LawNews - Issue 29

NEWS Aug 27, 2021 Issue 29

Inside ■ COVID-19

Insurers and the pandemic P03

■ POLITICS

The politics of ‘stop’ and ‘go’ P06

Insurers, employers grapple with adls.org.nz

THE PANDEMIC

Contents 03

How insurers and employers are dealing with the pandemic

INSURANCE EMPLOYERS LITIGTION

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

08 COVID-19 TENANTS LEASES

Dealing with ‘no access’ clauses

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

13 JUDGES TALIBAN REVENGE

ADLS backs Afghan rescue bid

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

06-07 09 EVENTS

LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year.

To subscribe, please email reception@adls.org.nz.

10-11 FEATURED CPD

Photo: Nigel Stripe / Getty Images

12 CPD IN BRIEF

Why political inertia has beset New Zealand

©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: Amornrat Phuchom / Getty Images

02

Aug 27 2021 Issue 29

lockdown, not material damage to the business premises’, which is usually needed for BI policies to pay out.

High-profile cases in the UK and Australia, and hundreds more in the United States, have given business owners in those countries hope. New Zealand businesses are unlikely to be as lucky because of differently worded policies.

Neither MinterEllisonRuddWatts partner Andrew Horne nor AUT law lecturer Christopher Whitehead who were interviewed for this article have seen or heard of any Covid-related BI litigation in New Zealand. That’s not to say that there won’t be. Horne did hear of an insurance broker INSURANCE/EMPLOYMENT LAW/COVID-19 gaining a restraining order against a client, upset his income protection policy didn’t pay out.

A test case was brought in the United Kingdom by the Financial Conduct Authority (FCA) and leapfrogged to the Supreme Court. In that judgment, Covid was deemed to be an effective proximate cause of the government’s restrictions on businesses. Prevention of access didn’t require legal or physical hinderance. An instruction from a public authority triggered the extension; a total cessation of business activities was not required.

DIANA CLEMENT Even where there The court also determined that the oft-cited Orient Express test case after Hurricane Katrina wrongly decided Covid-19 has been a moment of reckoning for insurance was proof the virus that the business loss would have happened anyway because companies and employers. The repercussions are ongoing, was present at of wider consequences. ensuring good business for insurance and employment The UK decision is useful in giving guidance on how to lawyers around the globe. the location, the interpret or construe certain wordings in BI policies and, The insurance industry scrambled during December 2019 insurance industry and January 2020 to limit its exposure to the emerging threat consequently, other types of policies, Whitehead says.

He has written more about how the test case shows how of a new virus from Wuhan, which soon spread across the contended that the misleadingly lawyers use the terms ‘cause’ globe. Covid became a notifiable disease and ‘causation’. That discussion can be under the Health Act 1956 on 30 January virus did not cause The clarity that seen here.

2020 and declared a pandemic by the comes from physical loss or In June this year, Australian insurers WHO on 11 March 2020. the court cases failed to gain special leave from the High Most business interruption (BI) and damage Court of Australia to appeal a judgment travel policies had ‘sorry mate, no cover’ allows insurers exclusions for a pandemic, or government to word their way from November 2020: HDI Global Specialty SE v Wonkana No. 3 Pty Ltd trading as intervention such as lockdowns. For out of liability for Austin Tourist Park [2020] NSWCA 296. employers, the implications were longer future claims The case related to a specific exclusion burning, with the government and clause that is not relevant to New Zealand employers grappling with issues such as polices. The Insurance Council of Australia compulsory testing and vaccination. has lodged another test case, citing Last year, LawNews covered the legal multiple issues. If successful, the industry can most likely issues surrounding the three. As the pandemic has marched avoid paying out on as many as 250,000 policies. More can on, so too has the law, here and abroad. be read about the Australian action here.

BI insurance

By May this year, 335 cases relating to government shutdown and other orders had been filed in the United When the pandemic hit, insurers relied on the notifiable diseases clause in policies, says Insurance and Financial Services Ombudsman Karen Stevens. They were also quick Continued on page 04 to point out that ‘your loss is due to a government-ordered

How Covid is playing out for insurers and employers

03

States, the National Law Review reported in mid-August. The review noted more than 50 decisions so far resulted in the courts either granting summary judgment to policyholders or denying insurance companies’ motions to dismiss.

The central argument in most of these cases, the publication noted, was whether there was physical loss or damage to the policyholder’s locations, which is usually required to trigger any liability. Even where there was proof the virus was present at the location, the insurance industry contended that the virus did not cause physical loss or damage.

The US cases are of interest, says Horne, because they have gone both ways. “In one case, Cincinnati, there was a finding that Covid did not cause direct loss to property, or that lost operations were not synonymous with physical loss.

But in another decision in the state of New Hampshire the court found that Covid had caused distinct and demonstrable alteration to the insured’s hotel on a precedent that extended the definition of physical loss beyond just tangible changes to property. The court found that the microscopic virus that you can see only with electron microscope was, in fact, physical damage to the property,” says Horne.

That doesn’t mean New Zealand businesses are likely to get BI pay-outs any time soon. The Reserve Bank of New Zealand noted in its May 2021 Financial Stability Report that most insurers here believe the overseas court rulings in the UK and Australia are not applicable for most New Zealand BI policies.

While the cases internationally have raised issues, they’re not that interesting legally, Whitehead says, because they have mostly been courts determining whether or not wordings fitted the exact details of the claim. But they are interesting from a policy perspective.

Whitehead says any victories for policyholders will be short-lived. “The clarity that comes from the court cases allows insurers to word their way out of liability for future claims,” he says.

Endorsement writers in London have been working hard during the last year, Horne adds “There was a proliferation of endorsement [wordings] that have come out of the Lloyd’s Market Association.” Minters works with a number of large insurers here and many have incorporated such clauses into a range of policies to effectively exclude any loss that is connected to fear or threat of communicable disease, he says.

In the US, 11 states have pending legislation addressing BI insurance policies. Some of these proposals would retroactively force insurers to pay for BI losses incurred by the coronavirus shutdowns.

04

Photo: robert brown / Getty Images

Continued from page 03

Travel insurers The pandemic wrought havoc on travel insurers. Many, but not all, policies included pandemic or epidemic clauses, which translated into ‘yeah, nah’ and claims were declined.

Over the next few months many insurers rewrote and tightened their policies to remove any ability for customers to claim in the future. The issue for insurers then became too few people buying policies.

Insurers eventually realised they’d have to offer some sort of pandemic cover if they wanted to do business. The airlines were the first to step in, offering limited cancellation cover.

The greater risks of having your trip cancelled or extended because the trans-Tasman bubble had burst and the cost of resulting MIQ stays weren’t, and still aren’t, covered.

Horne says underwriters can accept the risk of a number of individuals coming down with Covid-19 and needing treatment. Only a fraction of those will end up in hospital.

Insurers can’t, however, get their heads around the risks involved in burst bubbles. “They can’t necessarily accept that suddenly every [New Zealand traveller] in Melbourne claims for MIQ stays when the bubble bursts,” he says. “That’s not to say that actuaries won’t get their heads around that in the future.”

Here in New Zealand several complaints have made their way to dispute resolution services, the Insurance & Financial Services Ombudsman and Financial Services Complaints

Continued on page 05

Aug 27 2021 Issue 29

Continued from page 05

Limited but to date none has escalated to the courts. Mostly they’re too small financially to be worth policyholders taking court action, says Stevens.

Litigation by travellers in other jurisdictions has offered few surprises. Being Americans, many travellers in that country automatically sued their insurers. Some cases came down to whether stay-at-home orders limiting non-essential travel constituted quarantine, in which case policyholders would be covered and whether a pandemic could be a natural disaster. “English, like every other language, is not precise,” Tom Baker, a University of Pennsylvania law professor, told Bloomberg Law. “So, there’s going to be room for people to make arguments about why a policy does or doesn’t offer coverage.”

dependent economically on events like football matches, rock concerts and so forth, which you can’t really plan for unless you’ve got some way of insuring.”

The risks haven’t been that great in New Zealand. The All Blacks vs Wallabies test earlier this month at Eden Park must have gone ahead uninsured, he says.

No vax jab, no job

Employers and workers have faced big questions around Covid such as whether employment contracts could be varied. Then the issue of compulsory Covid testing and vaccines for border workers raised its head. The mere suggestion raised red flags under the Employment Relations Act 2000 and, in particular, the New Zealand Bill of Rights Act 1990 (BORA). Section 11 of BORA gives people the right to refuse to undergo medical treatment and s 5 allows for justified limitations to all BORA-protected rights.

In May 2021, nine border workers employed directly by On the drawing board New Zealand Customs were fired after refusing a jab under the then Covid-19 Public Health Response (Vaccinations) The government plans to introduce rules requiring insurers Order 2021. to have ‘fair conduct program’ as part of Barrister Catherine Stewart, convenor the new conduct of financial institutions Some other of the ADLS Employment Law committee, (CoFI) regime in the Financial Markets countries have says in addition to substantive justification, (Conduct of Institutions) Amendment Bill. been quite an employer would need to follow a robust The new conduct rules are being debated process before dismissing workers. Some

by Parliament and are expected to pass conscious of of the workers are taking their case to into law in 2023. the fact that a court. Advocate Ashleigh Fechney believes The Insurance Contract Law Reform lot of people their right to refuse medical treatment has Bill was drafted before Covid and the are dependent been breached. pandemic is unlikely to delay it, although To date, there is no case law in sources say it has fallen into a black hole. economically Going back to the drawing board now New Zealand. However, a much on events like would slow down other much-needed discussed case has been heard in football matches, reforms, Whitehead says. The reform, Australia. Barber v Goodstart Early which among other things addresses Learning [2021] FWC 2156, involved a rock concerts issues around accidental non-disclosure childcare centre worker who was fired for and so forth, by policyholders, was first recommended in refusing a mandatory flu vaccine and which you can’t 1998, says Stevens. failing to provide suitable medical reasons really plan for Horne adds that typically regulators for her refusal. The company had consulted here are interested in systems failures with unions and employees and followed a unless you’ve such as policies being sold that are robust process. The Fair Work Commission got some way of not appropriate for clients’ needs, or ruled the dismissal was not unfair. The insuring overcharging. They are less interested in decision was specific to that industry, insurers who have declined to take cover the flu vaccine and Australia’s different as they did with pandemic exclusions. employment laws, Stewart says, but some One thing that has surprised Horne and his colleagues at of the principles would be relevant here – for example, New Minters is that our government hasn’t moved to provide some Zealand’s Health and Safety Act has a statutory obligation to sort of government-backed risk pool for live events. ensure employees’ health and safety.

“We have seen that in other countries. In the UK, they have the live events reinsurance scheme. Some other countries Landlords, tenants and the pandemic – have been quite conscious of the fact that a lot of people are see page 8 ■

Andrew Horne

Christopher Whitehead

05

POLITICS

The politics of ‘stop’ and ‘go’ The National Party’s best political years have been the ones it spent consolidating and extending the most popular reforms of its ‘socialist’ opponents in the Labour Party

yells ‘stop!’ to patently silly ideas but not for one which threatens to put an end to good ones. Successful National leaders tend to be those who appreciate the difference.

Good ideas

Chris Trotter

Chris Trotter Who would be a conservative in the New Zealand of 2021? The Right of New Zealand politics, while not exactly moribund, is most certainly not what it was.

John Key, who bestrode this country’s political scene like a colossus for the best part of a decade, has sequestered himself in his tent like a latter-day Achilles. Until the National caucus sees fit to elect Christopher Luxon as its leader and Nicola Willis as his deputy, he will not venture forth. Lacking Key’s imprimatur, Judith Collins flounders – and Act’s poll numbers swell impressively.

Divided like this, the Right’s chances of conquering are looking slim.

Nearly 75 years ago, a young American journalist called William F Buckley founded the National Review, soon to become required reading for intelligent conservatives the world over. In his magazine’s mission statement, Buckley famously described it (and conservatism generally) as a force that “stands athwart history, yelling ‘stop’ at a time when no one is inclined to do so, or to have much patience with those who so urge it.”

Buckley’s fears notwithstanding, there turned out to be plenty of Americans only too happy to arrest the progress of the ‘Fabian operators’ at work in both the Democratic and Republican parties.

Nor was there any shortage of volunteers eager to bring “the intellectual cliques which, in education as well as the arts, are out to impose upon the nation their modish fads and fallacies” to heel.

In America, history turned out to be surprisingly biddable.

When the grand master of New Zealand advertising, Mike Hutcheson, vouchsafes the view that New Zealanders have always been – and remain – socialists at heart, it behoves aspiring conservative politicians to listen.

Certainly, the National Party’s best political years have been the ones it spent consolidating and extending the most popular reforms of its ‘socialist’ opponents in the Labour Party. New Zealanders, it seems, are happy to vote for a National Party that 06

In spite of the Prime Minister’s inspiring rhetoric, capitalism continues to sleep safely in its bed, snuggled-up tight with neo-classical economics

The central problem of contemporary New Zealand politics, however, is that it has been quite a long time since either Labour or National came up with a good idea. David Seymour and his Act Party will, of course, object that the ideas of Act’s founder, Sir Roger Douglas, were very good ideas indeed. So good, in fact, that neither Labour (which introduced Rogernomics in 1984) nor National (which toppled Labour in 1990) has seen fit to stand athwart the relentless march of neo-classical economics and yell ‘stop!’

This bi-partisan refusal to heed the wishes of the ‘socialists at heart’ who have tried everything from MMP to NZ First to the Alliance to halt the advance of neo-classical economics has resulted in a dangerous clogging of New Zealand’s political arteries. The voters are desperate for someone in politics to yell ‘go!’ but have yet to elect anyone willing to oblige them.

The obvious rejoinder to those so eager for a change of direction is, ‘go where?’ Where are the policies that will show up the defenders of neo-classical economics for the charlatans they supposedly are?

This is where the habitués of social media platforms tend to insert the word ‘crickets’, indicating a deathly silence in which only the shrill chirruping of insects can be heard. It is a silence that has beset the Left of New Zealand politics for nearly 20 years. Not since the days of Jim Anderton’s Alliance, with its annual alternative budgets, has the neo-classical status quo been openly challenged by a comprehensive and rigorously costed economic program.

Jacinda Ardern’s Labour-led governments have certainly talked about ‘transforming’ the New Zealand economy. Viewed from a decidedly optimistic left-wing perspective, her ‘politics of kindness’ could even be said to carry the whiff of revolutionary change.

On the night Winston Peters made her New Zealand’s Prime Minister, ‘Jacinda’ even had one or two unkind words to say about capitalism, which was more than any Labour leader had had to say on that subject for many years. But talk is cheap.

In spite of the Prime Minister’s inspiring rhetoric, capitalism continues to sleep safely in its bed, snuggled-up tight with neoclassical economics.

Continued on page 07

Aug 27 2021 Issue 29

Continued from page 06

Perhaps in response to the popularity of, first, Bernie Sanders and then Alexandria Ocasio Cortez, the Greens appeared to latch onto the US Democratic Party’s unusually obstreperous left-wing’s ‘Green New Deal’ project. The Green Party co-leader, Marama Davidson, even joined an international group of Green politicians committed to rolling out Green New Deals across the globe.

In its essence, Bernie’s and AOC’s Green New Deal sought to tackle the crisis of climate change with the same energy and daring as Franklin Roosevelt’s New Deal tackled the Great Depression of the 1930s. A massive mobilisation of public resources would deliver a national infrastructure comprehensively re-designed to reduce greenhouse gas emissions. Industry and agriculture, powered by renewable energy sources, would operate sustainably. If Biden had bought even half of it, the Green New Deal would have been big and very bold. But he didn’t.

Davidson, too, had reckoned without two things: the NZ Labour Party is currently positioned well to the right of the US Democratic Party on both economics and climate change and; her co-leader James Shaw is a committed adherent of ‘Green Capitalism’ and believes climate change will be averted by a ‘technological fix’.

Political inertia So, the question remains: ‘go where?’ To which another, perhaps even more important question might be added: ‘go how?’

If this government has taught us anything at all, it is just how few state levers remain attached to the wires that pull fingers out. Even if Jacinda’s cabinet had been minded to transform New Zealand, it is doubtful that the state sector any longer possesses the talent or the empowering legislation or the plant and machinery, or – most importantly – the will to intervene decisively in the economic and social life of the nation.

The New Zealand that could do stuff – like dam the Waikato and Waitaki rivers, complete the Manapouri power project, set up a pulp and paper industry and dam the Clutha at Clyde. The New Zealand that could build 30,000 state-funded houses in three years. The country that was run like a Polish shipyard. That New Zealand no longer exists. Indeed, the dismantling of that ‘can do’ New Zealand was a key objective of the neo-classical policy regime known as Rogernomics and it was very successful.

Nothing that matters can be done quickly or easily anymore – not even when people want to, which, for the most part, they

Not even the goad of a global pandemic was sufficient to transform the Ministry of Health from a ponderous policy bureaucracy into the nation’s first line of defence

don’t. Because even after 30 years of decaying infrastructure, underfunded social services and declining bureaucratic efficiency, most senior public servants remain vehemently opposed to the idea that in order to meet the urgent needs of their people, there are times when countries can and should be run like Polish shipyards.

Not even the goad of a global pandemic was sufficient to transform the Ministry of Health from a ponderous policy bureaucracy into the nation’s first line of defence without a sorry succession of failures to both execute policy and communicate information effectively. Were it not for the talented collection of individuals advising the Prime Minister, and her own formidable communications skills, New Zealand would not have fared nearly so well in the fight against Covid-19.

Here, perhaps, is the explanation for the extraordinary political success of John Key. His masterful inaction (except in response to the GFC and the Christchurch earthquakes) may have reflected no more than his shrewd recognition, very early on, that ‘doing stuff’ wasn’t really in the state’s remit any longer.

When the ideological goal was “to get [the state] down to the size where we can drown it in the bathtub”, crisis management was all that could reasonably be attempted. Any promises to do more than smile and wave were bound to be broken – so don’t make them.

It is surely no accident that the events which ‘made’ Jacinda Ardern – the Christchurch mosque massacre and the Covid-19 pandemic – had nothing whatsoever to do with political promises, and were of a scale that simply over-rode the ideological inertia of the public service. There was no playbook for these crises, forcing the Prime Minister to rely on her instincts and a small number of extraordinary individuals. The rusted mechanisms of the state offered little help.

Tellingly, it was the state institutions most in use - the hospitals, schools, police and army – that proved their worth when the chips were down. And the people: the so-called ‘Team of Five Million’. When terror struck, and the virus broke through, New Zealanders yelled ‘go!’ and Jacinda went. Her reward? A 50.01% share of the party vote in 2020.

Conservative though he was, Key was never required to stand athwart history and cry ‘stop!’ because New Zealand had already been brought to a shuddering halt and nobody was quite sure how to start it up again.

Now we know.

Chris Trotter is a political writer and commentator of more than 30 years’ experience. He is the editor of the Bowalley Road blog. ■ 07

PROPERTY LAW/COVID-19

‘No access’ clauses back in the spotlight Although obtaining judgment will involve more time and cost than the PLA notice process, it will avoid the risk of the landlord being found to have repudiated the lease and being left exposed to a damages claim from the tenant

David Friar, Jane Holland & Morgan Powell

date in accordance with clause 27.5, but no agreement was reached. In the meantime, it stopped making any payments under the lease.

In August 2020, SHK issued a notice under section ​​​​Covid-19 lockdowns have brought ‘no access’ clauses 245 of the PLA. The notice informed NZDMG that it in leases into sharp focus. The clauses, such as was in default under the lease by failing to pay rent clause 27.5 of the standard ADLS lease, provide for an abatement of rent while the tenant is unable to access and required NZDMG to pay the arrears within 30 working days. The notice did not include the rent due the premises. for March 2020, but otherwise claimed the full amount In many, if not most cases, landlords and tenants owing for April, May, June and could reach an agreement The PLA provisions July 2020. about what rent and outgoings NZDMG failed to comply are payable during lockdowns. relating to the with the PLA notice and SHK But what happens when cancellation of leases cancelled the lease by retaking agreement can’t be reached, are a code and a possession of the premises on the tenant doesn’t pay and landlord cannot validly 8 September 2020. the landlord wants to issue a SHK subsequently Property Law Act (PLA) notice cancel a lease unless it commenced summary to cancel the lease? complies with the Act’s judgment proceedings against The recent case of SHK requirements NZDMG and its guarantors Trustee Company Ltd v in respect of the unpaid rent.

NZDMG Ltd shows this can be The guarantors opposed SHK’s a risky approach for landlords. application on the basis that SHK had not taken into The facts account NZDMG’s right to an abatement of the rent.

NZDMG leased office and warehouse space from Decision SHK in Auckland. The parties used the ADLS Deed of Lease. Clause 27.5 provides that if there is an The High Court granted SHK’s application for emergency, the tenant is entitled to a suspension of summary judgment, except for amounts owing during some or all of the rent if it is “unable to gain access to the lockdowns, from 23 March to 31 May 2020 and the premises to fully conduct the tenant’s business 13 August to 30 August 2020. The court held that it from the premises” for a number of reasons, including could not give summary judgment because NZDMG where there is a “restriction on occupation of the claimed to be entitled to an abatement of rent. It premises by any competent authority”. said that “assessing a fair proportion is an evaluative exercise that cannot be done on a summary judgment NZDMG’s last rental payment under the lease application. was on 26 March 2020, the first day of the level 4 lockdown. NZDMG sought a rent adjustment from that “The court can only record that the issue has been 08

raised, recognise that it cannot decide the matter on a summary judgment application, and note it as a trial issue for decision after the court has heard full evidence.”

While summary judgment was entered in part, more problematically for SHK the court accepted it was arguable that the PLA notice was invalid. That was because the notice claimed the rent in full, with no adjustment to reflect the tenant’s entitlement to abatement under clause 27.5. The court therefore held it was ​arguable that SHK was not entitled to cancel the lease.​

Comment The PLA provisions relating to the cancellation of leases are a code and a landlord cannot validly cancel a lease unless it complies with the Act’s requirements.

Given the court’s comments on summary judgment, it is now open for NZDMG to bring a claim against SHK on the basis that it failed to issue a valid PLA notice, and that the subsequent purported cancellation of the lease and retaking of possession was unlawful. If successful, this will mean SHK has repudiated the lease and will leave it exposed to a potential claim by NZDMG for damages.

PLA notices are commonly used by landlords to cancel a lease where a tenant is failing to pay rent.

Where some of the arrears relate to a period for which the tenant is (or may be) entitled to rent abatement, it will be risky for a landlord to issue a notice under the PLA that includes the abatement period and move to cancel the lease.

Landlords will need to rely on non-abatement periods only, or alternatively will need to instead commence proceedings to obtain judgment as to the amount owing under the lease during the abatement period (potentially by way of arbitration, depending on the provisions of the lease). Although obtaining judgment will involve more time and cost than the PLA notice process, it will avoid the risk of the landlord being found to have repudiated the lease and being left exposed to a damages claim from the tenant.

David Friar and Jane Holland are partners at Bell Gully and Morgan Powell is a senior associate at the same firm ■

Events Hamilton sundowner Hosted at Gothenberg on Wednesday 4 August.

Janey Haringa, Judy Leeson, Treasure McKinstry and Rodney Lewis

Hamish Smylie, Maddie Kingma and Callum McCluskey

Kieran Lomas, Jaime Lomas, Roxy Robertson, Jesse Savage and Jennifer Morgan Judge Dean Blair and Sam Hood

Laura Fischer, Alexandra Till and Joe Perrott

Alice Nunn, Dianne Blue and Judith Wake

Upcoming events affected by Covid-19 restrictions Ticketholders for upcoming events that need to be cancelled or rescheduled due to alert level restrictions are being contacted by email.

Please contact events@adls.org.nz if you have any queries.

FEATURED CPD

Expert evidence on memory SCIENCE EXPERT EVIDENCE

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

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

Legal ethics and client care: a practical guide

Seminar | Live Stream 1.5 CPD hrs Wednesday 8 September 4pm – 5.30pm Presenters Michael Taylor, partner, Russell McVeagh and Joanna Trezise, senior solicitor, Russell McVeagh

PRACTICAL DUTIES CONFLICTS

IN PERSON

LIVE STREAM

Refresh your understanding of your duties and responsibilities when it comes to client relationships and learn how to apply the theory of legal ethics to real world scenarios which commonly arise in legal practice. 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.

LIVE STREAM

Cybersecurity: a guide for law firms RISK PLAN MANAGE

10

Seminar | Live Stream 1.5 CPD hrs Tuesday 14 September 4pm – 5.30pm Presenters Lloyd Gallagher, Gallagher & Co; Arran Hunt, Stace Hammond; Edwin Lim, Hudson Gavin Martin and Campbell McKenzie, Incident Response Solutions

“It takes 20 years to build a reputation and few minutes of cyber-incident to ruin it” – Stephane Nappo (Global Head Information Security for Société Générale International Banking since 2011).

The risk to cybersecurity is real. You should treat it as a matter of when, rather than if, your firm will be hacked. For many NZ law firms, the once unthinkable has already happened. Our experienced panel will provide practical guidance on what you can do to bolster your defences in the face of faceless, innumerable and ever-inventive enemies.

IN PERSON

LIVE STREAM

Aug 27 2021 Issue 29

adls.org.nz/cpd

Unit titles: dealing with complexity COMPLEXITY GOVERNANCE DEVELOPMENTS

Seminar | Live Stream 2 CPD hrs Thursday 16 September 4pm – 6pm Presenters Joanna Pidgeon; Thomas Gibbons and Vicki Toan Chair Liza Fry-Irvine, director, Liza Fry-Irvine Law

IN PERSON

cpd@adls.org.nz

09 303 5278

Learning outcomes Gain a greater understanding of the tensions that can arise between different types of owners and occupiers in unit title developments.

Learn how to meet governance issues and get top tips for legal compliance and best practice in dealing with practical examples of day-to-day issues.

Be informed about recent developments in unit titles and body corporate law.

LIVE STREAM

Running an effective jury trial PREPARATION PRESENTATION GUIDANCE

Conference 7 CPD hrs Saturday 18 September 9am – 5.30pm Presenters Marie Dyhrberg QC; Paul Dacre QC; Julie-Anne Kincade QC; Simon Lance; Ish Jayanandan; Guyon Foley and Maxine Pitch Chair Judge David McNaughton

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. During this intensive day and in a collaborative environment, attendees will receive guidance on jury trial advocacy skills from a panel of highly experienced and well-regarded presenters.

FIND OUT MORE

Medically assisted dying CAPACITY ELIGIBILITY INSIGHT

Seminar | Live Stream 2 CPD hrs Wednesday 20 October 2pm – 4pm Presenters Grant Illingworth QC; Richard McLeod, partner, McLeod & Associates; Dr Jeanne Snelling, lecturer, University of Otago; Dr Jane Casey, consultant psychiatrist and psychogeriatrician, Vermont Street Specialists

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

FIND OUT MORE 11

CPD IN BRIEF

Breach of mandate & licence fee damages

Seminar | Live Stream 1.5 CPD hrs Tuesday 21 September, 4pm – 5.30pm Presenters Matthew Harris, partner, Gilbert Walker and Daisy Williams, barrister, Shortland Chambers

The second in a two-part series on remedies, this seminar discusses remedies for agents’ breach of mandate and licence fee damages. It will interest contract and commercial lawyers, civil litigators, intellectual property practitioners, trusts lawyers and in-house lawyers for banks and other organisations that handle the assets of customers or other third parties.

IN PERSON

Class and funded litigation

Seminar & Live Stream 2 CPD hrs Wednesday 22 September 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

Burning Issues Forum 2021

Criminal disclosure uncovered

LIVE STREAM

Forum 2 CPD hrs Thursday 23 September 4pm - 6.15pm Presenters Philip Skelton QC; Mere King; Liz Coats; Shelley Kopu and Rosemary Wooders Chair Rachael Judge, senior associate, Simpson Grierson

Cast aside your scarf and hat and warm yourself at the boiling vat that is the Burning Issues Forum 2021. Come see the flickering fangs of orange torch the scorching cauldron’s bottom! Legislation, reinstatement, tikanga and name suppression are some of the scalding hot topics that will be served, crackling and steaming, at this, our annual inferno. And though our eyebrows singed may be, we’ll sit in awesome reverie, ‘til the smoke clears, leaving clarity!

Seminar & Live Stream 2 CPD hrs Thursday 30 September 4pm – 6.45pm Presenters Julie-Anne Kincade QC and Robin McCoubrey, partner, Meredith Connell Chair Judge Belinda Sellars QC

Disclosure can be fundamental, whether to prove a case or support a defence. Yet it has challenges. The scope for disclosure has widened as technology has developed. Today, counsel needs to consider seeking cellphone provider records of witnesses or social media posts together with more traditional items such as accounting and bank records or fingerprint evidence. Attention must be paid to the independence (or otherwise) of the source and production of evidence. Responsibilities and obligations of counsel can be confusing.

FIND OUT MORE

IN PERSON

Excellence in Legal Writing (Auckland) Monday 18 October, 100pm - 4.15pm | Workshop | 3 CPD hours Visit adls.org.nz for more information.

12

LIVE STREAM

LIVE STREAM

Aug 27 2021 Issue 29

INTERNATIONAL LAW

ADLS and Bar Association back Afghan rescue bid Jenni McManus ADLS and the New Zealand Bar Association (NZBA) are backing the call from Supreme Court judge Susan Glazebrook for the New Zealand government to help evacuate women judges and their families from Afghanistan.

Justice Glazebrook, who is President of the International Association of Women Judges, last week said Afghanistan’s 250 women judges were in grave danger of being targeted by the Taliban who now rule the country. She urged the New Zealand government to pull out all stops to offer them safe passage and refuge, saying they were at risk of revenge attacks because the Taliban and their allies do not like women sitting in judgment over men.

ADLS President Marie Dyhrberg QC says the New Zealand government must step up to the plate. It had the resources and must use them.

“Legal professionals in New Zealand and internationally should be throwing their support behind these women,” Dyhrberg says. “We have a voice, and we can speak out without repercussions so we must use it. New Zealand has a track record of lawyers working on the ground in Afghanistan, helping to set up the systems, processes and legislation to deal with sexual violence. All that work is now likely to be lost.”

The NZBA has also taken up the call. President Paul Radich QC says while all judges in Afghanistan are at risk, “we have very clear evidence that the women judges are particularly vulnerable….

ADLS President Marie Dyhrberg QC “Judges in many places around the world risk harm by doing their jobs. They need to know that the international community will support them when the need arises.”

The NZBA says this support is important for maintaining the rule of law. Along with helping evacuate the Afghan judges, the New Zealand government could also expedite visas and provide relocation and resettlement to those who need it. There should also be an immediate pause in deportations to Afghanistan, it said. ■

Burning Issues Forum 2021 Thursday 23 September | 4.00pm - 6.00pm Presenters: Philip Skelton QC, Bankside Chambers; Mere King, Partner, Buddle Findlay; Liz Coats, Partner, Bell Gully; Shelley Kopu, Lawyer, Shelley Kopu Law; Rosemary Wooders, Senior associate, Bell Gully Chair: Rachael Judge, Senior associate, Simpson Grierson Followed by drinks and nibbles.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

13

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

CARRINGTON Gaine David (aka CARRINGTON, Gaine) • Late of 47 Pa Road, Hahei • Married • Retired carpenter • Aged 88 / Died 28’07’21

DAYMOND-KING Peter John

(09) 303 5270

PAHIA (NEE TUTAPU) Francis Mata • Late of 14 Solo Place, Manurewa, Auckland • Housewife • Aged 63 / Died 02’03’17

TE WAKE Colleen Heather

• Late of 614 Inland Road, Helensville, Auckland • Retired • Aged 78 / Died 26’07’21

• Late of 2147A West Coast Road, Panguru, Northland • Widowed • Self-employed farmer • Aged 68 / Died 25’07’21

DUNFORD Gavin

WHARE Michael Victor Herewini

• Late of 43 Sturges Avenue, Otahuhu, Auckland • Single • Storeman • Died 14’07’21

• Late of 2 Tamaki Avenue, Otahuhu, Auckland • Never in a legal relationship • Factory worker • Aged 55 / Died 18’01’20

GOLDUP Peter Stephen • Late of 8 Hosking Place, Masterton • Quality Assurance for Timber • Aged 65 / Died on or about 08’03’21

14

Fax: (09) 309 3726

Inspiring excellence in the classroom and on the court.

Open Day 18 September | 10.30am-2.30pm

Learn more

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

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

Aug 27 2021 Issue 29

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

Medically Assisted Dying – The Deadline Approaches Wednesday 20 October | 2.00pm - 4.15pm This seminar probes the Act and the corresponding process, offers insights into its implementation, considers capacity and other clinical challenges from the perspective of a psychogeriatrician, and outlines some of the red flags and thorny issues.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

15