mahon.

Robert Bryan Gladstone Mahon was born on 2 July 1923 in Auckland. He was the second child and only son of Leo Mahon and Jessie Frater. His late sister Cherry was born two years before him and Judith two years later.

In July 1927 Bryan’s life changed profoundly when his father, aged in his early 30s, was killed in a car accident. Bryan had just turned four and our grandmother was left as a young widow with three children under six.

Bryan, Cherry and Judith grew up in a home they called Black Rock, a villa which still stands at the intersection of Kitchener and Lake Roads and is commonly referred to as the Stables.

Notwithstanding their constrained financial circumstances, Bryan described his childhood as ‘living in a household pavilioned with his mother’s love’.

Bryan was devoted to his mother and had lunch with her nearly every day as his Takapuna law office was minutes from her home. Apart from two years overseas with the 21st Battalion during World War 2, Bryan lived within 10 minutes of his beloved Takapuna beach where he swam all year round until he failing sight in recent years meant that was no longer possible.

Cherry, Bryan and Judith attended Belmont School and Takapuna Grammar.

Takapuna Grammar opened in 1927 and when Bryan enrolled 10 years later there were less than 80 pupils.

He loved the academic and sporting side of Takapuna Grammar, a school which at the time nurtured several pupils who were to become iconic artists and sports people.

One was Bert Sutcliffe who played for the Takapuna Grammar 1st 11. Other pupils included Dennis Glover and ARD Fairburn. Frank Sargisson also lived in Takapuna and was a client of Bryan’s for many years.

Bruce Mason and his brother Tim also lived on Takapuna beach and were at school with Bryan. Bryan loved Bruce Mason’s play The End of the Golden Weather which is set on Takapuna beach and based on real characters.

Bryan left school at the end of 1939 and in 1940 started work as a clerk for Stewart & Johnson Solicitors in the central city, studying for his law degree at night. His first job every day was to fill the two ink wells, one with blue and other with red ink. In the winter he had to keep the office fires going.

When he turned 18 the following year, Bryan joined the First Auckland Infantry Battalion as a territorial, attaining the rank of sergeant. Then, in early 1944, he volunteered for overseas service but required his mother’s consent as he was not yet 21. My grandmother gave consent notwithstanding she had lost her brother Bob on Gallipoli in World War I. Bryan saw active service during the Italian campaign and returned to NZ in January 1946. He wrote a personal history of his experiences 50 years later.

The late Ian Anderson who had been at school with Bryan served in Bryan’s platoon and became a lifelong friend.

Bryan had studied French and Latin at school and soon acquired a fluency in Italian that meant he could act as trader of black-market goods (mostly spam and cigarettes) for food with the local Italians.

Bryan later served on the Auckland RSA executive and was an RSA President.

Like most returned servicemen he talked little about his time on the Front.

Rather, he focused on the friendships he had developed with the men with whom he served and the kindness and generosity of the Italian people.

Bryan developed a love for opera, Italian wine and food and often on a Sunday

Former ADLS President Bryan Mahon

Bryan loved the law and only fully retired when he was nearly 90 years old. night would sing Lilli Marlene in his tone-deaf tenor voice while he made us scrambled eggs.

The law In 1948 Bryan graduated and was admitted to the Bar. He was restless for change. He had read biographies of the great barristers like Sir Patrick Hastings and Henry Carson and aspired to be a court lawyer, an opportunity not offered at Stewart and Johnson where he had returned after the war.

He and Paul von Sturmer set up their own law practice, not in the central city where the other law firms were located but on the North Shore. It was a radical move as the closest law firm in the north was in Wellsford and in the south, Papakura. The late Mick Shanahan, a great friend of my father, became the first practitioner in West Auckland, establishing an office in Henderson at the same time.

These men were the first suburban practitioners.

Bryan and Paul decided their office would be in Takapuna as the North Shore population was based in Devonport, Takapuna and Birkenhead. They thought this was the best location although many said how far it was from the Devonport ferry.

Mahon and von Sturmer’s office was on the first floor of a building on the corner of Lake Road and The Strand. In those first few weeks, Bryan and Paul wondered whether suburban practice was the best business model as the most frequent footsteps on the stairs were those of a local dog who took a liking to the reception area.

However, in the late 40s the Auckland population was rapidly increasing and Mahon and von Sturmer became a busy law practice. Then, a few years later, Paul set up his own practice and Michael Sumpter, who had joined the partnership, remained with Bryan. For more than 50 years Bryan and Michael practised as Mahon and Sumpter in Takapuna.

It was at university that Bryan met my mother, Dorothy Gawith, an architecture Continued on page 11 3

ADLS PROFILE

Peter Nolan: a top wordsmith with hard-core drafting skills Like anything, if you get your biggest objector on board, you get a resource that becomes very valuable

By Diana Clement

The steady hand behind New Zealand’s ubiquitous sale and purchase form for property is putting away his pen. Property lawyer Peter Nolan knows the ADLS/REINZ Agreement for Sale and Purchase of Real Estate better than any lawyer alive: he wrote it, and rewrote it and rewrote it once again.

Nolan’s steady hand and attention to black letter law has guided the most important document in New Zealand property law for more than 15 years, presiding over the form at a time when the sector was riding the wave of leaky buildings and property investment scandals. He has been involved in every new form since 1999 and from 2005 onwards has been the principal drafter.

It kicked off back in 1999 when Nolan was approached by the then ADLS Forms Committee, now called the Documents and Precedents Committee. It was debating the 7th edition at the time.

“They had a few issues amongst the committee they weren’t comfortable they had resolved,” says Nolan. “They decided to call in an independent person to overview the draft agreement they had come up with because there were quite a few changes from the previous edition. I had a keen interest in the form.

That’s where it all starts.”

Fast forward six years and the committee had begun the process of creating the 8th edition. Niamh McMahon, partner at McMahon Butterworth Thompson Lawyers, was in the driving seat as committee convenor and had launched one of the most far-reaching reviews of the agreement to date.

The committee was inundated with opinions about what was wrong with the agreement, but none of those commentators was more thorough than Nolan, McMahon says.

“Peter became involved [with the 8th edition] because he wrote in, in very black and white terms, pointing out the shortcomings of the agreement. He took the time to write a lengthy letter, not just a quick line to say: ‘hey, I don’t like that clause’.”

Nolan’s communication was almost a thesis. It explained, word by word, with supporting documents and case references, how the existing agreement was no longer fit for purpose, how it needed to change and what the committee needed to do, she says.

Thanks to that letter, Nolan landed himself a permanent place on the drafting team. “Like anything, if you get your biggest objector on board, you get a resource that becomes very valuable,” says McMahon. “It was obvious that he was the best person to steer that ship.”

Peter Nolan

building era,” says McMahon. “It was abhorrent that people [had] unwittingly purchased properties where issues weren’t fully disclosed.”

With that in the background, the incumbent agreement needed revising to ensure it still met fairly the needs of both vendor and purchaser. The pendulum was swinging away from caveat emptor, says McMahon, and the form was redrafted to keep pace.

Nolan took on the challenge. He had always made a point of keeping up-todate with the latest case law and legislation and was determined that the form accurately reflected that.

At meetings, Nolan had always done his homework, says McMahon. His research was exhaustive. “If you had to be corrected on the point, it was done in an appropriate way and your dignity was left intact. He was unfailingly polite.

He holds his views strongly but has good skills to bring you along with that.”

Nolan was a top wordsmith, and he needs to be honoured for his hard-core skills, says McMahon. “He is your old-fashioned black-lettered lawyer. He knows his onions. He knows his law. He’s almost invariably right.

“I think that encapsulates Peter. And we need Peters in the world. We need loads of them: people who are really focused on the black letter stuff, the straight and narrow, so we’re not swaying with the winds of change in a way that takes us away from core principles. Peter’s the person for that.”

Nolan wasn’t one for chit-chat or banter. But he did a grand job of taking on board comments from the profession, coming up with suggested changes and drafting clauses, says McMahon. Those changes would then be thrown into the ‘lion’s den’ at committee meetings.

After the publication of the 8th edition in 2008, the committee didn’t get to rest for long. A Supreme Court decision in Property Ventures Investments Limited v Regalwood Holdings Limited meant Nolan was soon in the thick of one of the most significant changes to the agreement in recent years, says barrister Tim Jones, who has been involved with the ADLS Documents and Precedents Committee for years.

“Peter can take the credit for doing the hard yards and all the heavy lifting in terms of drafting words that ultimately found their way onto the page to meet those challenges.

The Property Ventures case centred on breach of warranty. It was probably the best example in the history of the form of how judicial commentary shaped the drafting, says Jones.

“Our forebears gifted us a document that everybody accepted was fair. It [didn’t] try to be the vendor’s version or the purchaser’s version. It was just ‘what do Kiwis expect when they buy a property?’ It just needed updating to keep pace with the times.” He built on a good base document, says McMahon.

“There was a comment by the Supreme Court in the decision and a statement by the court that it surely shouldn’t be too hard upon the drafters of the form to provide a clause that would deal with this situation,” Jones says. Nolan rose to the occasion and drafted what was called the interim compensation provision, released in the eighth edition 2006(3) in August 2010. It introduced Continued on page 5

The 8th edition was particularly tricky. “We were in the thick of the leaky 4

LawNews Issue 13 | 7 May 2021 Continued from page 4 a process to be followed before a purchaser would be entitled to compensation or an equitable set-off resulting from an error, omission or misdescription of the property or the title.

Employment Lawyer 5 years’ + PQE

In cases such as this, Nolan moved quickly when redrafting was required with urgency. An example, says Jones, was the building report clause to sit with finance, LIM and OIA/Land Act conditions added into the 9th edition (1) – (8).

“I distinctly recall getting the pressure that we needed to give this consideration, so we sat down with Peter, we looked through the concepts, the case law [and] the issues, and then Peter came up with the draft clause.

Jones describes Nolan as a “first class lifesaver”, always stepping in when needed and completing his work for the committee in a very timely fashion.

“He is thorough, he is accurate. He knows his mind. If he doesn’t like what we’re doing, he will tell us [and] give some very good reasons. He doesn’t shirk from telling you he thinks that you’ve got it wrong. Often, he’s right.”

The committee rarely diverged from Nolan’s advice because it was always so precise, Jones says.

“He knows the form inside out and he’s very meticulous about it and ensures that the drafting is consistent. We are pretty lucky to have had him all those years and are very disappointed that he is retiring.”

Nolan’s expertise in property law was also noted by the New Zealand Law Society (NZLS). In the late 2000s he was invited to join the NZLS working party that prepared and presented submissions to Parliament’s select committee on the Property Law Bill, which was later enacted as the Property Law Act 2007.

“There was a committee formed by the New Zealand Law Society to review the bill and to make a comment on it,” Nolan says. “And that was how I got involved at the New Zealand Law Society level.”

He went on to present a nationwide series of seminars for the NZLS in the late 2000s, again in 2012 and then 2017.

When Nolan looks back at the highlights of his career, his membership of the ADLS committee is at or near the top.

“It really has been a highlight and I’ve thoroughly enjoyed the work. Otherwise, like most lawyers, it’s the contact with clients, the relationships you make and the vision you get from hopefully doing a good job and achieving an outcome.

Solving problems and giving good sound advice.”

Nolan graduated with a Bachelor of Arts and Bachelor of Law from the University of Otago in 1973. He was admitted as a barrister and solicitor in 1976.

Five years later he was made partner at Towle & Cooper, which subsequently merged with Brookfields. Nolan went on to join Kensington Swan as a partner in 2002. He was attracted to Kensington Swan because it was a much larger national law firm and he could work with the legendary Ian Haynes ONZM. At Kensington Swan, Nolan was the partner in charge of the property department at the firm’s Auckland office.

Nolan practised his entire legal career in property law. Over the years he saw first-hand the fallout from property transactions gone wrong. “I acted as an expert witness in many cases, including in particular in the Blue Chip debacle, where the lawyers acting for the purchasers were sued for negligence.” He has also acted as expert on leaky homes cases.

The form wasn’t at fault in either of these scandals, he says. “It really came down to the poor quality of the legal advice they got, rather than the form. It’s a standard form. You still need to take sound, proper legal advice before signing anything or any contract.”

Kiely Thompson Caisley is a specialist boutique employment law firm and one of New Zealand’s leading employment litigation firms. We act for some of New Zealand’s largest companies and regularly appear in the Employment Court, Court of Appeal and Supreme Court.

We have an opportunity in our Auckland office for an intermediate/senior lawyer with proven experience, drive and commitment. If you have the following attributes, then we would love to talk to you: • A passion for employment law.

• A minimum of 5+ years’ post-admission experience in employment law and/or litigation.

• A common-sense and pragmatic approach to problem solving.

• A commitment to delivering outcomes that drive client success.

• Highly developed analytical and problem-solving abilities.

• Ability to work under pressure and meet deadlines.

• Strong communication and relationship skills.

• An excellent work ethic.

• Experience managing complex matters and advice.

• Attention to detail and commitment to quality.

• Proven networking skills within the law/business community.

At Kiely Thompson Caisley we value individuality and diversity, and we offer a supportive, flexible working environment. The successful applicant will receive a highly competitive remuneration package.

Please email your CV, along with your academic transcript and cover letter, in confidence to our Operations Manager, Gina Spooner, spooner@ktc.co.nz.

Nolan says he has enjoyed his entire legal career, but particularly the collegiality and camaraderie of the profession. “I particularly found that when I was starting to [give] expert evidence and mingle a bit more with the litigation barristers. You could ring anybody up and ask for advice.

“The other thing actually is the calibre of the people on the committee. There have been some really good lawyers on the committee and the profession owes it a big debt.”

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CASE NOTE

Court upholds council’s right to cancel event

By Sacha Jugum

Property and/or litigation lawyer 4 years’+ PQE Excellent remuneration, flexible working arrangements Auckland, Full Time • Rare opportunity to join a high-performing, in-house team • Varied role • Excellent workplace culture Barfoot & Thompson is Auckland’s leading real estate company with 78 branches and 2,500 staff.

It’s a family-owned-and-run business that has been selling homes for over 97 years.

We are currently looking for a property and/or litigation lawyer to join our team with the following skills and attributes: • Understanding of residential, commercial and rural real estate transactions • Knowledge of the Real Estate Agents Act 2008 and regulations • Understanding of consumer protection legislation • Exceptional organisational and problem-solving skills • Well-developed and mature relationship-building skills • A proactive and innovative approach with a high level of initiative • A conscientious and confidential manner • Excellent written and verbal communication skills • A high standard of professionalism The role is based in Barfoot & Thompson’s modern central city office and offers an excellent team and company culture.

If you think you have what it takes, we would love to hear from you. Please apply by sending your current CV and covering letter to Lisa Gerrard, lgerrard@barfoot.co.nz. For further information, please phone Lisa on 021975630.

New Zealand Bill of Rights Act 1990 – appeal against refusal of judicial review – whether a councilcontrolled organisation is under an obligation to facilitate freedom of expression – appeal against costs award – applicable principles – whether public decision or exercise of public power – whether reviewable decision – functions of local government – whether devolution of power – extent of limits on freedom of expression – “reasonableness” – New Zealand and overseas precedent, including constitutional law in the United States of America – academic commentary and reports – status of entities – appeal against refusal of judicial review is dismissed – appeal against the High Court costs order is allowed and the costs award against appellants is reduced by 70%.

Moncrief-Spittle & Or v Regional Facilities Auckland Limited & Or [2021] NZCA 142 (Kós P, Courtney and Cooper JJ) Regional Facilities Auckland is an Auckland Council-Controlled Organisation (CCO) and administers various facilities, including the Bruce Mason Regional Centre, a major Auckland indoor theatre and performing space.

A booking was received for the centre and unbeknown to Regional Facilities Auckland, the booking was for controversial far-Right speakers Stefan Molyneux and Lauren Southern. The fact of the booking drew public debate and criticism, and the event was cancelled on the grounds of public safety after the likelihood of protest and security concerns became apparent.

The decision to cancel was noted by the judge as not being inevitable and arose from a combination of factors, including the alleged lack of initial disclosure by the speaker as to the nature of the event and likely security issues, and the Bruce Mason Regional Centre’s location in the hub of a busy suburb which would have made it difficult to separate and monitor protestors, public passing through the area to businesses and restaurants, and event attendees.

Moncrief-Spittle, who had bought a ticket for the event, applied for judicial review of Regional Facilities Auckland’s decision to cancel the booking, arguing that it had a public obligation to facilitate freedom of expression. This application for review was unsuccessful in the High Court and Moncrief-Spittle was ordered to pay costs. He appealed to the Court of Appeal against the refusal of judicial review [the substantive decision] and the costs order [the costs decision].

Applicable principles – assessment of the standing of the plaintiffs to bring the claim – extensive discussion of public versus private power and the role of a CCO – whether Regional Facilities Auckland was acting in a commercial capacity rather than a public one – analysis of reasonableness in the context of whether there are limits on freedom of expression in New Zealand, and the extent of those limits – consideration of governance and decision-making structures and processes as between Auckland Council and the CCO in a local governance context – detailed discussion of precedent and academic material, ranging from overseas case law relating to constitutional freedom of speech in the United States of America, to policy documents and reports on local governance in Auckland – the court also considered the appeal against the costs decision and the public importance of the issues raised – whether a reduction in costs was warranted [yes].

Held: [after consideration of all matters] Moncrief-Spittle’s appeal against the substantive decision is declined – his appeal against the costs decision is allowed and the costs order is reduced by 70%.

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LawNews Issue 13 | 7 May 2021

Collegiality Events Inaugural Annual Breakfasts with the Rt Hon Dame Helen Winkelmann Wellington Thursday 8 July | 7.15 am - 8.30 am InterContinental Wellington | 2 Grey Street Christchurch Thursday 19 August | 7.15 am - 8.30 am The George | 50 Park Terrace

18 May

ADLS & SOULS Buddy Evening Otago University

2 Jun

East Auckland Lawyers’ Lunch Goode Brothers

3 Jun

Rotorua Sundowner The Regent Room

For tickets & more information click on this page or contact us T 09 978 3970

E events@adls.org.nz

W adls.org.nz/collegiality

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To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278

Featured CPD Love Thy Neighbour? A guide to navigating common neighbour disputes — FINAL NOTICE In person | Live Stream Disputes between neighbours can escalate quickly and disproportionately. On occasion, tensions build until one neighbour explodes, like one who took a chainsaw to his neighbour’s fence. Often however, disputes make their way through our courts and tribunals, with some culminating in lengthy and costly litigation (such as in the case of Aitchison v Walmsley where a dispute over a play-fort led to 4 years of litigation). Knowing how to navigate and best resolve these often heated disputes may be beneficial to all lawyers advising clients in the area. This seminar provides a guide to navigating common neighbour disputes, in the context of recent and interesting case law, and will focus on covenants, cross-leases, rights of way, boundaries and actionable nuisances.

Learning outcomes: • Gain a better understanding of the law as it relates to restrictive covenants, cross-leases, rights of way, boundaries and actionable nuisances, and become aware of recent and key case law.

• Learn what steps to take, and what remedies are available, where disputes can only be resolved by litigation.

• Learn about practical solutions to consider before disputes become litigious, as well as the alternative dispute resolution mechanisms available, and organisations that can assist your clients manage their problems.

Leading in Law – What is Leading? (Workshop 1) — FINAL NOTICE A series of three half-day workshops, this distilled leadership development programme provides participants with a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership bestpractice, where the primary role of a leader is to empower people to perform and grow, this is an engaging, sometimes challenging, leadership development experience.

Places are limited – register now to avoid disappointment.

Learning outcomes

Feedback from previous sessions: •

• •

In person | Live Stream Advocating for clients to achieve the best financial outcome is critical. Whether they receive a court award or settle out of court, in disputes involving money your client will ultimately be concerned with their bottom line. But what happens if they receive an unexpected tax bill and don’t pocket what they were expecting?

Alternatively if your client is on the other side of the dispute and paying out, will a tax deduction be available to relieve some of the burden? The objective of this seminar is to familiarise you with key income tax and GST considerations you should keep in mind when negotiating settlements or pleading claims. While your client may not expect you to be a tax expert, you should understand the basic questions to ask, when to ask them, the potential ramifications to you and your client if tax considerations are overlooked, and when to recommend that your client seek specialist tax advice.

Learning outcomes:

 Tue, 11 May 4pm – 6.15pm

 Presenters Andrew Peat, Barrister David Broadmore, Partner, Buddle Findlay Mitch Singh, Partner, Glaister Ennor Wi Pere Mita, Manager Māori Legal Services, Community Law South Auckland

 Chair Geoff Hardy, Partner, Martelli McKegg

 Workshop CPD 4 hrs

 Thu, 13 May 9am – 1.15pm

 Facilitator Tony Gardner, Managing Director, Archetype Leadership + Teams

 Seminar Livestream CPD 1.5 hrs

 Tue, 18 May 4pm – 5.30pm

 Presenters Katerina Wendt, Barrister, Richmond Chambers Robert Grignon, Senior Legal Advisor, Chapman Tripp

Understand the basic principles of when settlements and court awards are subject to income tax.

Learn when apportionment of lump sums is necessary, including understanding Inland Revenue’s approach to apportioning sums for income tax purposes.

Understand what happens when lump sums cannot be apportioned.

Understand when GST may be payable on settlements and court awards.

Learn the importance of knowing whether payments will be made by an insurer rather than the counterparty, how this can create an unexpected GST liability for your client and strategies for protecting your client.

Understand how potential law changes could alter the incidence of GST on payments from insurers.

Understand the circumstances in which GST can apply to court costs awards.

Debts, Disputes and Retentions: Recent Construction Case Law Deconstructed In person | Live Stream A recent spate of cases has brought into sharp focus a number of issues and key principles of interest and importance to all practitioners advising clients in the building and construction industry. Some of these issues include, inter-alia, the validity of payment claims and payment schedules; the scope of an adjudicator’s powers in determining a dispute; letters of intent and the importance of contract formation; and issues surrounding the retentions regime. This seminar will provide a summary of industry noteworthy cases and key takeaways, and unpack the issues surrounding the retentions regime in the context of recent case law and Government announced changes to the Construction Contracts Act 2002.

Learning outcomes

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Livestream CPD 2 hrs

Created a good initiative environment with a very good presenter who knew his topic well and was passionate about teaching other to lead.

Thoroughly enjoyable and highly valuable.

This really is a great course and should be encouraged right across the profession and at all levels A+.

The Taxation of Settlements and Awards: What Lawyers Need to Know

• •

• • •

• •

 Seminar

 Seminar Livestream CPD 2 hrs

 Wed, 19 May 4pm – 6.15pm

 Presenters Geoff Hardy, Partner, Martelli McKegg Shanti Frater, Partner, Simpson Grierson

LawNews Issue 13 | 7 May 2021

CPD in Brief Investing vs Speculating (for legal professionals)

 Seminar

In person | Live Stream Do you wish (or need) to achieve your long-term financial objectives? There is a difference between investing and speculating. Patrick Fogarty is the Client Director at The Private Office, a boutique wealth management business specialising in providing tailored financial planning and investment management for senior members of the legal community.

His evidenced-based talk will highlight key principles that underpin successful investment strategies, and show how understanding these (often simple) ideas can have a huge impact on your ability to create financial independence.

Presenter: Patrick Fogarty, Client Director, The Private Office

 Thu, 20 May

The Art of Communication – Be a Powerful Advocate

 Workshop

As Spandau Ballet put it, “Communication let me down.” How often have you thought that you could, or should, have slowed down when addressing a room, used more eye contact, or come across as more confident? This workshop, led by an experienced advocate and an accomplished teacher/director, will arm you with the skills for developing the art of communication for your role as an advocate – so you won’t let yourself down, or your clients on behalf of whom you speak.

Places are limited – register now to avoid disappointment.

Feedback from the previous sessions included the following comments: • “Interesting, lively workshop – well presented.”

• “Great anecdotes, relevant stories and examples.”

• “The presentation was relaxed, informative and encouraging.”

Presenters: Marie Dyhrberg QC; Isabel Fish, Director, Producer and Educator

CPD 3 hrs

Statutory Demands: Tricks and Traps for Both Sides of the Fence

 Webinar

The statutory demand process is widely used for collecting debts – but getting it wrong can be costly both in terms of money and time. Lawyers can be liable for issuing a demand, even when it is the client who signs the demand. The area is complicated by needing to take into account a number of different rules in the Companies Act and the High Court Rules, as well as unwritten rules which emerge from the case law. This seminar will provide practical guidance for lawyers advising creditors and/or debtors involved with statutory demands, with a focus on the requirements for a demand, the consequences of errors, and the process for applying to set aside a demand.

Presenters: Kevin Glover, Barrister, Shortland Chambers; Yvonne Wang, Barrister, Shortland Chambers

Livestream CPD 1.5 hrs 4pm – 5.30pm

 Sat, 22 May 9am – 12.15pm

CPD 1 hr

 Wed, 26 May 12pm – 1pm

Excellence in Legal Writing

 Workshop

Legal writing is the “bread and butter” of a lawyer’s practice. Writing well is harder than it looks, though. For years, we’ve been told that we should “write like Katherine Mansfield”. But how? This workshop will introduce you to three simple hacks to improve your written work: writing concretely; writing actively; and writing less. It builds on the work of linguistic experts, notably Helen Sword and Steven Pinker. But never fear: the words “subordinate clause” will not feature. We’ll also deploy a fourth tool – “point-first advocacy” – to structure arguments for maximum impact. This learn-by-doing workshop will help you achieve writing excellence.

Christchurch | Thursday 27 May | 11.00 am – 2.15 pm Hamilton | Thursday 3 June | 10.00 am – 1.15 pm Palmerston North | Tuesday 6 July | 11.00 am – 2.15 pm Wellington | Monday 9 August | 11.00 am – 2.15 pm Queenstown | Monday 6 September | 11.00 am – 2.15 pm Nelson | Monday 20 September | 11.00 am – 2.15 pm Auckland | Monday 18 October | 9.00 am – 12.15 pm Presenter: Andrea Ewing, Crown Counsel, Crown Law Office (Criminal Team)

CPD 3 hrs

CPD Pricing Delivery Method

Member

Non-Member



Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST



Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

 

CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd

For group bookings for webinars and seminars, contact cpd@adls.org.nz ADLS members and non-member lawyers who have registered their Airpoints™ membership with ADLS can earn Airpoints Dollars™ on eligible ADLS CPD purchases.

Terms and conditions apply.

Statutory Demands: Tricks and Traps for Both Sides of the Fence Wednesday 26 May | Webinar | 1 CPD hour Visit adls.org.nz for more information.

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Leading in Law Workshop Series Workshop 1 – What is Leading?

Thursday 13 May, 9.00am-1.15pm Workshop 2 – Leading Yourself: Thursday 10 June, 9.00am-1.15pm Workshop 3 – Leading Others Thursday 8 July, 9.00am-1.15pm Numbers are strictly limited so book now.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

Bookstore A convenient, one-stop-shop for all your legal resources ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

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The ADLS Bookstore couriers nationwide Or, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD

LawNews Issue 13 | 7 May 2021

Continued from page 3 student. They married in 1952 and Bryan moved from Black Rock Corner on the sea side of Lake Pupuke, to a section on the southern side which was to become our family home at 43 Pupuke Road, now Lake Pupuke Drive.

Any conveyancer would agree that Bryan’s concept was original and it had not existed anywhere else. A 2017 study shows there are about 216,000 crosslease titles in New Zealand.

Seven years before the Harbour Bridge was built people questioned why Bryan and Dorothy would buy a section at the back of the lake. The area from our home to what are now Northcote, Glenfield and Albany was farmland and market gardens. We became city farmers and we had goats and sheep on our one-acre section.

Bryan was a far better lawyer than businessman; he shared his ideas with local practitioners and the Auckland District Law Society which then claimed copyright to the leases and the rest is history.

In 1953 my sister Justine was born followed by me in 1955, David in 1956 and Tim in 1961.

Not only was Bryan working long hours while he and Dorothy raised a young family, but in 1956 at the age of 33, Bryan who had been a city councillor and deputy mayor, was elected Mayor of Takapuna by nine votes. He lost the mayoralty on a recount three weeks later but that did not dampen his enthusiasm for community service.

In subsequent years, in addition to his involvement with the RSA he was a member of the North Shore Drainage Board, North Shore Fire Board, the Takapuna Grammar School Board of Governors and President of the Takapuna Lawn Tennis Club. And, together with his good friend David Beattie, Bryan founded the North Shore Squash Club.

Legal practice and law society Any lawyer in those days was a jack-of-all-trades. Although he was based in Takapuna, Bryan continued appearing in all the courts and conducted many jury trials, courts martial and civil cases. He took pride that several of his cases were reported in the New Zealand Law Reports, including one which went to the Court of Appeal.

When residential development on the North Shore took off after the Harbour Bridge opened in 1959, Bryan’s conveyancing practice grew.

There was a great pressure on North Shore land, not only for houses but also for flats. A frustration for Bryan was the size a section had to be before it could be subdivided. Bryan became aware that a group of dentists in California had created separate leasehold interests in a floor of the building where they had their dental practice. He used his knowledge of land law and leases to develop a leasehold interest which enabled more than one dwelling to be erected on a single parcel of land without the need for a subdivision.

The device became known as the cross-lease. Bryan worked closely with the Assistant Land Registrar who accepted the validity of these leases for registration and, with the assistance of local North Shore MP George Gair, legislation was passed enabling this form of ownership to be recognised in a separate title now known as a “cross-lease title”.

Bryan served on the council of the Auckland District Law Society for some years. He was ADLS President and a NZLS Vice President in the early 1970s.

He saw the law society role as an opportunity to improve pastoral support for practitioners and to contribute to debate on current issues in society. That is why he particularly enjoyed his time on the Public Issues committee where he served with a young barrister Sian Elias, later Dame Sian Elias, NZ’s first female Chief Justice.

Bryan loved the law and only fully retired when he was nearly 90 years old.

His respect for the institution of law was apparent when, at age 92, he was at my swearing in as a District Court judge. When the Principal Family Court Judge Lawrence Ryan spoke of his respect for Bryan’s contribution to the legal profession and mentioned his name, our father stood up in the court room as any counsel being addressed by a judge is required to do. A special moment.

The family man Many who have been in touch with the family have talked of the sensitivity and warmth of our father and his acts of kindness in their lives.

Although a public figure, Bryan was a shy and private person. He loved history, literature and poetry. He wrote an unpublished history of his experience in the 21st Battalion and a novel set in Italy.

Bryan studied Latin at school and university and spoke French and Italian.

He learnt Maori for several years in the early 1960s and was a member of the Polynesian Society, an organisation where academic research on the origins of the Polynesian people was shared.

He also learned Russian and as children we met his tutor several times. Dr Siegel had written a Russian/English dictionary and knew Lenin, Trotsky and Stalin. A remarkable man.

But the father we remember from those days is not the scholar, soldier or lawyer but the kind even tempered father who read us stories at night and as a special treat on a Sunday, make up his own stories of adventure where we each had a part. We would sit transfixed around his chair as he wove his knowledge of the myths and history to create an adventure in weekly instalments. We would be fighting the Romans or marooned on a desert island and I would go to bed wondering how on earth I could wait until the next week’s instalment.

COMING SOON

Law of Family Protection and Testamentary Promises, 5th edition Author: Bill Patterson Publication Due Late May 2021 This edition of Law of Family Protection and Testamentary Promises updates and extends this comprehensive text.

New matters discussed include a trend for courts to be asked to increase awards in claims brought as “support” or “recognition” claims based on “additional factors”, problems arising with blended families and one family group is, or is perceived to be, preferred over the other, a review of the approach of courts to making percentage awards in cases and a discussion on conflict of interest where administrator beneficiaries are involved.

The changing attitude of the courts to the award of costs, well as some

new procedural issues, are noted, as is the emerging willingness of courts to permit interim distributions to beneficiaries so they can fund their legal costs.

Price: $173.91 plus GST* Price for ADLS members: $156.52 plus GST* (* + Postage and packaging) To pre-order 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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MEDIATION Nigel Dunlop Barrister

IT Agreements - Precedent Manager (part time, contract role)

EXPERTISE & EXPERIENCE

Be your own boss with work that is regular and at the same time dynamic and leading edge!

Recognised industry experts. Serving legal documents for over 30 years.

Fast, professional, nationwide process serving for solicitors and government agencies.

021 685 910 nigel@nigeldunlop.co.nz www.nigeldunlop.co.nz

P: (09) 302-2476 E: team@docuserve.co.nz W:www.docuserve.co.nz

This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Get your message in front of them.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270

We are seeking a lawyer to manage our large suite of precedent IT agreements. The appropriate person for this role will: • • • • •

Have excellent agreement drafting skills Have experience advising clients in the IT industry including drafting and negotiating IT agreements Be highly organised Preferably have 4+ years’ experience in a large law firm.

Preferably have a sound understanding of contractual issues related to cloud computing and the GDPR.

The successful applicant will: • •

Work remotely from their own home/premises (with onsite/video meetings at agreed times); Work with and under the supervision of a highly experienced IT lawyer.

Expected hours: 20 hours / month. May vary.

Interested to find out more?

Please submit your application including CV to: nicola@va.nz Applications close: 26 May 2021

Chancery Chambers offices for rent

Wills 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.

David RONGO (aka David TAIA), Late of 55 Albrecht Avenue, Mt Roskill, Auckland, aged 81 (died 12’12’20) Samuela Kiniboi SAUTU, Late of 32 Parker Avenue, New Lynn, Auckland, aged 52 (died between 05’03’21 and 06’03’21)

Two offices are available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

There is a 33.71sqm office on the third floor of the O’Connell Street side of building and a 15.75sqm office on the fifth floor of the Chancery Street side of building.

Opex includes reception to greet clients/receive couriers, kitchen facilities, copy room access and use of shared meeting rooms.

Please contact Krystal Marshall on (09) 303 5277 or krystal.marshall@adls.org.nz for more information

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LawNews Issue 13 | 7 May 2021

Members Special Fund The ADLS Members Special Fund exists to assist 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

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

The AML/CFT Workshop 2021 Wednesday 16 June | Auckland Wednesday 30 June | Hamilton Wednesday 7 July | Auckland This workshop will be relevant to almost all lawyers in practice but it will be of particular importance to senior partners and practice managers, especially those in small to medium sized practices.

Numbers are strictly limited so book now.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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