LawNews- Issue 19

Jun 16, 2023 Issue 19

Inside

■ PROFILE Judge Phil Recordon hangs up his robes

P08-10

■ PARTNERSHIP

Is it too tough at the top?

P11

Court to hear unusual bid for name

SUPPRESSION

Contents

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

Editor: Jenni McManus

Publisher: ADLS

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

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

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©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.

Disgruntled litigant asks Employment Court for name suppression after a win in the Employment Relations Authority

of her relief that the dispute was over.

A restaurant employee who won a breach of confidentiality claim against his former boss is asking the Employment Court for permanent name suppression.

The worker, who is identified in court documents only as MW, lost his bid for secrecy when the case came before the Employment Relations Authority (ERA). Member Marija Urlich found MW’s former employer had breached the terms of a settlement agreed between them after his employment came to an end, which included confidentiality and non-disparagement clauses, but refused to suppress his name.

“On his own evidence, ‘the horse has bolted’,” Urlich said. “People in the industry know he had an employment relationship problem with [the employer] which was resolved by way of a mediated record of settlement.

“A non-publication order is unlikely to cure the effect of information already publicly known. In addition, [MW’s] concern about the potential negative impact of publication is not strong and insufficient to support a non-publication order.”

But MW says the ERA erred and that the protection granted by the confidentiality clause in his settlement agreement would be defeated unless he had name suppression.

In the meantime, Employment Court Chief Judge Christina Inglis has made an interim order suppressing both the worker’s name and any identifying details.

Because of the presumption of open justice, plaintiff suppression orders are rare in the employment jurisdiction. Given the importance and breadth of the issue, the chief judge has also decided to convene a

full bench of the court to determine the matter, which is likely to extend further than the specific issues covered in MW’s settlement, agreed under s 149 of the Employment Relations Act 2000.

While the defendant company isn’t included in Chief Judge Inglis’ order, LawNews has chosen not to publish its name. The defendant is a small suburban restaurant and those working in the hospitality sector would likely have little difficulty in identifying the plaintiff if the name of the business were revealed.

The defendant company is also taking no part in the name suppression appeal. After being ordered to pay a penalty of $1000 for its breach (with $500 going to MW), the restaurant says it does not want to take an active part in MW’s challenge.

Employment problem

The saga began with an employment problem (the ERA’s determination makes no mention of the details) that culminated in a settlement between the worker and the company, certified by a mediator in November 2021.

Subsequently, MW said the company breached both the confidentiality and non-disparagement clauses in the agreement. He filed proceedings with the ERA, seeking a compliance order, penalties for the alleged breaches and costs.

At the ERA hearing, MW contended that the breaches appeared to have occurred in a postsettlement phone conversation between one of the company’s directors and her father. The director, who had signed the settlement agreement on behalf of the company, was accused of leaking specific details about the agreement – an allegation she and her father denied, saying they spoke only in general terms

Early in February 2022, MW said he was contacted by an Auckland business owner who said he’d been warned about MW during a conversation with a third party about “money and employment”. MW said he had spoken to nobody about the terms of the settlement, meaning the information could have come only from the defendant company.

The ERA found that specific information about the settlement agreement was communicated during the phone conversation between the director and her father. Further, it found that the father had made disparaging remarks to others about MW but as the father was not a party to the settlement agreement, he had not breached the terms of that agreement.

But the situation was different for the director. She had signed the record of settlement on behalf of the business and as the business had been given the opportunity to take independent legal advice about the agreement’s meaning and terms, “it must be taken to have been aware of its obligations under the record of settlement,” the ERA said.

“There is no basis on which I can reasonably conclude that the breach of the record of settlement by [the company] was inadvertent, minor or technical…. What was communicated was specific information about what arose during the course of the mediation and could not be readily inferred from the general circumstances, particularly given on her own evidence [the director] was confident going into the mediation that [the company] had done nothing wrong in respect of obligations owed to [MW] under the employment agreement.”

The Employment Court is likely to hear the name suppression matter later this year. ADLS has been approved as an intervener, along with the NZ Council of Trade Unions, NZLS, the NZ Bar Association, the Employment Law Institute and the Privacy Commissioner. Others are expected, including applications from media and employer organisations.

Jenni McManus

On his own evidence, ‘the horse has bolted’…. a non-publication order is unlikely to cure the effect of information already publicly known

What the independent review panel actually says about lawyers and the treaty

Gary Judd KC

On 6 June, I sent the following email to the NZLS publications’ email addresses.

How can the new regulator not impose treaty principles on lawyers if the regulator is required to give effect to treaty principles when exercising its functions and performing its duties?

I attach my answer to What the Independent Review says on Te Tiriti. Although I am not named, I expect that I am amongst those within “Recently, there has been a bit of commentary ….” There will certainly be people who will assume the article is responding to material which I, amongst others, have written or spoken.

I am also representative of what the Independent Review Panel describes as a “vocal minority”. A small part of my submission was published, under that description. Therefore, I considered it appropriate to prepare an explanation of why the article is incorrect.

It is in the interests of fair and open discussion of a very important aspect of potentially monumental changes to the environment within which the profession operates, that Newsroom should publish the attached answer. Please confirm that it will be published.”

There has been no response, but last Friday, LawNews published, as a letter to the editor, a letter from the President of the NZLS addressed to me, but not sent to me. Having read it, I decided it would be appropriate to submit for publication by LawNews what I asked NZLS to publish.

I would add that instead of critical issues being evaded by NZLS, it would be fitting that they be answered in substance and not ignored. They include:

Does the NZLS disagree that we should seek a future based on reciprocity and mutual respect, as individuals entitled to be treated as equals in the eyes of the law, which is what the

treaty promised, and the rule of law requires? If so, what are its grounds for disagreeing? If it does not disagree, why is it appearing to support the recommendations instead of rejecting them out of hand?

Will the interests of NZLS members be served by turning over regulation of lawyers to a regulator whose board members will be appointed by the government which is charged with giving effect to the principles of the treaty when exercising its powers and performing its functions and duties? If so, how will it serve their interests?

The article submitted to NZLS follows No author has been named in the Newsroom article and it is a New Zealand Law Society publication, so it appears to be an official response to public commentary from various people, including me.

The article argues that the independent review does not propose changes which would impose obligations on individual practitioners:

There has been some commentary suggesting that the obligations would apply to individual practitioners. This is not the position. The Independent Review Panel considered whether a lawyer’s responsibilities to Māori, te reo and tikanga warranted specific reference as separate regulatory objectives. The majority of the panel viewed the proposed reference to professional competence as encompassing being up to date with relevant law, including tikanga, and the reference to cultural competence as sufficient to cover a lawyer’s responsibilities to Māori clients, including the use

Continued on page 05

Barrister Gary Judd KC responds to claims made in the piece published by Newsroom on 1 June, What the Independent Review says on Te Tiriti

Gary Judd KC

Continued from page 04

of te reo when appropriate. The majority of the panel did not support including a reference to New Zealand’s constitution and Te Tiriti as part of a lawyer’s fundamental obligations.

This is subtly deceptive argumentation as the recommendations achieve the same result indirectly.

The panel recommends in 3a that the new statutory regulator be required when exercising powers and performing functions and duties “to give effect” to the principles of the treaty. How can the new regulator not impose treaty principles on lawyers if the regulator is required to give effect to treaty principles when exercising its functions and performing its duties (which, of course, include regulating and providing for the disciplining of lawyers, as primaries)?

If it did not, it would be in breach of its statutory obligations. Its ability to impose treaty principles will be enhanced by the new fundamental obligations recommended in 3c.

If the regulator must give effect to treaty principles, it may need to take steps to see that lawyers who are not supporting those principles are disciplined. Even the mere possibility of such interference is obnoxious for it would impinge on lawyers’ human rights and fundamental freedoms as individual members of the New Zealand community. See Bill of Rights ss 13 and 14: “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.

“Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”

For instance, if the regulator says that in complying with its statutory obligation to give effect to the principles of the treaty, it has determined that it is a principle of the treaty that Māori are entitled to special treatment under the law with respect to representation on Local Government (as seems to be the implicit claim of the legislators and local body councillors who have promoted these undemocratic practices) and, for example, I (as a “vocal minority”) trenchantly denounce this on the basis that it is contrary to the rule of law’s requirement for equality under the law (or on some other basis), I must run the risk that someone will make a complaint alleging that what I have done is conduct unbecoming, or worse? And the further risk that a disciplinary tribunal of some sort will decide that I am guilty?

No doubt, the possibility will be more or less pronounced depending on the detail of the legislation establishing the new regulator, but in this age where it seems more and more

acceptable to force people to conform, the possibility is by no means fanciful. Not only is it not fanciful, but the review panel is providing a foundation for it.

The report states (94-95):

We envisage the regulator (and other entities created by the new statute) being created and designed in cooperation with Māori. Working co-operatively with Māori, the entities will need to develop, for example, new governance, management and human resource policy and practices that give effect to the principles of Te Tiriti. These policies and practices should reflect New Zealand’s bicultural foundations, the recognition of te reo Māori as an official language (which parties and counsel are entitled to use in legal proceedings) and tikanga Māori. We envisage changes in regulatory practice and decision-making, including the regulator partnering with Māori, for example Te Hunga Rōia Māori, in the delivery of key functions, promoting the use of te reo Māori in its operations and reporting, and reflecting tikanga in areas such as admission (eg, making marae-based admission ceremonies commonplace for those who want them) and in the exercise of other regulatory functions (eg, complaints handling, for parties who prefer a tikanga approach).

The situation is exacerbated because we do not know what the treaty principles are. The report does not identify them. When, in a recent interview, the chairman of the independent review was asked to explain what they were, he was unable to do so. So, the panel envisages the development of policies and practices giving effect to principles the report does not define and the chairman cannot explain!

These recommendations were also made in defiance of the views of the lawyers who responded (report, 93-94). Only “35% of survey respondents supported the incorporation of Te Tiriti in the regulatory framework” while “44% of survey respondents opposed the incorporation of Te Tiriti in the Act. Their views

Continued on page 06

If the regulator must give effect to treaty principles, it may need to take steps to see that lawyers who are not supporting those principles are disciplined

This is subtly deceptive argumentation as the recommendations achieve the same result indirectly

Continued from page 05

spanned a broad spectrum, with the following submission summarising the position of a small but vocal minority….”

I recognised only recently that when the report refers to “the following submission summarising the position of a small but vocal minority,” what was quoted was an incomplete extract from two paragraphs of my own submission.

Those two paragraphs were part of this section of my submission:

Ethnic or racial separatism

39. The discussion document states that “The Act makes no mention of Te Tiriti or Māori and there is no requirement for the NZLS to promote or have regard to the interests of Māori.”

40. Why should the society promote or have regard to the interests of Māori differently to the interests of any other person, and consider seeking to have imposed on it and/ or on lawyers a legal obligation to do so? This suggests a desire to promote or have regard to the interests of Māori, as a separate racial or ethnic group, by giving Māori separate and different treatment under the law in new legislation. This may be a fashionable approach in some circles, but the Law Society should act on principle. It, like the lawyers who are its members are required by law to do, should seek to uphold the rule of law principle of equality under the law.

41. The New Zealand Law Society should do nothing to suggest it is advocating or condoning ethnic or racial separatism. Nor, indeed, should it promote cultural separatism. As conveyed by Dame Anne’s message [earlier in my submission I had quoted from an analysis by Dame Anne Salmond], we should seek a future based on reciprocity and mutual respect, as individuals entitled to be treated as equals in the eyes of the law, which is what the treaty promised. Does anyone really want to disagree with that?

42. The society should be doing everything it can to promote equality of individuals in the eyes of the law. One way of doing that would be to point out that the treaty upholds the rights of individuals and recognises that all are equal in the eyes of the law.

43. The society should not promote the inclusion of upholding the treaty in the purpose statement in the Act (s 3). That would just open the way for people to use the new legislation to advocate different treatment based on ancestry (ie, race). It would extend separatism, or the potential for separatism, to the way the profession is regulated and represented, and the way lawyers deal with individual members of society.

44. The society should take the exactly opposite tack. It

should advocate for equality under the law and should resist any attempt by the government to require the profession to engage in separatism.

[The panel quoted from paragraphs 43 and 44, omitting the words I have now italicised.]

The panel did not face up to the points I made about the promotion of separatism.

In paragraph 41, I said: “we should seek a future based on reciprocity and mutual respect, as individuals entitled to be treated as equals in the eyes of the law, which is what the treaty promised. Does anyone really want to disagree with that?” I would add, as my submission makes clear, it is also what is required by the rule of law. The rule of law is part of New Zealand’s constitution (see Senior Courts Act 2016, s 3(2)). The rule of law came to New Zealand through the treaty and its principles of equality are reinforced by Article 3.

The question I posed, drawing on Dame Anne’s eloquent words, is one which any responsible and self-respecting organisation charged with representing its lawyer members and serving their interests would surely ask, especially as those members have a fundamental obligation to uphold the rule of law (2006 Act, ss 66 and 3). The panel to whom the question was posed did not attempt to answer it; it ignored it. To my mind, this is a critical failure which completely undermines the credibility of the whole report.

The passage I quoted from the Newsroom piece suggests a misapprehension: “The Independent Review Panel considered whether a lawyer’s responsibilities to Māori, te reo and tikanga warranted specific reference as separate regulatory objectives.”

Neither the panel nor the Law Society can find justification for its position in the assumed lawyers’ responsibilities because lawyers do not have them. As Christopher Finlayson KC has pointed out, neither individual lawyers nor the society has any obligations under the treaty. The parties to the treaty were the Crown and the Māori chiefs. By contrast, lawyers do have a responsibility to the rule of law because they have a fundamental obligation to uphold it. The rule of law sees each person as an individual human being inherently equal in worth and under the law.

Strange obsession

There is in the terms of reference and the panel’s approach a

Continued on page 07

The panel envisages the development of policies and practices giving effect to principles the report does not define and the chairman cannot explain!

There is in the terms of reference and the panel’s approach a strange obsession to force lawyers to approach their practice in a race-based way

Continued from page 06

strange obsession to force lawyers to approach their practice in a race-based way. Is it not possible to understand that each client is an individual irrespective of their race or ethnicity and we owe the same obligations of fidelity and care to each of them?

The practice of law is or should be colour blind, but that does not rule out competition. Some lawyers who have particular skills, such as language abilities, may be better placed to offer services to some clients than others. Potential clients can choose a lawyer who has such a skill if the client considers it to be important.

Those are the main points I make in response to the Newsroom article. However, I note reference in the article to the “survey recently conducted by the Law Society”. This, presumably, is the one which closed on 31 May. I did not respond to the survey. In a letter to the society’s Auckland branch president who sent the survey out to members which included me, I said:

I have fundamental objections to the recommendations, which cannot be conveyed by responses to the survey questions. For example, “5. Recommendation 1: Establish a new independent regulator to regulate lawyers in Aotearoa New Zealand,” and “6. Recommendation 2a: Ensure the independence and effectiveness of the new regulator by institutional arrangements that include establishing an independent statutory body, which is not a Crown Entity and not subject to direction from ministers.”

My answer to 5 would be “do not accept”. Yet, question 6 requires an answer presupposing at least some level of acceptance of question 5, as do all the other questions hanging off question 5.

There are similar problems with the other sets of questions.

Overall, the questionnaire and its explanatory comments

seem designed to elicit the responses desired by the proponents of the recommendations.

A properly professional survey would likely have produced greater disagreement – certainly, had I been able to express my views in answers to the survey, unconstrained by its terms, there would have been at least one more respondent to add to the 41% who did not accept the recommendation. I see that, even so, a majority disagreed.

Finally, a separate point not directly raised by the Newsroom article is the recommendation to establish a new independent regulator, itself.

It is truly bizarre that the independent review should recommend, and the society should be considering advocacy for, legislation to extinguish the society’s regulatory function (2006 Act, s 65) with that function to be taken over by an entity whose board will be appointed by the government.

Most organisations would be fighting tooth and nail to retain for themselves the ability to regulate their members, and to avoid their members getting into the clutches of the government. As I have noted, the society’s representative function is “to represent its members and to serve their interests” (s 66). Neither members’ interests nor the public interest is served by proposals which threaten lawyers’ independence from the government. That must surely be self-evident. ■

We should seek a future based on reciprocity and mutual respect, as individuals entitled to be treated as equals in the eyes of the law, which is what the treaty promised. Does anyone really want to disagree with that?

As Christopher Finlayson KC has pointed out, neither individual lawyers nor the society has any obligations under the treaty

Judge Phil Recordon hangs up his gown

Just six days before the All Blacks were due to depart for South Africa, Justice Maurice Casey granted an interim injunction that grounded the team in New Zealand until he could pass judgment

Reweti Kohere

After nearly half a century surrounded by the law, Judge Philip Recordon is hanging up his gown. The District Court judge’s acting warrant may be expiring but he’s got a few more months left to write decisions and tidy his desk.

“That’s why my name didn’t come up,” he says, after LawNews noticed his absence on the list of District Court judges.

Before his appointment to the Bench in 2003, Judge Recordon practised as a barrister sole for a couple of years, and before that as a lawyer, covering criminal law, civil litigation, immigration, tenancy and tribunal work. Mostly serving south Auckland communities, his legal career has “always very much [about] the underdog, whatever I did”, he says. “It was for the people who needed help.”

The Auckland Council for Civil Liberties, New Zealand Lawyers for Nuclear Disarmament, Lifeline, Richmond Fellowship, The Right Track, Māori and Pacific Wardens and trustee for several mental health and Māori health trusts – these are just some of the community-based organisations he has been involved with. “I was very interested in the rights of people not to suffer indignities.”

All Blacks tour

Nothing illustrates his attitude more than his decision, almost 40 years ago, to put his name to a lawsuit that challenged one of New Zealand’s most powerful organisations.

If you Google “Judge Recordon” and “rugby”, then search results, it will tell you he was one of two lawyers – supported by a formidable legal team including Sir Ted Thomas KC, Sir Rodney Hansen KC, former Chief Justice Dame Sian Elias, John Marshall KC, and Thomas’ son Simon – who challenged the New Zealand Rugby Union’s decision to send the All Blacks to apartheid South Africa in 1985.

Their essential claim was that the rugby union’s decision didn’t comply with its own rule to “promote, foster and develop” the sport in New Zealand. The union moved to strike out the judicial review claim on the basis it was frivolous, vexatious and an abuse of power.

Four years after the divisive, traumatic 1981 Springbok tour, history records Recordon and his coplaintiff, lawyer Paddy Finnigan, ultimately succeeded:

Continued on page 09

Retired District Court Judge Phil Recordon

In a famous extract, Justice Robin Cooke said the plaintiffs ought not to be dismissed as ‘mere busybodies, cranks or other mischief-makers’

Continued from page 08

just six days before the All Blacks were due to depart, Justice Maurice Casey, hearing the substantive case, granted an interim injunction that grounded the team in New Zealand until he could pass judgment. The rugby union announced it wouldn’t appeal the decision. The tour was cancelled.

Even getting to trial had been difficult, though. Chief Justice Sir Ron Davison initially struck out the plaintiffs’ case, finding they didn’t have a direct enough connection to the union to mount a challenge.

The Court of Appeal, however, found the lawyers had standing. Among a list of factors, Finnigan and Recordon were linked to the union by a “chain of contracts” and, unless they were accorded standing, there would be no effective way to test whether the administrative body had acted lawfully.

In a famous extract, Justice Robin Cooke said the plaintiffs ought not to be dismissed as “mere busybodies, cranks or other mischief-makers”. In 1981, many protestors, “normally law-abiding citizens”, had been subjected to the rule of law, Justice Cooke wrote. “It is now no less appropriate that the lawfulness of the union’s decision under its own constitution to arrange the proposed tour should be open to test in the courts.”

While the court never fully considered the lawfulness of the rugby union’s decision, four decades on the lawyers’ case serves as a great example of the law being used as an effective tool, Judge Recordon says.

But “I always felt a bit of a fraud [for] using the law to do what the country should have been persuaded to do”. While lawyers who challenged the union received abuse and, in Recordon’s case, death threats, they were also credited with having stopped the tour. Such credit glosses over the groundwork that Halt All Racist Tours (Hart) founding members Trevor Richards and John Minto and other protest groups had done, often in the face of violent police retaliation, Judge Recordon says. “And then we come in as smartass lawyers and take a case that wins. I know that’s not how it was, but that’s how it felt for me.”

He’s proud of their effort and the end result, yet wistful that New Zealand hadn’t been braver earlier on in making a stand against South Africa’s apartheid regime. “We should have made our position much

clearer and unequivocal – and it [shouldn’t have mattered] which government was in place.”

A stirrer

While on the Bench, Judge Recordon still felt he could approach his judicial work in the same way he had served south Auckland as a lawyer.

“Right from day one, [I did] what I thought was fair and right and just and within the terms of the law, but trying to look at the individual and their needs and [those] of the victim,” he says, acknowledging he was never as effective as some of his colleagues such as Judge Lisa Tremewan, who, in 2012 and alongside Judge Ema Aitken, started Te Whare Whakapiki Wairua (The house that lifts the spirit), otherwise known as the country’s first adult Alcohol and Other Drug Treatment Court.

Or Judge Tony FitzGerald, who, in 2010, established Te Kooti o Timatanga Hou (The Court of New Beginnings), a court in Auckland for offenders who are homeless. Or even Chief District Court Judge Heemi Taumaunu, who’s leading Te Ao Mārama, an initiative to incorporate the hallmarks of specialist and therapeutic courts – solution-focused judging, screening for addiction, neurodiversity, and mental health issues, the use of plain language, revised courtroom layouts, and tikanga Māori – into the District Court’s mainstream work in its criminal and family divisions.

They have achieved something, Judge Recordon says. “I was more a stirrer and would give people ideas and they would take them on and complete them. I was never very good at finishing things off, but would always be there in the background helping.”

Judge Recordon’s compassion and empathy is so strong that he says he would “genuinely be prepared to basically sacrifice myself for some of the people who come in front of me because everyone is equally as important. That includes our twentieth-time wifebeater. You’ve just got to try to keep working with them and treat them as an individual”, he says. “There are a few rottweilers whom we do something about. Putting them in prison doesn’t generally help but obviously, they have to go to prison.

“That’s why I get so angry with the government and people not changing the laws, which need changing, simple tweaking.”

An example? Subpart 2B of the Sentencing Act 2002 is headed “judicial monitoring”, which permits sentencing judges to be kept informed regularly of an

offender’s progress and compliance with either their sentence of intensive supervision or home detention. The sentencing option is primarily aimed at cases where a community-based sentence or imprisonment is finely balanced. But Judge Recordon notes judicial monitoring isn’t available for offenders who have been sentenced to prison for up to and including two years and are released on conditions.

Lasting impressions

“If you were to contact Heemi Taumaunu and say ‘would you regard me as maybe a bit of a stirrer?’, you’d get a big laugh. And some of the old retired chief judges would say exactly the same.”

While Chief Judge Taumaunu wasn’t available for an interview, he did share comments he had made at a special sitting of the Manukau District Court to celebrate Judge Recordon’s service “to this Bench, your community, and Aotearoa as a whole”.

In attendance were Chief Justice Dame Helen Winkelmann, Principal Youth Court Judge John Walker, Judge Walker’s successor, Judge Ida Malosi, South Auckland Executive Judge Jonny Moses, former Governor-General Dame Silvia Cartwright (the first female Chief District Court Judge), representatives of Tainui waka and Ngāti Whātua ki Orakei (in acknowledgment of Judge Recordon’s longstanding relationship with tangata whenua), Pasifika elders, other Auckland judges, King’s Counsel, members of the South Auckland Bar, Crown Solicitor Natalie Walker and, most importantly, Judge Recordon’s whānau, whom Chief Judge Taumaunau thanked for their “support, patience and understanding”.

Judge Recordon has been a role model for many lawyers and judges, “including myself”, Chief Judge Taumaunu said. “When I joined you at the Waitakere

Continued on page 12

I always felt a bit of a fraud for using the law to do what the country should have been persuaded to do

District Court in 2005, I was a young judge and you took me under your wing and mentored me. I fondly recall that you were happy to drive me anywhere in your combi van, especially if it meant that I would agree to play for your golden oldies rugby team.

“Judge Recordon, you have left a lasting impression upon me and many others on our bench. You have strived to ensure that all people who come to court to seek justice are treated in a respectful manner that is both fair and just,” the chief judge said. “This approach lies at the heart of the ‘Te Ao Mārama – Enhancing Justice For All’ kaupapa for the District Court. It is an approach that you have adopted throughout your whole career in the law.”

Doing things differently

“The Te Ao Mārama gown is offered to judges when the initiative is formally developed in each court. Although the initiative has yet to formally commence here at Manukau, I am very pleased that you are able to wear the Te Ao Mārama gown on this special occasion today,” Chief Judge Taumaunu said. “It is a fitting tribute to you and to your contribution to our Bench.”

Judge Recordon tells LawNews his early involvement in mental health and disability organisations led to an “early discovery” of some of the principles underlining more therapeutic approaches to justice. “It’s quite exciting, when I think of hopefully what our courts can do in the future with Te Ao Mārama,” he says. “But they’re going to need a lot more resource than they’ve got for certain because if you’re going to be dealing with people’s problems, which are causative of their criminal activities, then you’re going to have to have a lot of people and resource, because otherwise it’s going to be very frustrating.”

Asked if he shared Judge Recordon’s concerns, Chief Judge Taumaunu said he welcomed the initial four years of funding, set at just over $47 million, which was committed in Budget 2022 to “develop, test and refine” Te Ao Mārama. “A business case for how the funding will be allocated has recently been agreed. A program team is being established within the Ministry of Justice. The long-term intention is to develop the Te Ao Mārama initiative in every District Court location in the country over time,” he said. Currently, the program has been announced in Kirikiriroa Hamilton, Tairāwhiti Gisborne, and Kaitāia.

Judge Recordon says many people who come before the courts have ongoing problems, and a lot of them are very young. “They’re maybe halfway down the cliff and they’re sort of floundering a wee bit. But there’s still room to haul them back up again. [There’s] plenty of time for most of them if you put the resource in.

“No one wants to go right down to the bottom of the cliff. Maybe one in 20 is hell-bent on going to the bottom, but most of them don’t want to go. They want some help. They don’t want to smash up their partners and get into trouble.” A safety net then, is what Te Ao Mārama aims to unfurl. “Society has a responsibility to put that in place and to make sure it doesn’t have holes in it,” Judge Recordon says.

Twenty years on the Bench. Did he enjoy it? As Judge Recordon responds, his voice rises as if he’s still thinking through an answer he’s already voiced. “Yeah? I do now. I didn’t initially. But only now because I think I can help people. I didn’t initially because I thought I was just part of the system. But it didn’t take me long to realise you can do things that are different.”

Do things differently – and that makes society a better place. ■

From left: Chief District Court Judge Heemi Taumaunu, Judge Recordon, and Chief Justice Helen Winkelmann

It is now no less appropriate that the lawfulness of the union’s decision under its own constitution to arrange the proposed tour should be open to test in the courts

Why aren’t young lawyers clamouring to make partner?

Fiona McMillan

I have just read the article in issue 17 of LawNews about the Legal Workers’ Union review of big firms’ workplace culture, including unpaid overtime.

I applaud the initiatives of all the firms mentioned to make work life fairer and more enjoyable for all. However, the article got me thinking about a wider issue in law, particularly private practice.

At law school I was quite amazed at the people who not only knew they wanted to be lawyers but also partners in law firms. I didn’t really know.

I was encouraged into my law degree by my seventh form English teacher. After telling him I wanted to be a high school English teacher, he promptly suggested I do first year law as a part of my BA and the rest is history. I was pretty open to what the end looked like – lawyer, a role in policy, journalist or perhaps I would go full circle and be a high school English teacher.

I really enjoyed law school. In my penultimate year, I did the internship paper at the University of Canterbury, was placed for my 80 hours at Lane Neave and they offered me a summer clerkship. In short, I absolutely loved it. Maybe it was because I went into it with no set ideas and therefore I wasn’t disappointed. Or maybe because I actually just had no idea. Or maybe, I actually just really loved it.

Once I started my grad job, I was enjoying the work but what got me really excited was being taken to things by the senior solicitors and above, and seeing what they were working on. If I just kept chipping away, maybe I would get to work on files like theirs.

me long-term, but it is good to have on my CV”.

So why? There are two things that definitely aren’t factors. Ability. One of my favourite jobs as a partner is undertaking the interviews for our summer clerk program. These candidates are incredible. Straight-A students, work part time, volunteer, write for their local student magazine. The list goes on. I often say to the candidates that I would have no show getting a role in a firm if I were graduating now. I think they think I am just trying to put them at ease, but it is my genuine view.

And I know it isn’t a fear of working hard. If you can get yourself through a law degree, you are okay with working hard. Everyone I know in the profession works hard.

Also, good luck finding a job these days where you don’t have to work hard. My brother is a butcher and manages the butchery department of a supermarket. Now that is working hard. Long hours, cold, training apprentices, covering staff who call in sick. Once again, the list goes on.

I have been a lawyer long enough to know that things are always grey and there is never one straight cause.

■ Are people looking at their families or the families they want, and thinking partnership isn’t going to work with that?

■ When it comes to becoming an equity partner, is paying money to make money too big of an obstacle now?

■ Are the entry level criteria too high? But are we setting people up to fail if we lower the bar?

Fiona McMillan

But still, at this point, partnership wasn’t really on my radar. It all just looked a bit grown up and I wasn’t really ready to grow up. Slowly but surely, I worked my way up the ranks, got to understand more about what being a partner was about and what I needed to do to get there.

In 2016, I became a partner and, shock horror, I loved it. I love it now. The jury is out as to whether I am actually a grown up!

What worries me is that the people I talk to who are coming through law schools, graduates and lawyers across firms and the country, don’t seem that enamoured with becoming a partner.

Don’t get me wrong, I know there will be many people reading this article who are thinking “whaaaaat, I would kill to be a partner” but my point is, there just don’t seem to be as many people who want it anymore.

I hear a lot of “I will do my two years and then I will find something I am really passionate about” or “I don’t think it will be

■ I am worried that there are lawyers who are looking at us and thinking “thanks, but no thanks”. Are we all looking so stressed and full of our own self-importance that the lives we lead don’t look that great?

Don’t get me wrong, this can be a tough job. I always say it is like I have four jobs – I do law, I supervise people doing law, I need to bring in the law and I am helping to run the business of the firm.

Some days, one of those things is demanding more than the other and I feel like I am not doing the other three jobs justice but fundamentally, I love it. I can’t imagine doing anything else and I don’t really think about doing anything else.

So, what I am saying to partners in firms, big and small, is that these initiatives for staff are fantastic. But we also have to make being in the firm, a firm, appealing on a long-term basis.

Many firms like Lane Neave have a very long history. We are more than 150 years old. There may well be an end date to some firms’ histories if there are no partners of the future. ■

Fiona McMillan is a partner at Lane Neave ■

What worries me is that the people I talk to who are coming through law schools, graduates and lawyers across firms and the country, don’t seem that enamoured with becoming a partner

The legal pitfalls of the ‘Bank of Mum and Dad’

Estimated by Consumer NZ to be a whopping $22.6 billion last year, the ‘Bank of Mum and Dad’ is the fifthlargest lender to owner-occupiers, just behind the big four banks

Reweti Kohere

Tens of billions of dollars are being loaned on the basis of natural love and affection, but the “Bank of Mum and Dad” is fraught with legal peril.

As average house prices have soared in the past two decades, children have increasingly turned to their parents for financial help to purchase their first home. Last year, prices neared $900,000 – up 380% on the average house price of $186,000 in 2002.

Colloquially known as the “Bank of Mum and Dad” (BOMD), parental financial assistance is serious money. Estimated by Consumer NZ to be a whopping $22.6 billion last year, the BOMD is the fifth-largest lender to owner-occupiers, just behind the big four banks.

The most popular form of assistance is contributions toward deposits (61%). But for one in 10 parents, their help has put them under moderate to serious financial strain. Most parents dipped into their own savings, but nearly one in four cut back on expenses to make their contribution possible.

Consumer NZ also revealed that three out of five parents didn’t expect to be repaid. So, what are the consequences of parents making financial “gifts” to their children? What are the advantages of lending them the money instead? How might the bright-line test rear its head? And how can couples reconcile an agreement to contract out of the Property (Relationships) Act 1976 with a moral promise to love and do right by one another

should their relationship end?

“There’s all that kind of emotional overlay that goes with it,” said Davenports Law managing director Tammy McLeod at ADLS’ recent Cradle to Grave conference in Auckland. “So it’s quite fraught.”

An ‘economic thing’

Speaking on the Bank of Mum and Dad – Avoiding Traps

When Helping Children Purchase a Property panel, moderated by Burton Partners senior associate Ian Jespersen, McLeod elaborated on the emotional overlay accompanying parental financial assistance.

“The whole de facto relationship thing makes me feel like a bit of a dinosaur for saying this but these days, people get into these relationships really quickly and so it’s almost like an economic thing – it’s cheaper to live together rather than to run two households. So they might not be your forever partner, they’re just the person you’re with at that time. There’s all those things to factor.

“You also have KiwiSaver, which has become a massive thing. I’ll make me the better person [in this example]: ‘I’ve got $50,000 [in my] KiwiSaver and my partner’s got only $25,000. It’s really important to me that I get back my $50,000 and that he doesn’t have a share in that, in the event we split,” she said.

“And then, of course, the issue of ‘Mum and Dad are wanting us to get into a contracting-out agreement. Do they think we’re going to separate?’”

Using a hypothetical case of George and Sam buying their first home with help potentially from George’s parents or their family trust, Jespersen asked what would be the downside of George’s parents making a gift to their son.

McLeod explained the gift would form part of George and Sam’s relationship property. Without a contracting-out agreement

Continued on page 13

The responsible lending code was also a factor for banks to take into account in assessing a guarantor’s ability to service a guarantee

Continued from page 12

(made under s 21 of the Property (Relationships) Act) , Sam would be entitled to half of George’s parents’ gift if the couple split – an outcome potentially contrary to George’s parents’ intention.

Expectations

Convey Law senior associate John Jon added that George’s parents’ financial position would be much stronger if they loaned the money instead. A loan agreement meant they could charge interest and had a legal promise of repayment.

Jon said other issues could arise when a relationship changed, “especially for Asian parents and families. It’s very difficult to initiate talk regarding a s 21 agreement or start talking about money being paid back.

“I’m not actually speaking on behalf of Asian people, but I am Asian. From my experience, yes, there are a lot of relationships where parents are expected to help their children. And when they do, there’s sort of a fair trust agreement or an agreement the parents will be looked after. But if it’s not formalised, in the end they might lose out when they retire.”

Pidgeon Law director Joanna Pidgeon warned that banks might not like parents charging interest on loans. “You might have what you want to do, but what they will let you do is another thing.”

Buy-in at the beginning

Jespersen asked McLeod how George should deal with a distribution made by his parents’ trust.

As long as the trustees stipulated they wouldn’t charge interest, they wouldn’t call up the loan until the property was sold and they didn’t put a caveat or other charge on the title, then the banks were usually fine with the parties having a loan agreement, she said.

Using a trust can come in handy here. “They speak a different language and so it’s a lot easier to take away that emotional part of what’s actually happening with family dynamics. This is for George to say ‘this is Mum and Dad’s trust, the trust is lending us the money. There’s an independent trustee – hopefully – and this is the way we have to do it because it’s not actually Mum and Dad’,” she said. “It’s something different to them.”

McLeod would recommend George’s parents lend money to both George and Sam. “In the event they separate, there’s no argument by Sam to say ‘well, you borrowed that money from your mum and dad’s trust, you have to pay that back with your share’.

“Sometimes, to clients, that sounds counter-intuitive because they’re thinking they’re wanting to protect what they’re lending to their children, for their children. It does sound counter-intuitive, but absolutely always make sure the loan is to the two of them so they’ve both bought into that loan,” McLeod said.

“Under the Property (Relationships) Act, I do think you’d be able to argue that loan was for the purposes of purchasing something, which is relationship property. But you don’t want to be arguing that at the end. You want the buy-in at the beginning.”

Living in cars or parks

What about the tax implications for parents or family trusts choosing to lend and expecting to be repaid, either through charging interest or receiving a share of the sale profits?

If the latter, “it doesn’t matter what you call that or whether that’s a side agreement or not – if that payment is received in respect of the money lent, it’s still treated as effectively interest under the financial arrangements rules”, Tomlinson Law principal Stephen Tomlinson said.

“A lot of people would probably think the bright-line test is in play there because you’re getting some of the proceeds from

Continued on page 22

Under the Property Relationships Act, I do think you’d be able to argue that loan was for the purposes of purchasing something, which is relationship property

Photo: Jessie Casson / Getty Images

Trump indictment unsealed: a criminal law scholar explains what the charges mean and what prosecutors will now need to prove

This is not a ‘gotcha!’ situation where someone has kept 200 cases of documents that have been carefully screened and one or two documents accidentally got in the mix

Federal prosecutors on 9 June 2023, unsealed the indictment that spells out the US government’s case against former President Donald J Trump, who is accused of violating national security laws and obstructing justice.

The 49-page document details how Trump kept classified government documents – including papers concerning US nuclear capabilities – scattered in boxes across his home at his Mar-a-Lago resort in Florida, long after his presidency ended in 2021 and the government tried to reclaim them.

The indictment also shows Trump shared classified national defense information with people without any security clearance, including someone on a political action committee. There are 38 felony charges against Trump; 31 of these counts relate to withholding national defense information.

Five counts relate to concealing possession of classified documents, and two relate to giving false statements.

“My office will seek a speedy trial in this matter, consistent with the public interest and the rights of the accused,” said US special prosecutor Jack Smith, who was appointed to oversee the investigation into Trump’s holding of the documents.

The Conversation spoke to criminal law scholar Gabriel J Chin at the University of California, Davis School of Law about the most important takeaways from the unsealed indictment – and the new, open questions it presents about Trump’s alleged criminal activity.

What is the significance of the Justice Department’s unsealing the indictment on June 9, ahead of Trump’s turning himself in to authorities?

In the federal system, indictments are not automatically sealed and so either the US special counsel did not request it to be sealed or a judge refused to seal it.

I suspect it is more likely the former. This is not a case in which there are active components of the investigation still going on. The case was ready to go and there is no difference, from the government’s point of view, in disclosing the indictment today or not, because the case is in the can.

What stands out about the indictment?

One thing that really stood out was the extensive personal involvement of Donald Trump himself in this alleged activity. Normally, when a big company gets sued, the CEO doesn’t drop everything and start going through documents. That’s what various other professionals are for. The details of Trump’s alleged direct personal involvement in this case were striking.

Second, one of the challenges here is that prosecutors are trying to hold Trump responsible for an affidavit that a lawyer signed that included untrue statements that Trump

Continued on page 13

The sentence on all counts could be made to run consecutively, which would lead to a sentence in the neighbourhood of 400 years

Photo: Drew Angerer Getty Images

Continued from page 12

did not have the documents the government was asking him to return. And to make that case stick, prosecutors will really have to show that Trump himself had some involvement with that.

Count 32 in the indictment focuses on conspiracy and charges against Trump and his aide Walt Nauta, as well as “others known and unknown to the grand jury”. The US attorney general is reserving the right to say other people were conspirators, and that will have consequences.

Who are these other people? Is the government’s theory that Trump’s lawyers were innocent dupes and he fed them false information, or were they knowing participants in this criminality? No one else is named, but we are told –by that “others known and unknown” – that there definitely are others.

Pages from the FBI’s redacted search warrant affidavit for Trump’s Mar-aLago estate are shown. Mario Tama/Getty Images.

Why did the indictment focus on the movement of the boxes that held classified information at Mar-a-Lago?

The major reason is that all of the charges require some sort of intent. None of these charges would apply to someone who is trying to obey the law. Prosecutors have to show that what was going on here was an intentional, calculated act.

Another reason goes back to former Secretary of State Hillary Clinton,  former Vice President Mike Pence and President Joe Biden, who have faced their own inquiries into possessing classified documents.

When former FBI Director James Comey said in 2016 that he wasn’t charging Clinton for using her personal email for government work, there were considerations that led him to do that.

People who make honest mistakes and cooperate in good faith don’t get charged because, first, it is difficult to make the case of wrongdoing. And there is some level of fairness to say that you don’t want to make public service a booby trap, where if you drop your guard for a second you could wind up in prison.

In this indictment, prosecutors are making an effort to tell the full story and explain why the actions detailed are wrongful. They appear to want to explain why the circumstances in this case justified charges and that this is not a “gotcha!” situation where someone has kept 200 cases of documents that have been carefully screened and one or two documents accidentally got in the mix.

What’s the significance of the many felony counts facing Trump?

Under the sentencing guidelines, which are usually followed, conviction on all counts could likely lead to a relatively short sentence or to no incarceration at all.

However, it is important to note that in theory, Trump could be sentenced to the maximum on each count. The sentence on all counts could be made to run consecutively, which would lead to a sentence in the neighbourhood of 400 years. I do not think that would ever happen, but it does underscore the power of the judge in sentencing a case like this. ■

Gabriel J Chi is the Edward L Barrett Jr Chair and Martin Luther King Jr Professor of Law, University of California, Davis ■

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

Harmans is a long-established Canterbury law firm operating from modern offices in the Central City, located close to parking. We are committed to gender equality and the continued development of our lawyers’ skills and knowledge base.

Senior Lawyer or Associate – Seniors Law Team

A position is available for a senior lawyer or associate to lead, grow and manage our Seniors Law team.

You must have sound knowledge and experience in seniors law, including wills, trust and estate planning, estate administration, ORAs, EPAs, rest home care and subsidy matters, and property ownership. Property law experience will be a requirement for this role, while prior staff management and team leadership would be advantageous. You will possess a desire and drive to build a practice of your own within the firm. There will be opportunity for career advancement for the right candidate.

As we value strong and long-standing relationships with our senior clients, you will have excellent inter-personal skills and be able to display empathy and patience. You will also need to be comfortable running seminars and writing articles on various topics affecting seniors, and have an ability to communicate clearly and effectively. We provide marketing resources to support this area of law.

Senior Lawyer or Associate – Trust Law Team

A position is available for a senior lawyer or associate to lead, grow and manage our busy Trust Law team. Both part-time and full-time candidates will be considered.

The successful candidate must have sound knowledge and experience in trust law, including the establishment, administration, reporting and winding up of trusts. They must also be ambitious and enjoy this field of law. Property law and other asset protection experience will be a requirement for this role, while prior staff management and team leadership would be advantageous.

As we value strong relationships with our clients, the successful applicant will possess excellent inter-personal skills. They will also need to demonstrate a desire and drive to build a practice of their own within the firm. There will be opportunity for career advancement for the right candidate. We offer a competitive remuneration package commensurate with experience, in a friendly, fun, and supportive professional environment. Flexible working conditions are negotiable.

Please respond by email with a curriculum vitae, academic transcript, and covering letter to Practice Manager, Julie.knowles@harmans.co.nz

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Morgan Coakle is delighted to announce the promotion of Elizabeth Heaney to Associate.

Elizabeth joined Morgan Coakle in January 2019, bringing with her significant expertise in the areas of Relationship Property, Trust, and Estate Litigation.

Elizabeth has cemented herself as an invaluable trusted adviser to both clients and colleagues as she consistently applies her exceptional legal skills, along with her clear and empathetic communication style, to all of her interactions.

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The Morgan Coakle Partners are proud to promote Elizabeth to the position of Associate and are excited to support her ongoing progression and success.

Continued from page 13

the sale of the property. It’s not the bright-line test where that stems from the loan. It’s just basically interest under the financial arrangements rules.”

The bright-line property rule stipulates property owners who sell residential property within 10 years of purchase (or five years if the property is a new-build), must pay income tax on any gain on the sale unless an exception (if, for example, it was the family home) applies.

Tomlinson said shared ownership didn’t stop George and Sam from being exempt if the property they purchased with George’s parents was their main home. The exemption could also apply if the property, or part of it, was held in George’s parents’ trust, provided George, as a beneficiary, was living in the property.

However, George’s parents couldn’t have a main home of their own or, if they did, it would have to be the property that’s being sold.

Tomlinson explained that a principal settlor of a trust was someone who has “basically transferred the same or the most value to that trust. So, putting George on the trust deed, for example, as the settlor of the trust doesn’t make him the principal settlor. No doubt it will be George’s parents, or one of them at least, who would be the principal settlors of the trust.

“So, unless George’s parents are vagrant, living in a car or in various parks, and they don’t have a main home, you would expect the main home exclusion will not apply to the part of the property that’s held by the trust.”

Guarantees and pullbacks

Jespersen raised another hypothetical: “Money has been borrowed from the bank and the banks really do love their security. And often, as these younger children are not high on the income brackets, guarantees come into play…If George’s parents are asked to guarantee, how are they best to go about it?”

Pidgeon said they should ideally try to limit the guarantee, although banks are reluctant to let that happen. Guarantors “don’t necessarily get notified if the borrowers go and default. If you have a mortgage over your own home and you’re giving a guarantee, your home could end up being sold. What if they borrow more under the loan and you aren’t told – and your exposure grows? There’s so much potential liability.”

A written agreement, where the borrower might refinance within a period of time and seek to get the guarantee removed,

How can couples reconcile an agreement to contract out of the Property (Relationships) Act 1976 with a moral promise to love and do right by one another should their relationship end?

could prove useful. However, Pidgeon warned of the possibility of pullbacks lasting a couple of years, even if guarantors were freed. “You might be out, but not completely out.”

The responsible lending code was also a factor for banks to take into account in their assessment of a guarantor’s ability to service a guarantee, she said. “You may find, although you’ve got a reasonable amount of equity, you don’t meet the criteria of income to actually be able to provide a guarantee.”

While it was natural for parents to help out their children, “they do need to think about themselves and what they’re intending to do down the track, rather than getting caught in that guarantee and not being able to get out of it”.

Different languages

One of Jespersen’s last questions raised the issue of whether making gifts conditional could count as duress.

McLeod answered: “The first thing is [that] a conditional gift is an oxymoron – it’s a gift or it’s not. But as John correctly identified, if it’s a condition precedent – I will give you this on the basis you enter a s 21 [agreement] first – it could be considered duress. But I don’t actually think it is.

“If you are in a position where you can give money to your children, and you don’t expect it back, then why should they not do something that you want them to do to enable that gift to happen? That’s not a legal position, that’s my personal opinion.”

Pidgeon added: “Unless the kid’s wanting something from you, you’re not forcing the money on them. They’re saying ‘please, can I borrow some money from you?’”

McLeod agreed. “To me, it’s no different than saying to my 13-year-old, ‘I’ll pay you $5 if you wash the car’ – sort of. I don’t know what others in the audience think, but I don’t think it’s duress. I think it’s modern practice, it’s very common. Back to what I said at the beginning, people get into these relationships much more readily than they would have done in the past and so it’s economic convenience,” she said.

“People talk in different languages. You have 16-year-olds talking about their partners. No one has boyfriends [or girlfriends] anymore. The whole language has changed. So, just the use of that language almost throw them into the whole Property (Relationships) Act.”

Jespersen didn’t think it was duress either. “It’s just prudent,” he said. “But I am interested in your modern slavery – your car-wash for $5. My car will be around at your house at 9am on Saturday.” ■