LawNews - Issue 25

NEWS Jul 30, 2021 Issue 25

Inside ■ IMMIGRATION LAW

Kris Faafoi faces judicial review P03

■ CONTRACT LAW

How to make force majeure clauses work P08

Professor takes Immigration Minister

TO COURT

adls.org.nz

Contents 03-04 IMMIGRATION VISAS TREATIES

Immigration Minister faces judicial review over visa halt

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

05 EMPLOYMENT ERS COVID-19

Committee challenges govt over telephone dispute resolution

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

06-07 PEOPLE PLANET PROFITS

What does sustainability mean for law firms?

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

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12 CPD IN BRIEF

Photo: Richard Drury / Getty Images

13 EVENTS

Sustainability: ‘one of the most horribly misunderstood words in common usage’

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

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

Cover: PeopleImages / Getty Images

02

Jul 30 2021 Issue 25

IMMIGRATION LAW

Professor sues govt over visa-lapse decision

minister failed to properly consider the obligations created by international conventions, which New Zealand ratified, as his decisions continue to separate partners and families.

Dalley says the decisions also result in Maybe a year-and-a-half ago it was the right thing to do but discrimination on the basis of race, religion, sex when people have now been separated for long periods of and sexual orientation “as these social groups are time, the reasonableness of that starts to come into question not always permitted to live with their partners, depending on where they are based”. Freedom from discrimination is protected by the New Zealand Bill of Rights Act 1990.

These obligations required him applications have now lapsed, this Jenni McManus to consider the effects of continued 10,000-strong cohort who, for various separation of partners and children of reasons, were not living together when Professor Michael Witbrock, who teaches computer New Zealand citizens and residents, their applications were made, appears to science at the University of Auckland, faces a thousands of whom have been seeking have been overlooked by the minister.

Catch-22 situation: his husband cannot join him in visas to rejoin their families for the past Dalley, who convenes ADLS’ New Zealand because they don’t meet Immigration 18 months.

Immigration and Refugee committee, New Zealand’s living-together criteria for a According to the statement if claim, says Faafoi has also given the public no partnership visa.

Faafoi failed to properly consider the reason for his decision, apart from some But the only reason they’re not living together Michael Witbrock obligations that several international general ‘to protect the border’ remarks. is because Immigration Minister Kris Faafoi earlier treaties placed on him “with regard to Many in Witbrock’s position applied this month decided to lapse all overseas visitor visa for visitor visas at the suggestion of INZ itself, because the continuous separation of partners and families of applications, meaning Witbrock’s husband, a Chinese both New Zealand citizens and residents, and those they weren’t eligible to apply for partnership visas. citizen, cannot return to New Zealand anytime soon.

In Witbrock’s case, it is difficult for same-sex couple on temporary visas whose partners and children have Partnership visa applications are not affected by made visa applications to join them in New Zealand. to live together in China, “given the lower recognition the minister’s decision but the partners must have “It is clear that in excluding partnership-based of same-sex relationships in China compared with been living together at the time the application was applications from partners of New Zealand citizens, New Zealand,” Dalley says. He wonders whether the made. residents and temporary visa holders from this lapsing minister considered the impact on families when he The couple married in Auckland in August 2019, exercise, the minister recognised that he was required made his decision. then travelled to the United States. Whitbrock’s to consider his international convention obligations “Maybe a year-and-a-half ago it was the right thing husband then applied for a New Zealand visitor’s but failed to properly do so when considering the GVV to do but when people have now been separated for visa in November 2019 so the pair could be reunited. (general visitor visa) applications lodged with INZ long periods of time, the reasonableness of that starts Immigration New Zealand (INZ) determined they were by partners of New Zealand citizens, residents and to come into question.” in a genuine and stable relationship and was prepared temporary visa holders.”

Witbrock describes the living-together criteria as to grant a visa, but Covid-19 intervened, and all visitor The minister also failed to consider whether “absurd’. “It is inherently discriminatory against classes visa applications were quickly suspended. there were other measures available that would have of people who have enhanced difficulty in doing so,” Eighteen months down the track, the couple been less restrictive on the applicant’s rights, Dalley he says. “This whole business of denying relationships communicate every day via WeChat but haven’t seen says. “Had the minister considered the international is particularly discriminatory against gay people. It’s each other since January last year. Further frustrated conventions as required of him, he would have come intolerable.”

by Faafoi’s move, Witbrock last week filed for a judicial to a different conclusion.”

The turning point for Witbrock came when review of the minister’s decision to lapse visitor visa The second prong of the application is applications. The respondents are Faafoi and the chief Dalley made an application to INZ to review his discrimination. Many countries do not permit LGBTIQ+ file and discovered that INZ had been prepared to executive of MBIE, Carolyn Tremain. partnerships, much less w allow them to live together.

Auckland lawyers Stewart Dalley and Pooja Sundar, grant a visitor visa to his husband but had failed to communicate this to the couple. It was then decided to “Any co-habitation would have to occur at risk of harm who’re acting for Witbrock, say up to 10,000 others in or detention to the couple,” Dalley says.” ■ file for a judicial review. similar situations could be affected by the outcome of The grounds for the application are that the the case. Of the approximately 50,000 people whose 03

Briefs Honorifics in court

DEAN, LAW SCHOOL

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• Meeting the challenges of diverse student cohorts. Enhancing participation and success in law courses from Māori and Pacific student groups.

• Reaching across school/faculty/university boundaries to collaborate and achieve outcomes and improvements for the AUT Law School, including pursuing and engaging potential inter-disciplinary and trans-disciplinary opportunities.

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Closing date for applications is Sunday 8 August.

04

On 23 July LawNews reported that gender honorifics were no longer needed when female counsel introduced themselves in court.

LawNews has since been told that the judicial committee charged with addressing the issues arising from the current practice has not yet provided its final advice to the Chief Justice. Justice Susan Glazebrook, who chairs the committee, Tomo Mai, (Inclusive Workplace and Courtrooms Committee), told LawNews there were a number of options being considered and the profession would be consulted about these in coming months.

The committee also needed to consult with Chief District Court Judge Heemi Taumaunu to ensure the implications of Te Ao Marama for courtroom etiquette were taken into account before settling on the final position.

On the move The Supreme Court will sit in Auckland for a week in November – the first time it has left its Wellington home court. The court also intends sitting in Christchurch in the next year.

Chief Justice Dame Helen Winkelmann says the move reflects ‘the importance of enhanced accessibility’ of New Zealand’s highest court.

“The Supreme Court hears cases that originate from all parts of the country, so it is appropriate that it is accessible to the communities affected by its decisions,” she said. “Sitting for a week in Auckland provides the opportunity for interested members of the public to see how we operate and the same is true for the Auckland legal community – the profession and law students. The court will sit in the week beginning 15 November in the main courtroom in the Auckland Environment Court.

The cases being heard include Royal Forest and Bird Protection Society of New Zealand Inc v New Zealand Transport Agency, which is about the proposed four-lane east-west link. The cases is set down for 16 and 17 November. ■

Solicitor – Partnership Potential West/North-West Auckland A unique opportunity exists for a qualified professional with partnership aspirations to join our busy team. We are a thriving suburban general practice with a modern approach.

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Jul 30 2021 Issue 25

EMPLOYMENT LAW

Committee challenges govt on dispute resolution by phone

2000 specifically contemplates that mediation services may include services that ‘assist the smooth conduct of employment relationships’ as well as services which assist parties to ‘resolve, promptly and effectively, their employment relationship problems’. Specifically, the committee’s concerns are: ■ By having the ERS fall outside of mediation, The committee believes a quick telephone resolution might none of the statutory protections applying to be entirely inappropriate for situations such as workplace people participating in employment mediation apply to people using the ERS. bullying and might create even more harm.

■ Information held by the ERS may be subject to the Official Information Act 1982 or be used as evidence in proceedings It has asked MBIE to take these in the Employment Relations Bronwen Newcombe concerns into account during the review.

Authority or the Employment Court. However, information held by The ADLS Employment Law committee has written to They include: MBIE’s mediation service is protected the deputy CEO of MBIE, expressing serious concerns ■ The ERS was established during by statute. about the implementation and application of the Early crisis and uncertainty and after the Resolution Service (ERS). introduction of the wage subsidy for ■ ERS members do not give legal eligible businesses in the private advice to the parties. The committee Specifically, the committee is concerned that the sector. The purpose of the ERS is concerned that in some situations ERS appears, without notice, to have expanded its was to deal with wage subsidy issues Bronwen Newcombe this could mean a party engaging remit beyond the purpose for which it was set up: to between employers and employees. with the ERS would not understand deal with Covid-19 wage subsidy disputes between However, from what the committee his or her legal rights and employers and employees. The committee is also understands, few (if any) of these disputes now go entitlements in relation to a particular situation concerned that the ERS is not characterised as a to the ERS. or dispute (including, for example, that an employee ‘mediation service’, meaning that users and ERS staff has only 90 days within which to raise a personal lack the normal safeguards and protections available Nevertheless, the scheme remains operational and grievance against their employer). Therefore, one or under mediation. it appears its scope has both parties could unwittingly forego their legal rights The committee’s widened but without any The committee is and entitlements, along with a much better potential approach to MBIE follows a clear boundaries or outcome or resolution, by agreeing to participate in meeting in June 2021 where concerned that the ERS assessment of the the ERS manager and an appears, without notice, to implications. For example, it the ERS. officer joined committee appears the ERS can now The ERS was not well-publicised when it was set have expanded its remit members to provide more be accessed for workplace up, meaning some employment law practitioners may beyond the purpose for information about the ERS bullying situations. The not be aware of the service. which it was set up: to and its service. committee believes a quick It is intended to provide a quick, early and informal The government set up telephone resolution might service to resolve workplace issues by telephone. deal with Covid-19 wage the service in September be entirely inappropriate for Parties can access the ERS through the subsidy disputes between situations such as workplace government website www.employment.govt.nz or by last year as part of its employers and employees bullying and might create Covid-19 recovery and calling the Employment New Zealand Service Centre response program. The pilot even more harm. on 0800 209 020. is set to end on 6 September There are six early resolution officers, two senior ■ The ERS is held out to 2021 and MBIE is reviewing the scheme to determine early resolution officers and one manager, all of whom be an ‘early resolution service’. Specifically, it is not if it should become permanent and, if so, in what come from a variety of backgrounds. ■ categorised as a mediation service. The capacity. committee has serious concerns about this During the discussion between the committee characterisation and believes the services offered Bronwen Newcombe is a director at Davenports and the ERS members, it became clear that while the by the ERS do and should fall under the auspices Law and leads the employment law team. She committee supports the principle of early resolution, it of mediation. is also a member of the ADLS Employment Law has significant and serious concerns.

Further, s 144 of the Employment Relations Act committee ■ 05

SUSTAINABILITY

What sustainability means for law firms Diana Clement

Customers may distrust businesses that aren’t environmentally friendly. It can damage your reputation with customers, investors and the wider public

carbon reduce certification.

Chapman Tripp has appointed a community director who oversees the environmental work and community engagement across four workstreams: contributing to the community, pro bono work, being a responsible employer and working sustainably.

The firm is one of a handful of law firms that are members of the Sustainable Business Council.

When MinterEllisonRuddWatts partner Lloyd Kavanagh discovered that his office cleaners weren’t paid the living wage, it struck right to the heart of the firm’s sustainability journey. Minters’ own staff were all paid the living wage, but that didn’t extend to contract cleaners and caterers.

“It’s not good enough to have your own house in order. We need to look for those who supply us,” Kavanagh says. “So, People, planet, profit we went to that employer and rather surprised him by saying, ‘we're going to insist on paying you more but on a condition, For lawyers, like most people, getting your head around and the condition is that you pass that on in the form of living the concept of sustainability isn’t always easy. What does wage for the people who work for us’.” sustainability even mean? The word has The cleaners were ecstatic. “These many definitions and contexts.

Sustainability guys just came in with huge smiles, a For many, it’s largely about climate at its core couple of them had written cards saying, change and ecology. But that’s just one ‘thank you so much, we love working at revolves around prong, says Craig Fisher, consultant at RSM MinterEllisonRuddWatts’. We had some Global. “I think it's one of the most horribly attraction, fantastic heart-warming conversations.” misunderstood words in common usage,” he development Kavanagh recounted the interaction at says. a joint Minter/Kernel event in June on the For Fisher, sustainability is about people, and retention of future of sustainability. Initially, he wasn’t planet and profit. Profit could also be good people keen on continuing the discussion with purpose, with profit as a by-product, he says.

LawNews because Minters’ sustainability But the business must first be sustainable, journey is, he says, a work in progress. which at its core revolves around attraction, Most law firms are now taking the same development and retention of good people. route. At Chapman Tripp, for example, it started as far back as To do so, the business needs clarity about what it offers: a 2007 with Project Footprint, which focussed on awareness of sensible business model that is profitable, a structure that is the firm’s environmental impact. flexible and that can change with the times, and an eye on the Sustainability as a corporate goal has grown. It goes to the market and market environment changes to ride the current heart of the firm’s social and moral licence to operate, says waves and future trends and take opportunities that may Chapman Tripp partner Edward Scorgie. Its current goals present themselves, he says. centre around environmental and community targets. One of its key indicators is carbon emissions, Scorgie says, and the firm announced in May it had recorded a 66% drop in Continued on page 07 emissions over two years, meeting the requirements of Toitū’s 06

Lloyd Kavanagh

Craig Fisher

Jul 30 2021 Issue 25

Continued from page 06 Reluctant interviewee Kavanagh’s personal journey started when he filled in for an Australian colleague at a United Nations Environment Programme Finance Initiative (UNEPFI) conference in 2017. He spoke about the responsibility of managed funds to take into account environmental issues when making investments..

The event was an eye-opener for Kavanagh, a banking and financial services partner. “What I learned rocked me back a little bit on my heels,” he says. “A whole bunch of East Asian economies, for example Japan and Singapore, were well ahead of us in terms of thinking about the responsibility and the importance of considering ESG (Environmental, Social, and Governance) and particularly the climate change aspect in the decisions that they make in their everyday job. So that really [made] me very actively and personally interested on that topic.”

Back on home turf, Kavanagh took action. He realised it wasn’t just the province of environmental lawyers to take a stand about the environment. “Over the past five years [it has] become increasingly evident that we all need to do our part to make a positive impact for Aotearoa New Zealand. It’s the responsibility of all of us who are involved [in] advising

banks, advising fund managers, advising corporates on their responsibilities.”

At MinterEllisonRuddWatts, Kavanagh found like-minded souls in Rachel Devine, a partner, environmental lawyer and sustainability lead, and Stacey Shortall, a dispute resolution and litigation partner.

In February this year at a strategic retreat it was recognised that the firm’s sustainability strands needed pulling together into one vision: the recently published Sustainability Strategy 2025.

The mission arising from that meeting was to “make a positive sustainable impact for our people, our clients, our communities and our planet because we are passionate about helping to shape Aotearoa New Zealand’s future”.

The strategy was divided into three pillars: kia toitū te tangata (caring for clients and communities), kia toitū te taiao (having a positive sustainable impact on the planet) and kia toitū te tikanga (leading the normalisation of sustainability in business).

Edward Scorgie

Sustaining benefits The Sustainable Business Network says a sustainable business is one that generates profit while improving societal

Continued on page 14

BSA Law joins Martelli McKegg from 1 August 2021

The Partners of Martelli McKegg are delighted to welcome Vanessa Dew, Philip Blank, Vina Singh and Greg Smith of BSA Law to the Partnership. They bring over 40 years of experience in Commercial Property, acting for some of Australasia’s leading property owners and investors with commercial and residential property management, development and leasing issues.

bsalaw 07

CONTRACT LAW

How to draw up and apply force majeure clauses

Parties cannot rely upon force majeure to excuse failed performance if there is no clause in the contract

Chitty on Contracts states that a force majeure clause is normally used to describe a contractual term by which one (or both) of the parties is entitled to cancel the contract or is excused from performance of the contract, in whole or in part, or is entitled to suspend performance or to claim an extension of time for performance, upon a happening of a specified event or events beyond the party’s control.

Such clauses may assume a variety of forms but in New Zealand the term ‘the usual force majeure clauses to apply’ has been held void for uncertainty. Force majeure clauses have been said not to be exemption clauses, although it is difficult to draw any clear line of demarcation between the two types of clauses since the effect of each may relieve a contracting party of an obligation or liability to which the party would otherwise be subject.

The Laws of New Zealand state that “in practice, many contracts expressly provide for performance to be excused if rendered impossible by unavoidable causes such as acts of God, the Queen’s enemies, force majeure or vis major”. Stipulations of this nature (often generally called force majeure clauses) are effective, provided they are not uncertain in their terms. A force majeure clause must be construed in each case with regard to the nature and general terms of the contract and in particular with regard to the precise words of the clause.

Many franchise agreements contain a force majeure clause – ie, a clause governing events happening beyond one’s control like an act of God or a pandemic. Each force majeure clause may be different but the effect is the same: it relieves the party that is unable to perform, or is delayed from performing, their obligations under an agreement.

In my opinion successful initiation of force majeure clause requires: ■ a triggering event. Each clause will detail a variety of triggering events; and ■ that the effect of the triggering event means you are unable to legally or physically perform your obligations under the agreement.

08

Photo: John Crux Photography / Getty Images

Stewart Germann

Both elements must be proven to successfully use the force majeure clause to get out of any obligation. What will count as a triggering event will depend on the exact wording of the clause in the document.

Superior force A contract might specifically provide for and manage the legal effect of external events by including a force majeure clause. Force majeure literally translates from the French as ‘superior force’. Although there is no authoritative common law definition, the court in Matsoukis v Priestman & Co described it as meaning ‘a circumstance beyond the control of a party to a contract, which enables that party to escape liability for failing to perform the contract as the result of the circumstance’.

The concept of force majeure has been formulated in various ways but generally involves the following elements: the event must be outside the control of the parties; the

Continued on page 09

Adverse changes in economic or business circumstances, unless expressly provided for in the contract, are generally not recognised as events of force majeure

Jul 30 2021 Issue 25

Continued from page 08

performance of the relevant contractual obligations must be prevented, hindered or delayed; and the effect must be that the event cannot be avoided or overcome by reasonable efforts to mitigate.

The concepts of force majeure and frustration are similar because they both hinge upon external events that are beyond the control of the parties. However, they are fundamentally different in nature because frustration is a doctrine of the common law whereas force majeure is a creature of contract with no common law existence outside the contract.

Parties cannot rely upon force majeure to excuse failed performance if there is no clause in the contract. The provisions must be express and will not ordinarily be implied in the contract. Consequently, force majeure clauses are ultimately a matter of agreement between the parties and can be drafted to suit the particular circumstances.

Diverse events A force majeure clause must first define the ‘events of force majeure’. The parties might agree upon a list of specific events. By itself, force majeure has been construed to include diverse events of natural or human intervention, such as ‘acts of God’, earthquakes, epidemics and the complete dislocation of a business or breakdown of machinery due to a universal strike. Other frequent examples include wars, public disorder, embargoes and changes of law or government policy.

However, the diversity of the cases makes any exhaustive list impossible.

Contracts sometimes refer to force majeure clauses as hardship clauses. Such a clause has the effect of defining the relevant party or parties’ primary obligations so if the relevant event occurs, there will be no breach and hence no contractual liability to pay compensation. Typically, a force majeure clause operates to qualify an obligation so that upon the occurrence of a particular event, no contractual default arises. But such a clause might have the effect of suspending the contract or allowing a party to cancel it.

A non-exhaustive list of specific force majeure events is often followed by a catch-all phrase, such as ‘any other events beyond the control of the parties’. However, such drafting runs the risk of attracting the ejusdem generis rule of contractual interpretation, whereby general words may be read down by reference to the type of events listed before them. Adverse changes in economic or business circumstances, unless expressly provided for in the contract, are generally not recognised as events of force majeure.

It is often said that force majeure events must be unforeseeable to the parties. If the parties anticipated the risk

they might have taken a voluntary assumption of risk, which excludes reliance upon force majeure.

The pandemic Applying the doctrine of frustration to contractual disputes arising from the impact of Covid-19 acts is untested. Parties who entered into contracts before the escalation of the crisis may be left unable to perform their obligations in the way originally contemplated by their agreement, if at all. Coupled with challenging economic times, there will likely be an increase in clients questioning the ability to cancel or vary contracts entered into before the Covid-19 restrictions were implemented.

While some contracts will include provisions that contemplate circumstances where parties are unable to perform their obligations through no fault of their own, many will not. In those circumstances, the doctrine of frustration will apply. That doctrine applies where unforeseen events occur that render performance of a contract impossible or possible only in a radically different way from that originally contemplated.

In New Zealand, Part 2, Subpart 4 of the Contract and Commercial Law Act 2017 (NZ) applies to frustrated contracts. As a general rule, the doctrine operates to discharge the contract where, “It appears from the nature of the contract and the surrounding circumstances that the parties have contracted on the basis that some fundamental thing or state of things will continue to exist, or that some person will continue to be available, or that some future event which forms the basis of the contract will take place; and an event in relation to this underlying basis of the contract renders performance impossible or only possible in a very different way from that contemplated, but without default of either party.”

The party seeking to apply the doctrine needs to show there has been a failure at the heart of the contract and that the relationship contemplated by the parties is fundamentally altered by events outside their control. It is not enough to demonstrate that the party has been deprived of some benefit or that the changed circumstances will create hardship or inconvenience.

Covid-19 had a dramatic effect on commercial leases in New Zealand. Some commercial leases were on a modern form of Deed of Lease which contained the important ‘no access clause’ but older leases did not. The ‘no access’ clause is contained in the Deed of Lease published by ASLS. The meaning is best explained by looking at clause 27.5: “If there is an emergency and the tenant is unable to gain access to the premises to fully conduct the tenant’s

Stewart Germann

All franchise agreements in New Zealand should contain a robust force majeure clause

Continued on page 15 09

FEATURED CPD

FINAL NOTICE

PROPERTY TAX RISK

The brightline test: fishhooks for your clients Webinar 1 CPD hr Tues 3 August 12pm – 1pm Presenters Jayshree Khushal, Technical Specialists Network, Inland Revenue; Helen Johnson, partner, PwC Legal and Nicky Harrison, director, PwC Legal

With the government yet to announce the final scope of its planned extensions to the brightline test and the application of the interest limitation rule, the devil will be in the detail. This webinar will shed some light on the new rules and Inland Revenue’s focus on compliance, using case studies to highlight the issues and traps, and discuss the risks to convey to clients.

Last chance to register FIND OUT MORE

Reflections on the Bathurst decision

Webinar 1 CPD hr Wed 18 August 12pm – 1pm Presenter Gillian Coumbe QC, O’Connell Street Barristers

CONTRACT INTERPRETATION ADMISSIBILITY

The Supreme Court’s highly anticipated, and unanimous, judgment in Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85 is out. This webinar will examine two aspects of this important decision: the court’s agreement on the general approach to admissibility of evidence in contract interpretation and the test for implication of terms. There are, however, some surprises.

FIND OUT MORE

How to conduct parole hearings CRIMINAL PAROLE PRACTICAL

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In Person | Live Stream 1.5 CPD hrs Thurs 5 August 4pm – 5.30pm Presenters Emma Priest, barrister; Lucy Smith, barrister and Jim van Rensburg, registered clinical psychologist Chair Marie Dyhrberg QC, President, ADLS

This will be a practical session on how to be counsel in parole hearings and a refresher for those who have not done them for a while. Attendees will be given a set of sample documents, including legal aid amendments to grant, sample submissions and sample psychological reports.

IN PERSON

LIVE STREAM

Jul 30 2021 Issue 25

adls.org.nz/cpd

A guide to summary judgment and strike out

Webinar 1.5 CPD hrs Tues 10 August 4pm – 5.30pm Presenters Judge Paul Kellar and Blair Keown, partner, Bell Gully

cpd@adls.org.nz

09 303 5278

Providing both judicial insights and those of counsel, this seminar addresses the application process for both summary judgment and strike out, the practical and tactical advantages of each procedure, how best to advance or defend a case, strategic considerations including alternative approaches, best practice and costs.

TACTICS STRATEGY PROCESS

FIND OUT MORE

Personal effectiveness: improve your productivity PRODUCTIVITY PERFORMANCE TOOLS

Workshop 4 CPD hrs Thurs 12 August 9am – 1.15pm Presenter Tony Gardner, managing director, Archetype Leadership + Teams

Reflecting on your goals for this year? Are you performing at your peak? Is there room to improve your work methods? Returning for 2021, this well-received workshop offers a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant.

Limited spaces available.

FIND OUT MORE

When an inspector comes knocking REGULATION LIABILITY SAFETY

In Person | Live Stream 1.5 CPD hrs Tues 17 August 4pm – 5.30pm Presenters Tim Clarke, partner, Bell Gully and David Collins, team leader – Enforcement, Regulatory & Enforcement, Legal Services, Auckland Council

IN PERSON

Clients are exposed to significant liability under resource management and safety legislation for environmental and safety incidents. What should you advise a client to do when an incident occurs? Is your client required to notify the regulator and, if so, when?

LIVE STREAM 11

CPD IN BRIEF

Medically assisted dying

In Person | Live Stream 2 CPD hrs Thurs 19 August 2pm – 4.15pm Presenters Grant Illingworth QC; Richard McLeod; Dr Jeanne Snelling and Dr Jane Casey

The End of Life Choice Act 2019 comes into force on 6 November 2021.

Hear from our panel of lawyers, academics and a psychogeriatrician who will unpack the Act and the corresponding process, offer insights into its implementation, consider capacity and other clinical challenges, and outline some of the uncertainties, red flags and thorny issues.

Chair Professor Kate Diesfeld, Professor of Law, AUT and Chair, AUT Ethics Committee IN PERSON

Class and funded litigation

Seminar & Live Stream 1.5 CPD hrs Tues 24 August 4pm – 6.15pm Presenters Paul Collins; Philip Skelton QC; Angela Parlane and Jonathan Woodhams

Knowing your professional obligations The rapid growth in class and funded litigation has exposed issues and challenges not encountered in regular litigation and where the Conduct and Client Care Rules do not always fit neatly. This seminar is intended to help lawyers navigate this difficult and potentially perilous field.

IN PERSON

Preventing employee burnout

Webinar 1.5 CPD hrs Thurs 26 August 12pm – 1.30pm Presenters Katie Gray, executive coach, lawyer and founder of Principals of Practice and Carmel Byrne, partner, Stepshift

LIVE STREAM

LIVE STREAM

Providing high-quality advice while meeting client demands on cost and timeframe are difficult for lawyers, especially when you add a global pandemic into the mix. In this webinar, the presenters will share recent research and findings on the causes of employee burnout (including remote working burnout experienced as a result of Covid-19) and ways legal leaders can mitigate this risk.

FIND OUT MORE

Crossexamination workshop

Workshop 4 CPD hrs Sat 28 August 9am – 1.15pm Facilitators Marie Dyhrberg QC, Paul Dacre QC, Paul Borich QC, Rachael Reed QC, Julie-Anne Kincade QC, Ish Jayanandan, Panama Le’Au’Anae and Aieyah Shendi

Cross-examination can make or break your case. In this learn-by-doing workshop, you will test your cross-examination skills and get individualised feedback from experienced practitioners and members of the judiciary. This is an opportunity to boost your confidence by testing and refining your practical skills and receiving feedback direct from the ultimate decision maker – the judge.

Moderators Judge Peter Winter, Judge David Sharp and Judge Richard Earwaker FIND OUT MORE

Cyber Security: A Guide for Law Firms Tuesday 14 September | In Person & Live Stream | 1.5 CPD hours Presenters: Lloyd Gallagher | Arran Hunt | Edwin Lim | Campbell McKenzie Visit adls.org.nz for more information.

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Jul 30 2021 Issue 25

Events Featured events

Connecting New Zealand Lawyers

Ponsonby lawyers’ lunch Wednesday 11 August 2021, 12:30pm – 2pm Pane e Vino, 1 Williamson Avenue, Grey Lynn, Auckland Sponsored by MAS

Upcoming August

Wednesday 4 | Hamilton sundowner Wednesday 11 | Ponsonby lawyers’ lunch, Auckland Thursday 19 | Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Wednesday 25 | ADLS Newly Suited meet the QCs evening, Auckland

Learn More

Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Thursday 19 August 2021, 7.15am – 8.30am The George, 50 Park Terrace, Christchurch

September

Wednesday 1 | Rotorua lawyers’ lunch Wednesday 8 | Albany lawyers’ lunch, Auckland Thursday 16 | ADLS annual breakfast with the Attorney-General, Auckland Wednesday 29 | New Plymouth sundowner

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Soon to be added: ADLS annual breakfast with the Attorney-General Thursday 16 September 2021, 7.15am – 8.30am The Northern Club, 19 Princes Street, Auckland

September | Auckland Central lawyers’ lunch October | South Auckland lawyers’ lunch October | Tauranga lawyers’ lunch October | ADLS annual golf tournament November | Hawkes Bay lawyers’ lunch

Learn More

New Plymouth sundowner Wednesday 29 September 2021, 5:30pm – 7:30pm The Pepper Room, Millennium Hotel New Plymouth Waterfront, 1 Egmont Street, New Plymouth Catering sponsored by MAS

Book Here

Learn More

events@adls.org.nz

adls.org.nz

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Continued from page 07

and environmental conditions.

Making your business more sustainable, according to MBIE, is about looking at what you do, what you’re buying and how you’re using and disposing of things. It’s also about moving to eco-friendly, local, organic or low-emissions alternatives.

By being sustainable, you will attract more customers, reduce costs and reduce risks, says Fisher. For example, professional services clients often prefer dealing with businesses that are socially and environmentally responsible.

Sustainability makes good business sense on the cost front. According to the Sustainable Business Network, for example, an energy-efficient office space reduces energy bills by about 20%. The network has a toolkit for law firms that want to take action. Easy wins include energy savings, cutting travel, and buying better.

Sustainability also reduces business risks. Customers may distrust businesses that aren’t environmentally friendly. It can damage your reputation with customers, investors and the wider public.

The Colmar Brunton Better Futures report in 2018 found that 90% of respondents agreed with the statement: “If I heard about a company being irresponsible or unethical, I’d stop buying its products or using its services.”

Formal strategy When Minters formalised its strategy, it was already well on the way to implementing many of the actions.

For example, says Kavanagh, when he was chairman of the firm, he had implemented the 40:40:20 ratio, which refers to 40% men, 40% women and 20% of any gender. Another initiative is to grow Māori and Pacific leaders. The firm

joined the TupuToa program, which creates a pathway into a professional career for those who may not have connections.

Pro bono work is an important part of the firm’s sustainability track, especially on projects that address poverty and gender equality.

Another key focus is the Chancery Lane Project (TCLP).

TCLP is a bid by lawyers around the world to develop contractual clauses to help fight climate change. It’s an open-source data bank of climate-friendly causes and can be inserted into everyday contracts. An example might be a clause in a commercial property contract that doesn’t require the tenant to remove electric car charging points at the end of the tenancy, says Kavanagh. The project is one of the many examples of the law profession reconsidering its moral position and the social implications of its activity.

A big step for Minters was to move to the five-star Greenstar rated Commercial Bay building in Auckland which was designed to minimise environmental impacts in its ongoing operations. Chapman Tripp has also moved to the same building. Scorgie, like Kavanagh, notes the building’s many sustainable features, which include heat recovery systems, efficient lighting and waste minimisation measures.

Law firms such as Minters and Chapman Trip are also cutting their air travel. And Minters’ staff are free to work from home, reducing the number in the office by about 15% on any given work day.

It’s not just the big law firms that are on the sustainability track. Many small firms have the ability to be more flexible and innovative than the larger ones, says Fisher. Big businesses always get a bit fat and are very good at perpetuating the machine, he says.

The last word goes to Kavanagh who says no-one can claim to be perfect. “The question is, are you making progress and are you working hard?” ■ Webinar registration available soon, click here.

NEW BOOK

Waking the Taniwha: Māori Governance in the 21st Century General editors Robert Joseph and Richard Benton Waking the Taniwha: Māori Governance in the 21st Century is a comprehensive analysis of the manifestations, complexities and challenges arising from the development of Māori governance structures in a post-Treaty of Waitangi settlement period, bringing together the many elements that feed into the governance of Māori corporate entities.

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Price $190.00 plus GST* Price for ADLS members $171 plus GST* (* + Postage and packaging) To purchase this book, please visit adls.org.nz/ Bookstore alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.

The Colmar Brunton Better Futures report in 2018 found that 90% of respondents agreed with the statement: ‘If I heard about a company being irresponsible or unethical, I’d stop buying its products or using its services.’

Jul 30 2021 Issue 25

Continued from page 09

business from the premises because of reasons of safety of the public or property or the need to prevent reduce or overcome any hazard, harm or loss that may be associated with the emergency including: (a) a prohibited or restricted access cordon applying to the premises; or (b) prohibition on the use of the premises pending the completion of structural engineering or other reports and appropriate certifications required by any competent authority that the premises are fit for use; or (c) restriction on occupation of the premises by any competent authority, then a fair proportion of the rent and outgoings shall cease to be payable for the period commencing on the date when the tenant became unable to gain access to the premises to fully conduct the tenant’s business from the premises until the inability ceases.”

For renters who could not rely on a ‘no access’ clause, some landlords showed no empathy, were greedy and charged full rental during the lockdown period, although the tenant could not access the premises and had zero turnover.

Other landlords decided to charge 50% or 25%. The best and most popular landlords were those who charged zero during the lockdown period and those landlords often offered an extra month rent-free for tenants. Those acts of kindness will not be forgotten and franchisors that lease franchised premises to franchisees are more likely to retain good franchisees at the time of renewal.

Franchise agreements All franchise agreements in New Zealand should contain a robust force majeure clause. I would go so far to say that if any franchise agreement does not contain one, then the drafter of the document may be negligent. The type of force majeure clause I invariably include in my franchise

agreements states: Neither party shall be liable to the other and neither party shall be deemed to be in default for any failure or delay to observe or perform any of the terms and conditions applicable to the party under this Agreement (other than the payment of money) caused or arising out of any act beyond the control of that party including (but not limited to) fire, flood, lightning, storm and tempest, earthquake, strikes, lock-outs or other industrial disputes, acts of war, acts of terrorism, riots, civil commotion, explosion, malicious damage, government restriction, unavailability of equipment or product, disease and/or virus of epidemic or pandemic proportions or other causes whether the kind enumerated above or otherwise which are beyond the control of that party and where such failure or delay is caused by one of the events above then all times provided for in this Agreement shall be extended for a period commensurate with the period of the delay.

Applying the doctrine of frustration to contractual disputes arising from the impact of Covid-19 acts is untested

The purpose of this clause is to ensure neither party will be liable to the other for any events outside their control.

Common events are listed in the clause, such as fire, flood, lightning, storm and tempest and, of particular relevance to current events, the phrase ‘disease and/or virus of epidemic or pandemic proportions’.

No one can predict the future and all parties, especially a franchisor and a franchisee, should be afforded the protection of a well-drafted force majeure clause.

Covid-19 is merely a symptom of the greater problem of unexpected or unanticipated events, be they in the form of the next pandemic or some other future disaster. Uncertainty will always pose a risk to interference with contractual relations, and a well-drafted force majeure clause is a necessary component of mitigating contractual risk.

Stewart Germann is the principal of Stewart Germann Law Office at Auckland ■ ADLS On Demand seminar available, click here.

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

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ĀKARANA CHAMBERS | HIGH STREET

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

LawNEWS: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

Fax: (09) 309 3726

An additional member is sought to join several experienced barristers and junior barristers in our refurbished, light-filled, contemporary, collegial High Street chambers. On offer is a medium-size office at a highly competitive rate that would suit a range of barristers including a junior barrister.

The modern office amenities include a large meeting room with harbour views, kitchenette, adjacent car-parking building and availability for secretarial and junior barrister support.

Terms negotiable include monthly tenancy.

Please contact: Alex McDonald | alex@amcdonald.co.nz Stuart Ryan | stuart@stuartryan.co.nz www.akaranachambers.co.nz

(09) 303 5270

Transition Opportunity in Whanganui HAINES Susan Marian

WATSON Samuel Charles

An unexpected family health issue has made me bring forward my planning towards handing over my small but well-established law firm to a new owner.

The firm handles a wide range of work with a specialty in immigration.

• Late of 5a Glamorgan Drive, Torbay, Auckland • De facto • Retired • Aged 74 / Died 24’04’21

• Late of 1263 Piakonui Road, Richmond Down, Walton • Single • Aged 37 / Died between 03’12’20 and 04’12’20

This creates the opportunity for a lawyer already qualified or close to being qualified to practise on their own account to step into an existing business with an existing client base.

Send expressions of interest in confidence to my direct email: Peter@robinsonassociates.nz

ph: 027 294 3123

Chancery Chambers office for rent Three office spaces are available in the heritage Chancery Chambers building on the corner of Chancery and O’Connell Streets.

12.27sqm net located on the fifth floor, internal facing.

■

21.16sqm net located on the fifth floor, consisting of two smaller adjoining offices, internal facing.

■

33.71sqm net located on the third floor of the O’Connell 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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In the winter of 1921...

Sir Vincent Meredith was Crown Solicitor for Auckland and busy establishing what is now known as Meredith Connell.

on friday 13 august 2021...

Meredith Connell will celebrate the firm’s first 100 years.

MC’s 100th Anniversary Pō Whakanui is a thank you to our team and alumni for making us who we are today.

It will be held at Tāmaki Paenga Hira, Auckland War Memorial Museum, from 7pm.

If you are MC alumni and wish to attend, please RSVP to sarah.lawrence@mc.co.nz

by Friday 30 July.

Numbers are limited.

Ma pango, mA whero ka oti ai te mahi.

Jul 30 2021 Issue 25

Become an ADLS Member Membership offers a range of benefits, including: ■ ■ ■ ■ ■ ■

LawNews and the ADLS Monday e-Bulletin Collegiality events available at special member rates A variety of CPD activities all at special member rates Eligibility to apply for ADLS Committees Enhanced Airpoints Dollars™ earn rate on eligible ADLS purchases Member pricing on textbooks and related products at the ADLS Bookstore, and more

adls.org.nz/join

membership@adls.org.nz

09 303 5270

Legal Ethics and Client Care: A Practical Guide Wednesday 8 September | 4.00pm - 5.30pm Refresh your understanding of your duties and responsibilities when it comes to client relationships, and how best to manage issues when they arise.

This session will be particularly useful for practitioners at the junior or intermediate level of experience, but will also provide a helpful refresher for more senior practitioners.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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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

The ADLS Bookstore couriers nationwide.

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

Expert Evidence on Memory: When to Use It and Why Tuesday 7 September | 5.00pm - 7.15pm A case can turn on memory – so having an understanding of how it works, the science available, and when to engage an expert, are vital. This seminar will help you develop your understanding of this complex and key area so you’re better informed and thus better placed to make decisions for you and your client.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd