LawNews - Issue 30

NEWS Sep 03, 2021 Issue 30

Inside ■ ADLS

Message from ADLS President Marie Dyhrberg QC P05

■ HUMAN RIGHTS

Dissent and the case for mandatory vaccines P07

Supreme Court: no double-dipping in

adls.org.nz

EMPLOYMENT CLAIMS

Contents 03 PERSONAL GRIEVANCE DEFAMATION LITIGATION

Supreme Court clarifies jurisdiction of the Employment Relations Authority

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

05 COVID-19 LEGAL PRACTICE STRESS

President’s message: Marie Dyhrberg QC

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

07 VACCINATION COVID-19 DISSENT

Dissent and the case for compulsory vaccination

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

07 08 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

Photo: DAVID GRAY / Contributor / Getty Images

FEATURED CPD

12 CPD IN BRIEF

Cracks in the public consensus are beginning to show

©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: MOAimage / Getty Images

02

Sep 03 2021 Issue 30

EMPLOYMENT/DEFAMATION

Supreme Court clarifies

jurisdiction

in employment disputes

The issue with which the Supreme Court grappled was how the tort exception squared with the ERA’s supposed exclusive jurisdiction over employment relationship problems

Ali Romanos On 20 August 2021, the Supreme Court delivered judgment in FVM v TZB [2021] NZSC 102. The case was not a defamation proceeding. Nor was the dispute predicated on defamatory statements.

However, the court’s findings on the tort exception to the Employment Relations Authority’s jurisdiction have recalibrated the determination of defamation law in employment-related disputes.

The law is now settled: if a claim for defamation (or any other tort save for industrial/economic torts pertaining to strikes and lockouts) can be framed as a conventional employment relationship problem such as a personal grievance, then it must be brought through the Employment Relations Authority.

How it works The standard brief goes something like this: the employee (or former employee) will come upon statements by a manager or colleague which meets the usual elements of an actionable defamation claim: publication, identification and defamatory meaning.

The statements will be work-related and bear on the employee’s performance or character.

Should the plaintiff file separate proceedings through the courts? Or should the defamatory statements be enveloped by an existing personal grievance?

The legal advice will normally hedge itself around the application of qualified privilege and its potential rebuttal. Another mainstay will be the legal and practical implications of what is usually a limited pool of recipients of the impugned email, performance appraisal or the like. Issues of reputational harm and proportionality (potential damages vs anticipated legal costs) will be assessed. In most cases, the Employment Relations Authority (ERA), with its more simplified processes and less adverse costs

If a claim for defamation (or any other tort save for industrial/economic torts pertaining to strikes and lockouts) can be framed as a conventional employment relationship problem, such as a personal grievance, then it must be brought through the ERA Act. This section gives the ERA exclusive jurisdiction to make determinations about ‘employment relationship problems’.

To give the flavour, the jurisdiction covers disputes about individual and collective employment agreements, bargaining, personal grievances, FVM v TZB wages, unions, strikes and lockouts (with exceptions), penalties arising The case itself needs only brief from employment-related legislation, mention. The plaintiff brought parallel reinstatements, patent issues and other proceedings in the ERA and High Ali Romanos matters.

Court. Both claims concerned issues However, the crunchy part for the that arose in the plaintiff’s employment.

Supreme Court’s consideration was the tort exclusion The claim before the ERA included claims for in s 161(1)(r). In full, this provides: unjustified disadvantage (with particulars of bullying, discrimination and differential treatment), unjustified dismissal and negligence. The High Court claim The Authority has exclusive jurisdiction to make was brought solely in negligence, yet the particulars determinations about employment relationship mirrored those in the claim before the ERA. problems generally, including— … any other The claim before the ERA was stayed because action (being an action that is not directly within of medical issues. Unable to lift the stay, the plaintiff the jurisdiction of the court) arising from or sought to advance the High Court claim. The related to the employment relationship or related defendant applied successfully to strike out the to the interpretation of this Act (other than an claim, the High Court finding the ERA had exclusive action founded on tort). jurisdiction over the dispute. The Court of Appeal upheld this decision. The Supreme Court then granted The issue with which the Supreme Court grappled leave to appeal.

On appeal, the Supreme Court examined the Continued on page 04 application of s 161(1) of the Employment Relations

consequences upon failure, will be considered the more suitable vehicle to litigate the dispute.

This advice is now virtually moot.

By its decision, the Supreme Court has restricted such claims – or, rather, ‘problems’ – to the ERA’s jurisdiction.

03

Continued from page 03

was how the tort exception squared with the ERA’s supposed exclusive jurisdiction over employment relationship problems.

Glazebrook J read the exclusion at face value: that actions in tort are excluded from the exclusive jurisdiction of the ERA. (See [218].)

The other judges disagreed. The majority (Winkelmann CJ, O’Regan and Williams JJ) held that in view of the themes they saw arising from the Employment Relations Authority (relationships, not contracts; empowerment, pragmatism and accessibility; and problems, not causes of action), the better view was that if a claim could be framed as a personal grievance (or another claim for which the ERA had exclusive jurisdiction), then it must be brought through the ERA. (See [93]–[95].)

Flowing from this, the court provided some examples of how this would work in practice. They began with a defamation example:

So, for example, if an employer accuses an employee of dishonesty, notifies other employees of the accusation and dismisses the alleged wrongdoer, that is an employment relationship problem because the words reflect their work context. There has been an unjustified dismissal.

The employee may not sue the employer in the High Court, say in an action in defamation, though they would be able to seek compensation under s 123(1)(c) of the Act, which confers a broad discretion to award compensation. (See [96].)

According to the majority, the only caveat would be if the problem, though work-related, could not be addressed within the framework of a dispute for which the ERA had clear exclusive jurisdiction. Only in those cases, the majority suggested, would the tort exception be activated, thus permitting the plaintiff to bring proceedings through the ordinary courts. (See [129].)

In a separate decision, William Young J reached, essentially, the same conclusion as the majority: that the tort exception (or ‘carve-out’) does not affect the width of the examples of dispute (or ‘heads of jurisdiction’) for which the ERA has exclusive jurisdiction. (See [172].)

Less complication What does one make of the Supreme Court’s 04

Litigants have previously overcomplicated employment relationship disputes by bringing parallel claims through the courts

decision from a defamation standpoint? Sensible and practical. Litigants have previously overcomplicated employment relationship disputes by bringing parallel claims through the courts.

In the defamation context, the most noteworthy case in recent years is Opai v Attorney-General [2018] NZHC 2267. Melissa Jean Opai, a non-sworn employee of New Zealand police, sued the Attorney-General on the police’s behalf in respect of five statements said to be defamatory: a draft performance appraisal, an internal briefing paper, a report recording a complaint, some alleged slanders at a staff meeting and some entries in a diary of notes the plaintiff’s manager handed over to his successor. While the High Court proceeding ensued, Opai’s parallel claim before the ERA lay dormant.

At trial, Opai’s claim was resisted on numerous bases. The defence of qualified privilege proved unassailable.

Ironically, at an early stage of the proceeding, the defendant had sought to strike out the claim on the basis the dispute was within the exclusive jurisdiction of the ERA: Opai v Culpan [2015] NZHC 2010. The defendant had submitted the court should not be swayed by the plaintiff’s ‘dressing up’ of her employment relationship problems as defamation claims and urged the court to look at the substance of the claims as personal grievance claims. (See [14].)

However, while Associate Judge Hannah Sargisson recognised the pleading “duplicates in part complaints that lie at the heart of her personal grievance claim”, the application was dismissed.

With the benefit of the Supreme Court’s latest decision, it seems clear Opai’s defamation claim would now have been struck out at the outset.

Could any problems arise from the Supreme Court’s decision? From a defamation standpoint, one would think the few potential situations that might test the utility of the decision will far be outweighed by the clarity the decision brings to individuals weighing up their choice of forum, and those advising them.

On one view, it might be thought lay ERA members, confronted with defamation nuances and vagaries, might end up spending Friday evenings trying to square screeds of Gatley and Cheer with ERA

imperatives of simplicity, looser rules of evidence and speed of decision-making. Unlikely. If thorny legal issues arise, one expects they could be diverted to the Employment Court for determination. Indeed, the Employment Court has long been populated by judges well versed in defamation law, from the late Chief Judge Tom Goddard (father of current Court of Appeal judge David) to Judge Bruce Corkill QC. One problematic scenario might be where an employer defames, say, an employee and a third party over some work-related allegation – for example, an allegation that the employee corruptly awarded a tender to the third party with whom he or she had some prior personal relationship, and that the third party was complicit in this corruption.

If a multiplicity of actions were to be avoided, it would seem odd that the third party should find itself seeking justice before the ERA. In the Supreme Court, the majority observed of its approach (at [109]): If Parliament considers this position unsatisfactory, it will no doubt move to amend the legislation accordingly. William Young J suggests that one possibility is to provide for default assignment of employment-related disputes to the Authority, with a power to remove appropriate cases to other courts, tribunals or agencies. We endorse that suggestion.

Given recent reverberations about simplifying civil procedure, it would seem that unless there are some truly chaotic pieces of litigation in years to come, where non-parties to the employment relationship find themselves stuck within frameworks incongruous to their part in a dispute, Parliament is unlikely to legislate over the Supreme Court’s latest decision.

If anything, perhaps Parliament will move to give the Employment Court wider first-instance powers to resolve factual issues of tort in a workplace setting.

Ali Romanos is a barrister at Quayside Chambers.

He also runs Defamation Update, a free web resource on New Zealand defamation law ■

Sep 03 2021 Issue 30

Update from ADLS President

Marie Dyhrberg QC

Take time out during lockdown

Marie Dyhrberg QC

For some of us, level four lockdown has made little difference to our workload. While the courts are not functioning normally, justice is an essential service and priority matters can still be heard, albeit remotely.

Clients haven’t stopped calling; our work emails pile up.

But others have not been so fortunate. Covid-19 has hit their practices hard. Their phones have stopped ringing and emails have slowed to a trickle.

Trite as it may sound, we’ve all been there, even those who appear to be doing well. We know from experience that the law can be a rollercoaster ride. We all have our ups and downs, times when we can afford to pay for what we need and even reward ourselves. But there have also been times where we lie awake at night, worrying whether we will survive. We’ve all been through that.

Hard as it may seem, if you are in that situation and you are worrying about money, then now is the time to put on your favourite music and reflect. You might also want to explore ways of enhancing your business practices. Often, we’re too busy to take the time to look at business development and management and other aspects of our practice that everyone else seems to get done but we don’t because we’re so busy. You could use lockdown to find ways of boosting your productivity.

As lawyers, when we have free time, we tend to worry that the phone won’t ever ring, or nobody will instruct us again. Instead of fretting, why not think, ‘I’ll just take this time for myself’?

Grab that wonderful book, the kind of novel you might read on holiday or sit down, look out at your garden and turn up the music.

As lawyers, when Or arrange a Zoom chat with your friends or colleagues. Talk we have free time, through your worries and stay in touch with others. we tend to worry It’s about being strong enough to use your time for yourself because that goes against the grain. But putting some of these things into that the phone place will uplift our spirits. And hang onto the fact that we’ve been won’t ever ring, here before and we will get through this. or nobody will The worst thing you can do is shut yourself off or think that nobody wants to listen to your woes. In fact, people are kind and will see instruct us again what they can do to help or offer a listening ear. We are basically a very kind profession.

At the time of writing this, our daily case numbers are beginning to fall. But we can’t be complacent. While it’s distressing to hear of cancelled surgeries and the lack of MIQ facilities for returning New Zealanders, we must do whatever we can to get those case numbers down further and aim for elimination.

Stopping the movement of people in the courts is critical. We cannot expose them and those in prison to this deadly disease. We’ve seen what’s happening overseas and we must take heed of those examples and the devastation this new variant can bring about.

Hang in there. ■

05

ADLS COMMITTEE NEWS

Seventeen ADLS committees comprise volunteers who carry out a wide range of activities in their specialist areas

Family Law Committee

Parole Law Committee

The Family Law Committee has raised with the Family Court concerns arising from counsel being allocated a firm fixture and back-up fixtures for the same date.

We expressed a view, reflecting issues practitioners raised with us, that it was unfair to counsel and clients to have a lawyer required to prepare for primary and back-up fixtures for the same dates, on the basis that either one might proceed on the given dates.

We received a prompt response from Judge de Jong who has discussed the matter with Judge Fleming – the judge responsible for long cause hearing callovers.

Their view is that the present callover checklist enables counsel to advise the dates they are available and unavailable and it is for counsel, at the callover, to clearly express their position about being allocated a back-up fixture date on the same dates that they have a primary fixture, two back-up dates on Their view is that the present callover the same date or where any day or days are unworkable for them. checklist enables Judge de Jong noted that the counsel to advise standard checklist allows anyone involved in the hearing to rule out the dates they any date they are unavailable for are available and whatever reason. unavailable and The Family Law Committee wishes to bring this to the attention it is for counsel, of counsel but also notes that at the callover, to counsel’s obligations are first and clearly express their foremost to the court and then to position their clients. It follows that making oneself unavailable for any hearing dates should be done only with good reason.

If lawyers require assistance with interpreting this position, we suggest they contact a member of the Family Law Committee or take advice as to their obligations.

The ADLS Parole Law Committee is focusing on issues that are impacting prisoners and their access to justice. Recent projects include: ■ investigating how effectively the Department of Corrections and Parole Board are meeting their duties to prisoners and how that may affect their eligibility for parole; ■ sending multiple OIA requests to determine the state of parole in New Zealand; ■ delivering CPD seminars to further educate ADLS members on how to get involved in practising parole law; ■ working collaboratively with our Wellington counterparts to reflect that parole is a national issue; and ■ covering issues that impact prisoners after conviction to ensure their rights continue to be met.

The committee also wants to draw members’ attention to the Risk of ReConviction*Risk of Imprisonment (RoC*Rol) assessment tool used by the Department of Corrections to assess risk.

The RoC*Rol is a statistical algorithm used to predict the likelihood of a person committing new offences resulting in imprisonment within five years and, for those who have been sentenced to imprisonment, the likelihood of being imprisoned within five years after release.

The algorithm takes into account static variables to calculate the risk score, including social and demographic variables (eg, age and gender) and criminal history variables (eg, age of first offence, seriousness of previous offences and length of time between offences).

RoC*Rol was introduced by the Department of Corrections to assist in managing prisoners by frontline staff. It is also one of the factors considered by the Parole Board to help determine an offender’s risk.

Recently we have seen many offenders RoC*RoI score decrease. This is the result of a recalibration of the algorithm by analysists with the Department of Corrections using more recent criminal history data to improve accuracy.

This resulted in new RoC*RoI scores for offenders. Most offenders under corrections’ management (approximately 72%) remained in the same risk band of high, medium or low. For those whose score changes placed them in a different risk band, the predominant trend in the score change was a decrease in risk.

If you want to provide feedback to an ADLS committee, please email: committeefeedback@adls.org.nz

06

Sep 03 2021 Issue 30

HUMAN RIGHTS LAW/COVID-19

What are the limits of dissent?

If people choose not to be vaccinated and risk harming others, the government should intervene, explaining the risk the unvaccinated pose, apart from their potential self-harm

Alexander Gillespie

parliamentary sitting, on the advice of the DirectorGeneral of Health. Any such advice should have been given in conjunction with the Attorney-General, as it As New Zealand grapples to bring a Delta has significant constitutional consequences. outbreak under control and to accelerate the The Epidemic Response Committee was not vaccination rollout, social cohesion is vital for a resuscitated. Following a wave of criticism, the successful elimination strategy. government floated a Political consensus on virtual option. Opposition elimination has endured so Very few politicians parties rejected this, forcing far. Unlike the anti-mask are in Parliament and the government to recall a and anti-vaccination truncated Parliament with movements elsewhere, most smaller parties are staying enhanced social distancing New Zealanders continue away for health, not rules. to back the Prime Minister’s constitutional, reasons.

As a result, very few decision to place the country This is a poor example of politicians are in Parliament under the strictest lockdown. how our country should and smaller parties are But strains on public consensus are beginning to be governed in at a time of staying away for health, not show, with a less-than-ideal constitutional, reasons. This emergency.

Parliament, some pushback is a poor example of how our against lockdowns and country should be governed agitation to “open up”. at a time of emergency.

These debates will become more pressing as the government moves towards difficult discussions about Wider community an exit strategy and targets for vaccination rates.

Dealing with protests outside Parliament during this pandemic is equally difficult. The important point here Dissent within parliament is that people have rights, but these rights may be At the highest level, the country has been let down by subject to reasonable limits. all sides.

All New Zealanders have a right to peaceful assembly in public to protest, but this can be curtailed During last year’s nation-wide lockdown, the Prime by conditions of where, when and how. Fundamentally, Minister created the Epidemic Response Committee. nobody has a right to public protest in the middle of a It reflected a government confident enough to be national lockdown. questioned in public through a parliamentary body it Other rights, such as freedom of expression, remain did not control. The Opposition was constructive in intact, pandemic or not. However, this too is not finding the best ways forward. This was constitutional without limits. For example, advocacy is permissible governance at its best. in a speech about vaccination in a public space, but This time, all sides of the political spectrum have it cannot be misleading or factually incorrect. failed. It began with the decision to suspend the

The above examples generally relate to situations in which a minority group is trying to influence the majority view. But the debate gets more complex when the majority tries to make smaller groups do things they disagree with.

Harm to others Vaccination is likely to bring this issue to a head. The government has released a plan for a phased border opening, based on its elimination strategy. The plan would eventually allow vaccinated travellers from lowrisk countries to enter without quarantine.

This will be possible only once a high proportion of New Zealanders is vaccinated. Earlier modelling shows that, for the alpha variant of Covid-19, around 80%85% of the population would need to be vaccinated before New Zealand can relax border controls. For the more transmissible Delta strain, the source of New Zealand’s current outbreak, we would need to reach 97% of the population.

While Australia and other countries are now discussing how to adapt to an ongoing presence of Covid-19, accepting deaths and hospitalisations, New Zealand so far maintains elimination as a strategy “to stamp out the virus and keep our options open”.

Whatever vaccination target will be necessary, getting there from the current level of 21% of the population fully vaccinated will be a challenge. The government will likely need to use incentives and some degree of compulsion Free vaccinations, if delivered conveniently and safely as part of a targeted public health education campaign to overcome vaccine hesitancy, are an effective tool. Lowering the age for vaccinations will

Continued on page 13 07

Events Ponsonby lawyers’ lunch Hosted at Pane e Vino on Wednesday 11 August.

Thank you to MAS for sponsoring this event.

Joanna Pidgeon and Leigh Judd

Yolinda Freimond and Emily Ellis

Les Allen, Deven Sharma and David Johnston

Nick Williams and Michael Hemphill

Tenille Homes, Sarah Withell and Alex Sheehan

08

Bruce Murray, Lee Moreton (MAS) and Christopher Eggleston (ADLS Council member)

Sep 03 2021 Issue 30

Briefs

Featured events

Connecting New Zealand Lawyers

Deadline extended The Borrin Foundation has extended its deadline for individual funding, with the closing date now being 12pm on Friday 10 September. The foundation is accepting applications for the justice fellowship, travel and learning awards and a new Borrin Foundation/ Nga Pae o te Maramatanga post-graduate scholarship.

The total pool is $320,000.

Contact admin@borrinfoundation.nz with any questions.

New Plymouth sundowner Wednesday 29 September The Pepper Room, Millennium Hotel New Plymouth Waterfront 1 Egmont Street, New Plymouth Catering sponsored by MAS

Border wars

Learn More

Australian Attorney-General Michaelia Cash has warned state governments that their constitutional powers to shut borders will diminish once the nation hits an 80% vaccination rate. State premiers, particularly in Queensland and West Australia, with low Covid-19 infections are defending their right to lock out interstate arrivals, arguing they need to retain the option of closing their borders.

But Cash told The Australian that the legal arguments that led the High Court to block a bid by billionaire businessman Clive Palmer to tear down the West Australian border were shifting. A coalition of Australia’s largest employers is urging state governments to work together to ease restrictions once 70% to 80% of Australians are vaccinated.

Rotorua lawyers’ lunch Thursday 21 October Ambrosia Restaurant 1096 Tutanekai Street Rotorua Sponsored by MAS Learn More

Newly Suited meet the QCs evening Thursday 28 October Stanbeth House 28 Customs Street East Auckland

Open up

Learn More

Central Auckland express lunch Wednesday 10 November Glass Goose 78 Federal Street Auckland Sponsored by CoLegal

Learn More

Book Here

events@adls.org.nz

In a bid to avoid another Covid-19 recession, Australian Treasurer Josh Frydenberg is calling on state premiers to stick with the nation’s plan to re-open their borders once vaccination rates hit 80%. Figures released this week show the Australian economy grew by only 0.7% in the June quarter, compared with 1.8% in the previous quarter, and economists are forecasting a drop of at least 2% in the September quarter.

The Treasurer said the economy was resilient and would bounce back quickly once lockdowns ended. Eliminating the Delta variant was impossible, Frydenberg said. “That means rapidly vaccinating as many people as possible, bringing more supply online and then easing restrictions as we get to those targets.”

NSW premier Gladys Berejiklian says once the target is reached, she will begin lifting restrictions for vaccinated people but the Labor premiers of Queensland and Western Australia are pushing back on re-opening their borders, no matter how many of their citizens are vaccinated. The Queensland premier says border restrictions won’t be lifted until children are vaccinated while her Western Australian counterpart says his border with NSW and Victoria could be closed for months. n

adls.org.nz

09

FEATURED CPD

FINAL NOTICE

SCIENCE EXPERT EVIDENCE

Expert evidence on memory 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

FIND OUT MORE

FINAL NOTICE

Legal ethics and client care: a practical guide

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

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.

FIND OUT MORE

The Supreme Court’s Bathurst judgment CONTRACT INTERPRETATION ADMISSIBILITY

Webinar 1 CPD hr Monday 13 September 12pm – 1pm Presenter Gillian Coumbe QC, O’Connell Street barristers

Mine (or minefield?) of guidance on contract construction The Supreme Court’s highly anticipated 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. First, all members of the Court have now agreed 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 10

Sep 03 2021 Issue 30

adls.org.nz/cpd

Cybersecurity: a guide for law firms RISK PLAN MANAGE

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

cpd@adls.org.nz

09 303 5278

“It takes 20 years to build a reputation and few minutes of cyber-incident to ruin it” – Stephane Nappo.

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.

FIND OUT MORE

Unit titles: dealing with complexity COMPLEXITY GOVERNANCE DEVELOPMENTS

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

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.

FIND OUT MORE

Limitation: a map for the minefield

Webinar 1.25 CPD hrs Tuesday 26 October 1pm – 2.15pm Presenters Philippa Fee, partner, Fee Langstone and Tim Rainey, barrister, FortyEight Shortland

CLAIMS ISSUES DEVELOPMENTS

The Limitation Act 2010 was enacted to rationalise the law on the limitation periods applying to claims. This included overdue reform of the time available for a claimant to bring a claim where they have “late notice” and the imposition of a 15-year long-stop limitation period. The purpose of this webinar is to provide a map for that minefield: discussing the key aspects of limitation law from the Limitation Act and elsewhere which can trip up even the most seasoned litigators.

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

This seminar reviews the remedies available for breach of an agent’s mandate, including in actions for money had and received, an account at equity (for breach of trust), and damages (in contract and tort); and discusses the conceptual basis of licence fee damages and the circumstances in which it is likely to be available in breach of contract claims.

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 a range of professional responsibility 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 Tuesday 9 November 4pm - 6pm 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

Sep 03 2021 Issue 30

also lift the overall percentage of uptake. If all else fails, even cash incentives may help to increase voluntary vaccination.

But compulsion might become necessary. While the general rule is that people can refuse medical treatments, in times of emergency this can be trumped and regulations could be introduced to enforce vaccination. This is where we must be careful.

The temptation will be to use compulsion or heavyhanded pressure (such as restricting social welfare) against those who choose not to get vaccinated.

So far, the government has only introduced law to make it mandatory that certain workers, such as those at the border, are vaccinated. This is done to reduce the risk to others, and it is the correct measure to use.

If people choose not to be vaccinated and risk harming others, the government should intervene, explaining the risk the unvaccinated pose, apart from their potential self-harm. It should then pass laws to allow reasonable levels of discrimination against people who refuse the vaccine.

This means if a risk of harm to others can

Photo: Lynn Griereson – Newsroom / Contributor / Getty Images

Continued from page 07

be shown, it may become acceptable to stop unvaccinated people from entering restaurants, but not from buying food from a supermarket (although strict safety measures may be insisted upon).

Conversely, if an unvaccinated person risks harming only themselves, the government should let them

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.

carry the full consequences of their choice. ■ Alexander Gillespie is a Professor of Law at Waikato University ■ The above was first published by The Conversation and is reprinted with permission

Law Firm Ownership Opportunity An affordable opportunity for an entrepreneurial lawyer to purchase their own practice. Ideally suited to a young lawyer after a different pace and flexibility, ready to step out on their own, but with an existing client base and law firm structure, without the hassle of starting from scratch.

The current sole practitioner of this virtual/home [Auckland] based law firm wishes to exit for family reasons. They make a good return from minimal hours work. Continue as is for great work/life balance or use it as a base to grow from. The current director could stay connected to the firm as required.

Areas of practice include property, commercial and general practice.

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

Please email expressions of interest to: lawfirmadvertiser@gmail.com

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

Barrister Wanted

■

■

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

A centrally located Chambers has a vacancy for a barrister to share resources with 6 other collegial barristers.

Handily situated in an historic building in Vulcan Lane, you are steps away from major transport links and restaurants and in close proximity to the courts & many of New Zealand’s corporate offices.

As well as a spacious office, other facilities include: a Boardroom, library, kitchen, shower and access to all technology. An onsite Office Manager is also available.

Very reasonable rates are on offer to the right candidate.

All enquiries to eden@vulcanbuilding.co.nz

13

./ i8

R. BRUCE STEWART QC

Having practised as a senior QC in the New Zealand courts, I am now modifying my practice to providing advice and guidance as to litigation strategy.

Maria Dew QC joins Britomart Chambers

I will provide advice on what to consider as you navigate the legal system and assist you in determining the best strategic and practical course of action to achieve your desired outcome in the following areas:

Britomart Chambers is delighted to announce that Maria Dew QC joins the chambers from September 2021.

Maria joins Michael Heron QC, Marc Corlett QC, Paul Rishworth QC, Erin McGill, Nick Williams and Charlotte Agnew-Harrington. Josh Hansen, employed barrister, also joins the chambers with Maria.

• •

Britomart Chambers’ new premises are at Level 15/152 Quay Street, Auckland CBD and at www.britomartchambers.nz. You can continue to reach Maria at maria@mariadew.co.nz or josh@mariadew.co.nz.

•

•

The economics of litigation Strategic decisions for plaintiffs before issuing proceedings Strategic decisions for defendants once proceedings have been issued Strategic decisions for both parties to reach a resolution and the alternative avenues. For example, mediation, arbitration etc.

Please contact me: Email: rbstewart@xtra.co.nz Phone: (09) 3022060 or +64 21 927 553

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

14

E cpd@adls.org.nz

W adls.org.nz/cpd

Sep 03 2021 Issue 30

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

Evidence Law Update for Civil and Criminal Lawyers Thursday 21 October | 4.00pm - 6.15pm Presenters: Scott Optican, Associate Professor, University of Auckland; Jack Oliver-Hood, Barrister and Lecturer, University of Auckland This seminar will focus on the current application of key sections of the Evidence Act 2006 in both the civil and criminal law jurisdictions.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

15