LawNews - Issue 26

NEWS Aug 6, 2021 Issue 26

Inside ■ EMPLOYMENT/ CONSTITUTIONAL LAW

Marathon man: Professor Bill Hodge P03-05

■ COMPETITION/ REGULATION

How to fix our grocery duopoly P06-07

Two hundred marathons

adls.org.nz

AND STILL COUNTING

Contents 03-05 EMPLOYMENT CONSTITUTION ACADEMIA

Fifty years in Godzone: Professor Bill Hodge reflects

06-07 SUPPLIERS CONSUMERS TRUST-BUSTING

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

Ending the supermarket duopoly

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

09 ARBITRATION DISPUTES PARIS

Barrister Anna Kirk joins a prestigious international court

06-07

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10-11 EVENTS

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12-13 FEATURED CPD

Photo: Peter Dazeley / Getty Images

13 CPD IN BRIEF

Two supermarket chains control NZ’s $22 billion grocery industry

02

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Aug 6 2021 Issue 26

Westminster-style constitutional monarchy before lecturing flawlessly, confidently and entertainingly to us on the following day.”

Armed with degrees from Harvard and Stanford, and with four years’ service in the US army behind him, Hodge was practising labour law in California when a call came from Professor Jack Northey, then Dean of Auckland Law School, offering him a job. Better still, some removal costs were also thrown in. Hodge thought it would be a two-year stint in the Pacific but a passion for long-distance running and the great outdoors – and meeting Sue, a young law student who was to become his wife - put paid to that.

Early on, he took up running and in 1975, three years after arriving in New Zealand, Hodge did his first marathon. He now has nearly 200 under his belt and, as he heads towards the age of 80, reckons he has a couple more still in him. In 2002 he was part of a 12-person relay team that ran 3,400 miles Sue Hodge, Professor Bill Hodge and Graeme Colgan across the United States, from Oregon to Boston. Covering between 110 and 130 miles a day, the team took just over a month to reach its destination.

EMPLOYMENT/CONSTITUTIONAL LAW Instrumental in getting Hodge to New Zealand was former Chief Justice Dame Sian Elias, who’d met him at Stanford where she and her husband Hugh Fletcher were doing post-graduate study. Northey, it transpired, had asked her to look out for potential recruits for his law faculty and Hodge appeared to be a good fit.

Dame Sian was unable to attend last week’s dinner. But she allowed Colgan to read out an email sending her regrets and saying she was particularly sad not to be present. She had been there at the beginning of Hodge’s New Zealand The controls were so Jenni McManus adventure “and because I have great admiration for the tight that I had to go enormous contribution you have made over the decades According to Graeme Colgan, who was designated to give since to New Zealand law and society”, she said. the formal introduction at Professor Bill Hodge’s retirement through the BNZ and dinner hosted by ADLS in Auckland last “I do hope that retirement from the law school is not going to remove your the Reserve Bank to week, no fewer than seven High Court Hodge now commentaries on legal matters. They have two Employment Court judges and get permission to get judges, been really valuable, demystifying law has nearly 200 three from the District Court, along with 15 QCs, were among those who showed up to foreign currency to marathons under and promoting public understanding and commitment to it. I worry very much about celebrate and honour Hodge’s contribution his belt and, as he the vulnerability of the rule of law if it is get a subscription to to the law. heads towards seen as being the preserve of the initiates And many, if not most, were likely to be Time magazine only. The bridges you have provided have former students of Hodge, whose classes the age of 80, been critical to public understanding of a in employment and constitutional law have reckons he has a huge range of issues.” become the stuff of legend during his 50couple more still year tenure at the University of Auckland’s Accidental lawyer law school. in him Colgan, a former Chief Judge of the Hodge came to the law almost by Employment Court, was among those accident. Towards the end of his military who signed up at the start of 1972 for Hodge’s first class: service, his commanding officer asked him to serve on constitutional law. several courts martial for a few months. This changed As a lecturer, the newly-arrived American was “young, everything. Hodge told his colonel he wanted to quit the fresh-faced, enthusiastic and foreign,” Colgan says. “He army and study law and four years later he graduated from described himself in legal terms as an alien. And he was very engaging. He was also pedalling very hard in the evenings Continued on page 04 and the weekends to get up to speed with the law of a

Professor Bill Hodge: 50 years in Godzone

03

Continued from page 03

Stanford with a doctorate in jurisprudence.

Hartley’s classic novel The Go-Between: “The past is a Colgan says he recently tried to track down some of his foreign country; they do things differently there.” And Hodge fellow students from that class of ’72. But did return to this idea towards the end this was no easy task. “It says something of of his address. But along the way there In my view, the our changing times that when I requested were stories and anecdotes, advice, lots of Employment of the law school recently a class list for laughter and even 1970s music before he Contracts Act that 1972 constitutional law class, this was tied everything together and circled back 1991 was not a refused on the grounds of privacy – 49 to his original theme. years later! But in those less privacyThe big question of the night was new departure. conscious days, the local newspapers whether New Zealand in 1972 was indeed It was simply in 1972 published the lists of passing a foreign country compared with 50 years building on the students in each class.” later. “And the answer is going to be twoIncluded in that 1972 list was Alan handed: on one hand, yes, on the other changes of 1984 Beaven – the New Zealand environmental hand, no,” Hodge said. to 1987 lawyer killed in the 9/11 terrorist attacks He noted that in 1972 milk cost 4c and in 2001 when his plane, seized by the came in a glass bottle with a foil top. The hijackers, crashed in a Pennsylvania field.

Auckland Star cost 6c and was sold from Other classmates included R S Chambers, subsequently honesty boxes, 501 was a brand of Levi Strauss jeans rather Supreme Court judge Sir Robert Chambers, who died in than a movement of New Zealanders across the Pacific and 2013; Justice Paul Davison; Judge Denese Henare; Judge Ian Amazon was a river in South America. A standing joke among McHardy; Justice Dame Lowell Goddard; NZ First leader and the legal profession was that the Chief Justice was Wild, and former Deputy Prime Minister Winston Raymond Peters and the Solicitor-General was Savage.

Colin Woodroffe.

Magistrates sat in the lower court and indictable crimes From overseas there were Patu Falefatu Sapolu, who were heard by the Supreme Court. Appeals went from the became Chief Justice of Samoa, Misa Telefoni Retzlaff, a Magistrates Court to the Supreme Court and appeals from former Samoan Deputy Prime Minister and Samoan Works the Supreme Court went the Court of Appeal, not the other Minister Luagalau Levaula Kamu who was assassinated in way around. Appeals from the Court of Appeal – “and this 1999. Sapolu, while serving as Chief Justice, was also the was just bizarre, just mysterious to me”– went to something target of a failed assassination plot in 2010. called the Judicial Committee of the Privy Council in London, “There were later ironies affecting two of those former Hodge said. students,” Colgan said, including Peters’ role in changing As someone whose middle name is Cromwell – his family the constitutional face of governments in New Zealand is descended from the 17th century English revolutionary and Lowell Goddard, who in the early 1990s presided over Oliver Cromwell – Hodge said he found it difficult to a High Court case where Hodge was a plaintiff, seeking understand why the Queen of England was the ultimate unsuccessfully to establish that Employment Tribunal repository for justice and the Privy Council the court of last member had judicial tenure of office. resort for New Zealanders.

“As an associate professor, Bill didn’t confine himself to He recalls getting a hard time when expressing these teaching and academic writing,” Colgan said. “He operated views to a journalist at the Listener who was inquiring about both as a mediator in the employment and weather-tight his thoughts on New Zealand becoming a republic. home fields and more latterly he has undertaken workplace “I said New Zealand’s head of state was a ‘nice German investigations, including in the education sector.” lady who lives in London’. Boy, did I get a lot of hostile He was eagerly sought by the news media for comment feedback for that.” on a wide range of legal matters and appeared to be “a very Central control willing interviewee”.

In 1972, Hodge said, the dominant characteristic of New A foreign country Zealand was central control, ownership and regulation in Wellington. The government owned the airlines, the steel After dinner, when his turn came to take the lectern last mill, the railways, a pulp and paper mill and the telephone week, Hodge demonstrated one particular trait said by system through the Post Office. “The controls were so tight Colgan to characterise many of his classes – a tendency to wander off-topic but always returning eventually to the main theme.

Continued on page 05 His theme for the dinner came from the first line of LP 04

You have a fundamental cultural and instinctive concern for fairness, for justice, for the rule of law and rulesbased decisionmaking

Aug 6 2021 Issue 26

Law school

Winston Peters and Professor Bill Hodge

Continued from page 04

I said New Zealand’s head of state was a ‘nice German lady who lives in London’.

Boy, did I get a lot of hostile feedback for that

that I had to go through the BNZ and the Reserve Bank to get permission to get foreign currency to get a subscription to Time magazine.

“The people who had means could go off to a place called Fiji and the characteristic of Fiji was not Sevens rugby – it was duty free shopping. If you have a closed economy, those little escape valves like duty free shopping can be important.”

In terms of the macro economy, a central piece of legislation was the Economic Stabilisation Act 1948 – a wartime Act designed to deal with crippling inflation but used in the 1970s by Prime Minister Rob Muldoon and his Cabinet as a control mechanism by issuing regulations through the powers of the Governor-General.

“That led to the so-called wage freeze of 1982-84, known as the Wage Adjustment Regulations, all issued under the Economic Stabilisation Act.” Then came the Lange government and Rogernomics.

Labour, swept into power in July 1984, revoked the wage freeze regulations, repealed the Economic Stabilisation Act and, importantly, did away with central arbitration. That was a turning point, Hodge says – “the pivot from the old to the new.”

“They did away with the Arbitration Court being able to settle disputes of interest unless both parties agreed. I think there were two such cases but otherwise employers never agreed to let unsolved disputes of interest go to the court.

“To me, it was that moment in 1984 that meant the Employment Contracts Act could cement in those changes and the end of the old and the beginning of the new. So, in my view, the Employment Contracts Act 1991 was not a new departure. It was simply building on the changes of 1984 to 1987.”

Turning to the University of Auckland’s law school, where he has worked for the past 50 years, Hodge says the faculty of today is every bit as good as the ‘giants’ of the law who were his colleagues in the 1970s.

“In my view, the law school is in very good heart and its capacity and intellectual levels are at least equal to what it was in those great days in the 1970s.”

He recalls a young student called Winston Peters and an essay he wrote on the Treaty of Waitangi which, Hodge says, was one of the best he had ever read. “It changed my mind completely about the Treaty of Waitangi. That essay is still reverberating in my mind.”

Another “brilliant” piece of work was by Graeme Colgan who wrote a dissertation on police powers of search in custody. “It was so good that the government said, ‘my God, we’ve got to amend the Police Act’ because Graeme had successfully pointed out that their power to search and take away property was totally without legal foundation.”

Another highlight was getting to know Peter Mahon, the former High Court judge who headed the royal commission of inquiry into the Erebus disaster, then resigned from the bench after filing his controversy report. Northey then found him a place at the law school. Hodge says it was a great honour being invited to be a pallbearer when Mahon died in 1986.

Hodge also acknowledged the assassination of his former student Luagalau Levaula Kamu, and the death of Alan Beaven in the 9/11 terror attack.

Some months after 9/11, Hodge was in the US, running his 3,400-mile cross-country relay. He and some others were returning a van to Oregon when he decided they should take a detour into rural Pennsylvania.

“We eventually found the paddock where the plane had come down. The field was still black and there was a black scar and a wire fence separating the end of the road from the field. The most prominent thing on that fence was a huge horseshoe-shaped wreath, with a picture of Alan Beaven in the centre, from the Old Boys of Westlake Boys’ High School in Takapuna. Right in the middle of nowhere. It was really quite overwhelming at the time.”

On a lighter note, he recalls one of his first television interviews when he had to travel to Wellington because the studio in Shortland St couldn’t transmit. The program was Gallery and the interviewer was current affairs journalist David Exel. The topic was the possible impeachment of President Nixon.

“I think I said [impeaching Nixon] would be something of a catharsis for the body politic – a purge, like a bowel movement. The other person being interviewed was [Society

Continued on page 08 05

COMPETITION/REGULATION

How the govt might

deal to the supermarket duopoly

Persistently high profits are earned by the major grocery retailers, while the prices for groceries in New Zealand are higher than those overseas and New Zealanders face some of the highest grocery spend per capita statistics in the OECD

Gary Hughes

Old-fashioned trust-

The emerald isle of Ireland has a team of just under busting in the US sense five million, like New Zealand. Consumers there have a set of five main supermarkets to choose from, with the would be dramatic but is largest having 22% market share. the least likely outcome New Zealand has just two (and a lot fewer pubs).

The ASX-listed Woolworths and the Foodstuffs cooperative chains combine to take more than 90% share of households’ main weekly shop, in what is a Commerce Act) to conduct a deep dive into whether $22 billion industry. there are factors that may prevent competition The Commerce Commission (CC) from working well in particular has spent nine months exploring markets. The CC can use its statutory why this is, how it came about, what information demand powers to study detriments it brings to competition and, and gain insights into market structure, most importantly, what might be done profitability levels and supply chain about it. arrangements. This is broader than a The draft report into the retail confined enforcement investigation. grocery sector is the CC’s second large David Clark, the Minister of market-specific competition study. It Commerce & Consumer Affairs, confirms what competition lawyers requested this year-long competition Gary Hughes long knew: that duopolies tend towards study under s 51 of the Act in November bad economic outcomes, with a competitive détente 2020, asking the CC to focus on these (nonor game of anticipated stalemate moves often exhaustive) matters: developing. Having only a few fringe or specialist ■ the structure of the grocery industry at the competitors, such as in the grocery trade, is not wholesale and retail levels; enough to lead to effective and workably competitive ■ the nature of competition at the wholesale and outcomes for consumers. retail levels of the grocery industry; ■ the pricing practices of the major grocery retailers; Jurisdiction and process ■ the grocery procurement practices of the major grocery retailers; and Traditionally, the CC has been an enforcement body, taking action to enforce compliance based upon ■ the price, quality, product range and service complaints or its own monitoring actions. It enforces offerings for retail customers.

Commerce Act provisions against anti-competitive After initial consultation on scoping and preliminary behaviour or acquisitions, the Fair Trading Act and issues, the CC has issued an explosive draft report. consumer laws, and a growing number of legislativePreliminary findings specific regulatory price controls.

In 2018 it was given new powers (part 3A of the Presenting the report to media on 29 July, CC Chair 06

Anna Rawlings emphasised that competition in the retail grocery sector is not working well for consumers or, for that matter, for suppliers to Woolworths NZ and Foodstuffs.

That is predominantly because the structure of the market over time has come to be a duopoly and a diverse fringe of other grocery retailers have only a limited impact on competition. They are unable to compete with the two main retailers on price and product range in order to satisfy the demand from most New Zealanders who still prefer to buy groceries during a main shop in one location. For around 90% of us, that location will be one of the triple branded store chains owned by the duopolists.

The CC observed evidence that there are persistently high profits earned by the major grocery retailers, while the prices for groceries in New Zealand are higher than those overseas and New Zealanders face some of the highest grocery spend per capita statistics in the OECD. Additionally, supermarket innovation levels are modest. The high profits do not appear to represent rewards to invest in innovation. Further, it is not clear that aggressive leveraging of buyer power against small suppliers (against mortal fear of their products becoming ‘de-listed’) is being passed through to consumers.

Out of OECD countries, New Zealand ranked sixth highest in terms of grocery prices, as well as fourth and fifth highest in terms of grocery expenditures in the OECD and ICP datasets respectively.

Economists’ models suggest that in a duopoly each provider can coordinate their behaviour (without direct collusion) to sustain higher prices and profitability at higher levels than are attainable in a

Continued on page 07

Aug 6 2021

Photo: fatido / Getty Images

Issue 26

Continued from page 06

competitive market, to the detriment of consumers and efficiency. The CC describes this in terms of rivals ‘accommodating each other’s behaviour’, resulting in little need to compete on price, especially with each having multi-supermarket brands in differentiated spaces.

More options Entry into New Zealand’s grocery market is challenging. There have been no new large-scale retailers since The Warehouse Group’s attempt in 2006 to develop a ‘Warehouse Extra’ chain of supermarkets.

At that time, the duopolists each took a blocking stake of 10% in listed Warehouse shares. They then applied to the CC for clearance under s 47 of the Act to move to a full takeover. The CC refused. But a High Court appeal overturned that, finding the Warehouse Extra concept faced many challenges and was likely to fail. So it could not represent effective competition to the big two.

The Court of Appeal reversed that decision ([2008] NZCA 276), agreeing that if the CC could not have sufficient evidential certainty that a three-into-two merger would not substantially lessen competition, it was entitled to refuse to grant clearance. After that, the minority owners sat on their 10% each and within two years The Warehouse Group discontinued it.

Chapter six of the draft report is one of the most crucial, getting to the heart of difficulties for new players entering or fringe players expanding.

There is a lack of suitable large-format sites for new stores and the wholesale levels of the market are largely controlled by the big two: even smaller

In a duopoly, each provider can coordinate their behaviour without direct collusion to sustain higher prices and profitability at higher levels than are attainable in a competitive market retailers like dairies said they resupplied from existing supermarkets. These factors mean that under current market conditions only small-scale entry is viable, which has a limited impact: It is unlikely that any new grocery retailer with a similar retail offer to the major grocery retailers will, under current market circumstances, enter at the scale required for effective competition for consumers’ main shop.

Large US wholesaler/subscription Costco is due to open a store in 2022, to some extent improving choice for consumers in Auckland. But the CC thinks market conditions will not significantly improve for consumers as a whole, with Costco targeting only niche consumer groups. Notably, international giant Aldi is growing in Australia but, despite having registered New Zealand trademarks years ago, has shown no signs of entering the market.

The CC understands large-scale entry may be unlikely due to factors like the small size of the New Zealand economy and a population profile which restricts the number of centres where a supermarket can be profitably operated. But land-banking by the big two, along with restrictive covenants and use of

property law restraints, plays a big part: The availability of land for new entrants and existing firms is reduced by difficulties in getting planning permission to develop potential sites and conduct by the major grocery retailers relating to property, including how they use restrictive covenants on land and exclusivity covenants in leases to prevent other supermarkets operating.

Recommendations The CC provided a range of options to improve competition. The media is excited by the prospect of a forced divestment or break-up of big players, similar to the Telecom/Chorus structural separation legislation of 2006. Old-fashioned trust-busting in the US sense (of dismantling big steel and oil trust companies, by which competition law there became known as ‘anti-trust’) would be dramatic but is the least likely outcome.

A more realistic set of steps could improve the conditions for entry and expansion by rival retailers by trying to crack open access to wholesale-level groceries, or make more large sites available for retailing. The CC says: We consider that the best options for improving competition are likely to be those that enable an increase in the number of firms competing in the retail grocery market. In the long term, threatened and actual entry or expansion is likely to be the greatest driver of competition in grocery markets.

The first way this could occur is through measures to improve the conditions for entry by new grocery retailers and expansion by existing retailers. These include measures to improve

Continued on page 15 07

Continued from page 07

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for the Protection of Community Standards founder] Patricia Bartlett and she was absolutely outraged that a silly, jumped-up American academic could refer to President Nixon in that way.”

Another highlight was working with “a great lawyer called Paul Temm”. Hodge recalls Temm, in 1979, walking into every bank on Queen St until he found a cheque that had been processed from the Cook Islands Philatelic Bureau [which] was really a slush fund for Cook Islands premier, Albert Henry. This led to a bribery and corruption investigation, the removal of Henry’s knighthood and the reversal of an election result – the only case in the commonwealth where an electoral challenged reversed the outcome and changed the leadership of the government.

Another professional highlight, Hodge said, was “the purple book” – Brookers’ online volumes on employment law, co- authored by Phillipa Muir and Kit Toogood QC.

Why retire?

“It got a bit fatiguing to see students’ blank faces when I mentioned things like Prime Minister Muldoon or the Arbitration Court or awards,” Hodge says. “But here’s the real reason: for a long time (30 years now) a student might come up to me after the first or second day of class and say, ‘mum says to say hi’. That’s fine.

I usually would remember them… but two years ago, somebody came up to me after class and said, ‘nana says to say hello’. That was enough. I think it’s time to move on.”

So, returning to Hodge’s theme, is New Zealand a different country now?

“You can’t go out and get a bottle of milk with a silver foil top for 4c. Or a newspaper for 6c. But, if you look at an old state house coming up for auction in Orakei or Parnell, the agent might say something like this: ‘it might need a lick of paint, but it’s got good bones’. I think it means a good structure, a good foundation, but in New Zealand it is really the people.

“It’s the people in this room, some of whom have gone to Parliament, some of whom are sitting on the bench, or process the needs to clients, sit in academia – you are the good bones of this country.

“You have a fundamental cultural and instinctive concern for fairness, for justice, for the rule of law and rules-based decision-making. And for these 50 years it has been my privilege to be a minor part of those good bones. Thank you for allowing me to be a minor part of that search for justice. I wouldn’t change a thing and I did get lucky.” ■ See aso pages 10 and 11 for more photos ■

• Better – to continually strive to reach the highest standard and go beyond what is required • Expertise – to constantly challenge your understanding and deepen your knowledge • Straightforward – be clear, accurate and direct in ensuring the right course of action is taken If you wish to apply for this position, please email paul.sullivan@mcelroys.co.nz

Inspiring excellence in the classroom

Applications should include a covering letter detailing relevant experience, CV and academic transcripts.

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08

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Aug 6 2021 Issue 26

DISPUTE RESOLUTION

Barrister appointed to international court Hong Kong and Singapore are now key centres for arbitration and New Zealand is looking more and more to these jurisdictions for guidance Rod Vaughan

Cambridge for her doctorate.

“My thesis was on the accountability of multinational corporations for human rights abuses. My supervisor was highly respected international lawyer, Sir Daniel Bethlehem, who now regularly sits as an international arbitrator.”

the ability to deal with large volumes of information efficiently.

“I bring all of these skills from my 15 years’ experience working in international arbitration, but all members will and should have these skills!”

Kirk also believes her appointment reflects the growing importance of international arbitration in the Asia Pacific region. “Hong Kong and Singapore are now key centres for arbitration and New Zealand is looking more and more to these jurisdictions for guidance.

“New Zealand has the potential to play a key role in developing arbitration in the Pacific as part of the more general regional development of international arbitration.”

Highly respected Auckland barrister Dr Anna Kirk has been appointed as New Zealand’s member on the Paris-based ICC International Court of Arbitration for International outlook a three-year term.

Kirk is the first female member to be appointed She says New Zealand has a lot to the court and one of the few Kiwis to take up the to offer the ICC. “New Zealanders Diverse court position while living and working in New Zealand. generally do very well in international Dr Anna Kirk The International Chamber of Commerce (ICC) is arbitration and we have many working in Kirk says the current ICC Court is the the world’s leading international arbitration institution prominent positions overseas and many most gender and geographically diverse and the court is a collection of representatives from young New Zealand lawyers taking up positions in court to date.

121 countries. international arbitration teams around the world.

“It was traditionally male-dominated and quite Kirk, a barrister at Bankside Chambers, was euro-centric, but there has been a big push to change “We have well-trained lawyers, often with an introduced to international arbitration while working that and the first female President of the ICC, Claudia international outlook. We work hard and as a country at Herbert Smith, a leading London law firm, after Salomon of the US, has just taken office. Arbitral we are perceived as neutral, transparent, non-corrupt completing her PhD in International Law at Cambridge institutions like the ICC have been making big strides and safe. Our biggest challenge remains geographical University. in increasing diversity in the arbitrators they appoint distance, but this is lessening as the pandemic has She returned to New Zealand but most arbitrators are appointed brought a sharper focus on the use of technology in in 2011 to work with Sir David by the parties to the dispute on place of travel.”

At university Williams QC who is regarded as the advice of their lawyers rather ICC cases are generally confidential but are likely to I gravitated to this country’s foremost arbitration than the institutions. be cross-border commercial disputes. practitioner.

“Party appointments in Sectors that commonly use arbitration include international law Williams says Kirk’s international arbitration remain construction (large infrastructure projects), mining subjects, especially appointment to the ICC is overwhelmingly white and male and natural resources, oil and gas, shipping and human rights, and “justly deserved and is further with a few notable exceptions telecommunications, Kirk says. recognition of New Zealand’s litigation and this is one of the reasons that “There are also generally a lot of disputes arising developing expertise in diversity on the ICC Court is so out of joint venture agreements, sale and purchase international arbitration”. important.” agreements, distribution/franchise agreements and At Bankside and Herbert Smith, she has been Kirk says that she and arbitrator Royden Hindle are mergers and acquisition transactions that have gone involved in many ICC arbitrations whether as counsel, about to launch a survey that is expected to shed light wrong.” arbitrator or tribunal assistant. She also sits regularly in on the state of arbitration in New Zealand, including She’s currently assisting Williams in an ICC case domestic arbitrations and construction adjudications. diversity amongst arbitrators. involving a state-to-state dispute in the oil sector, Kirk says she grew up with a strong sense of social She believes that having practised both overseas worth more than US$30 billion. “Most arbitrations are justice which led her into law. “At university I gravitated and in New Zealand she is well-placed to bring a much smaller but are routinely worth tens or hundreds to international law subjects, especially human rights, unique perspective to the ICC Court. of millions of dollars.” and litigation.”

“At a more general level, the skills required by all Other New Zealanders who have served on the After graduating, she spent three years at members of the court are honed analytical skills, good court include Sir David Williams, David Kreider and Chapman Tripp in Wellington before heading to knowledge of arbitral practice and procedure and Andrew Tetley. ■ 09

Events Retirement dinner for Dr Bill Hodge On Thursday July 29, friends, judges, colleagues and former students of Dr Bill Hodge gathered at The Northern Club to celebrate his significant contribution to the law, including 50 years as a teacher and Professor of Law at the University of Auckland. Among those present were former students Winston Peters and retired Employment Court Chief Judge Graeme Colgan. It was a popular event, sold out weeks in advance.

Darren Gunasekara, Peter Kiely, Eleanor Robinson and Penny Swarbrick

Christopher Eggleston, William Fussey and Marilyn Morrell

ADLS President Marie Dyhrberg QC and Dr Bill Hodge

Marnie Blank and Lorraine MacDonald

Phillipa Muir and Graeme Colgan

10

Des Wood and Bill Patterson

Aug 6 2021 Issue 26

Featured events

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

Learn More

ADLS Newly Suited Meet the QCs Evening Wednesday 25 August, 5.30pm – 7.30pm Stanbeth House, 28 Customs Street East, Auckland CBD

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

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New Plymouth sundowner Judge Philip Recordon, Justice Kit Toogood, James Farmer QC and Frank Godinet

Wednesday 29 September 2021, 5.30pm – 7.30pm The Pepper Room, Millennium Hotel New Plymouth Waterfront, 1 Egmont Street, New Plymouth Learn More Catering sponsored by MAS

Upcoming August 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

September Associate Professor Scott Optican, Professor Paul Rishworth QC and Paul Collins

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

Soon to be added: September | Auckland Central lawyers’ lunch October | South Auckland lawyers’ lunch October | Tauranga lawyers’ lunch October | ADLS annual golf tournament November | Hawkes Bay lawyers’ lunch

Book Here Gillian Service and Judge Joanna Holden

events@adls.org.nz

adls.org.nz

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FINAL NOTICE

Personal effectiveness: improve your productivity

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

PRODUCTIVITY PERFORMANCE TOOLS

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-oneffort at work. It is facilitated by a leading high-performance consultant.

Limited spaces available.

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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

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?

IN PERSON 12

LIVE STREAM

Aug 6 2021 Issue 26

adls.org.nz/cpd

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

cpd@adls.org.nz

09 303 5278

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.

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How our medically-assisted dying law will work DEATH CAPACITY PROCESS

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 2 CPD hrs Tues 24 August 4pm – 6.15pm Presenters Paul Collins; Philip Skelton QC; Angela Parlane and Jonathan Woodhams

LIVE STREAM

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.

CONDUCT CLIENT RESPONSIBILITY

IN PERSON

LIVE STREAM 13

CPD IN BRIEF

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

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.

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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

Expert evidence on memory

The art of drafting complex wills

In Person | Live Stream 2 CPD hrs Tue 7 September 5pm – 7.15pm Presenters Rob Harrison, barrister, Inangahua Chambers and Dr Rachel Zajac, expert witness and Professor of Psychology, University of Otago | Te Whare Wānanga o Otāgo

Workshop 3.5 CPD hrs Wed 8 September 9am – 12.45pm Facilitators Henry Stokes, General Counsel, Perpetual Guardian and Theresa Donnelly, Legal Services Manager, Perpetual Guardian

A case can turn on memory. So when should you engage an expert? With reference to the Peter Ellis trial and other relevant ‘memory’ cases, an experienced barrister and an experienced expert witness will explain how memory works, the types of issues that can arise in criminal cases and how to use a memory expert.

Chair Judge David Sharp

IN PERSON

What does a good will look like? And how do you know it will do the job?

The acid test comes only after the will-maker has died. This workshop is about drafting wills that are fit for purpose and easy to administer. It includes practical tips on what to look out for in complex wills and how to make them as bullet-proof as possible.

Limited spaces available.

FIND OUT MORE

Legal Ethics and Client Care: A Practical Guide Wednesday 8 September | Seminar & Live Stream | 1.5 CPD hours Visit adls.org.nz for more information.

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LIVE STREAM

Aug 6 2021 Issue 26

Continued from page 07

access to a wide range of wholesale groceries at competitive prices, and measures to make sites for grocery retailing more readily available through possible changes to planning laws and restrictions on the use of restrictive covenants.

There are enforcement investigations the CC could be given along those lines. But other steps towards facilitating or creating entry by major retailers falls to government. Expanding the duopoly to an oligopoly is still imperfect, but better. Legislative changes may affect restrictive covenant laws, allowing direct sponsorship or investment by central/local government or even requiring existing chains to sell some stores in particularly concentrated retailer towns.

There is also a power imbalance between the supermarkets and their suppliers. A mandatory code of conduct for fair treatment of suppliers would seem a no-brainer for Clark. However, changes to allow collective bargaining by suppliers would risk cutting across recently toughened cartel law and CC educational efforts to discourage sellers colluding.

A more realistic set of steps could improve the conditions for entry and expansion by rival retailers by trying to crack open access to wholesalelevel groceries, or make more large sites available for retailing Lastly, measures directed at improving the information provided to consumers (for example, compulsory clear unit pricing) would help us all make informed purchasing decisions.

Next steps These draft findings are preliminary, but powerful, and there is not a lot of time for submissions. This competition study has flown under the radar for much of 2021, with only the main food supplier trade body

lined up against the two supermarket groups. But as publicity and political pressure now become intense, completion of the final report is due in November.

Given how far-reaching the proposed outcomes could be, you may expect a fierce circling of arguments, wagons and expert witnesses by Woolworths and Foodstuffs. It will be in other food sector players’ interests to emerge in numbers for participation in the final stages.

Consumer groups, and other grocery players large and small, will be watching with interest (Walmart, anyone?) to see if better scope for market entry in future will really materialise. Lawyers with food industry clients should note that written submissions on the draft report close 26 August 2021, followed by an in-person conference hearing in Wellington on 21-24 September 2021. ■ Gary Hughes, barrister at Akarana Chambers, specialises in regulatory investigations and proceedings, especially Commerce Commission, FMA, SFO, privacy and AML-CFT cases. Contact him at www.law-strategy.nz or gary@garyhughes.nz ■

Introducing Martelli McKegg’s Expanded Specialist Commercial Property Team

martellimckegg.co.nz

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Cruickshanks Solicitors Privy Council Agents • • • •

• •

Probate and resealing Property (Relationships) Act 1976 agreements Agency litigation Sole representative of overseas office, inter company transfers and work permits generally Property UK and European investment China network connections and representation

10 Bentinck Street, London W1U 2EW Tel: (0044) 020-7487 4468 • Fax: (0044) 020-7487 5466 • Email: john@lawco.co.uk www.cruickshanks.co.uk • www.lawco.co.uk

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.

The perfect candidate will be seeking greater autonomy and have proven experience in a range of legal matters including residential property and commercial transactions, relationship property, trusts and estate planning. The successful applicant will receive a competitive remuneration package.

Enquiries will be treated in strict confidence.

Please contact debra@cslegal.co.nz

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.

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

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33.71sqm net located on the third floor of the O’Connell Street side of building.

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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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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

(09) 303 5270

ALGIE Margaret

• Paper Mill Foreman • Aged 85 / Died 04’06’21

• Late of Sunnynook, Auckland • Aged 69 / Died 21’06’21

REA Lynnette Mary

COBBETT Helen Lauren

• Late of 906 Port Road, Whangamata • Married • Company Director • Aged 73 / Died 07’03’21

• Late of 52 Norton Street, Te Kopuru, Dargaville • Widow through Marriage • Retired • Aged 72 / Died 18’06’21 DENYER Michael Leonard

SE’EMANU Eneliko

• Late of Lower Hutt • Aged 71 / Died 22’07’21

• Late of 22 Islay Place, Wiri, Auckland • Fork Hoist Driver • Aged 41 / Died between 26’03’21 and 27’03’21

HEWLETT Raymond Herbert

WIND Enid Barbara Doreen

• Late of Whitianga Continuing Care, 6 Halligan Road, Whitianga • Never in a legal relationship • Builder • Aged 88 / Died 26’06’21

• Late of 16 Flatbush Road, Otara, Auckland 2023 • Aged 82 / Died 28’08’07

NELMES Charles Joseph

• Late of 24 Heretaunga Street, Tikipunga, Whangarei 0112 • In a de-facto relationship • Caregiver • Aged 39 / Died 01’03’21

• Late of 15 Radar Road, Hot Water Beach • Married

WOOLLAM Stacey Melissa

Aug 6 2021 Issue 26

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

Cyber Security: A Guide for Law Firms Tuesday 14 September | 4.00pm - 5.30pm With cyber attacks having been experienced by even large law firms in New Zealand, could your firm deal with the resultant loss of information, money, time and trust, and the potentially adverse impact on reputation and insurance premiums (and even availability of insurance)?

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

Running an Effective Jury Trial Saturday 18 September | 9.00am - 5.30pm Jury trials require a specific set of advocacy skills. Given the serious nature of cases heard in a jury trial setting, ‘getting it wrong’ can have significant implications for the accused – and for defence counsel. Aptitude in preparation and presentation is key.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd