THIS WEEK’S ARTICLES
Issue 41 20 Nov 2020
Big changes afoot for our district courts p1
Should I take an in-house legal job? P3
Profile: Chris Gallavin, law professor and poet pages 6 & 7
LawNews adls.org.nz
THE COURTS
Major shake-up looming for our district court By Jenni McManus
When he was appointed Chief District Court Judge in September 2019, Heemi Taumaunu said he was intent on delivering transformative change to the justice system.
Chief Judge Taumaunu himself might balk at the ‘radical’ description. “I emphasise that none of the concepts and approaches encapsulated in the Te Ao Mārama model is radical,” he told attendees at the annual Norris Ward McKinnon lecture. “The many components have already been trialled in various forms in specialist solutions-focused courts over many years and they have been found to be both effective and fair. And they have not required legislative change. Moreover, the model is not intended to substitute for, but should enhance, lawful and principled sentencing outcomes.” But, as the chief judge also acknowledges, the plan – implementing therapeutic and individualised justice, with its emphasis on the root causes of offending, across the entire district court system – will require a major shift in the way defendants, victims, whanau and the judiciary relate to each other and to “the system”. Starting in Hamilton at the beginning of next year with the expansion of the Alcohol and Other Drug Treatment (AODT) court into the Waikato, the principles and best practice from these specialist and therapeutic courts will be gradually mainstreamed. But unlike Auckland and Waitakere, where the
Photo by David Hallett/Getty Images
A year later, he has made a major step in this direction. In a speech in Hamilton last week, Chief Judge Taumaunu outlined a vision he calls Te Ao Mārama (“the world of light”) and a framework which is set to radically change the operation of our district courts, where 95% of New Zealand’s justice is dispensed by 172 judges, 30 acting judges and 18 community magistrates.
High rates of incarceration don’t necessarily make for safer communities
If you don’t understand the jargon and terminology, how does that make you feel about participating in the process? AODT courts operated as pilots from 2012 until the end of last year when they were made permanent, the Hamilton AODT court will have a separate Family Court ‘care and protection’ stream in addition to its criminal jurisdiction. This will be focused on young mothers with addiction and dependency issues. Chief Judge Taumaunu says it’s a child-centred approach that should “enable mothers to retain care of their children, with the wraparound support
that is required to ensure this is plausible. “The sad fact is that many of the children who come to the state’s attention do so in the Family Court first. There is more than enough evidence that children who end up in state care go on to have vastly higher incarceration rates. Yet children and young people living with parents who are addicts are vulnerable to falling on to the wrong side of the law, as well as harm and neglect. The expansion of the AODT court into Care and Protection offers a two-pronged approach to this conundrum by opening a new path for early and better-tailored intervention for mothers and their children.” It’s a controversial issue, which erupted in full media glare last year when Oranga Tamariki, armed with a custody order and citing ‘safety concerns’, attempted to uplift a newborn from Hawke’s Bay Hospital. The uplift came amid mounting public Continued on page 2
THE COURTS
Major shake-up looming for our district court
Chief District Court Judge Heemi Taumaunu
Chief Justice Dame Helen Winkelmann
Principal Family Court Judge Jacquelyn Moran
Continued from page 1
and harm to babies and children, she says.
complainants, witnesses and whanau was that their experience of the district court left them feeling unheard, unseen, misunderstood and unappreciated, he said.
anger at the way the ministry removed babies, predominantly from Māori families, it deemed to be at risk. The stand-off in Hastings, attended by the police, resulted in Oranga Tamariki reviewing its processes and acknowledging that, in this case, there were shortcomings. The two Hamilton streams – criminal and family – will run on “separate and discrete tracks”, Chief Judge Taumaunu says. And defendants will continue to be responsible and accountable under the Sentencing Act 2002. Procedural fairness will be a strong focus for the Te Ao Mārama model to ensure all court users understand what’s happening and leave feeling heard and understood. “This includes adopting plain language and cultural processes that incorporate tikanga and te ao Māori,” the chief judge said. “The specialist courts have shown us how to do it. It is the right thing to do for everyone affected by the business of New Zealand’s biggest court.” Judicial support The move is backed by Jacquelyn Moran, the Principal Family Court Judge, who hails it as a milestone for the court she oversees. Creating a dedicated alcohol and other drug dependency stream within the Family Court promises to address a major underlying driver of serious risk
“The provision of a treatment option for mothers whose dependency issues have led to the removal of children, or threatened removal, is a big step forward for the Family Court. It gives mothers the opportunity to access tailored programs led by experts and monitored by specialist judges. It offers hope for recovery, strengthened by the incentive to reunite mothers and children and restore whanau.” Judge Moran says details will be designed in the spirit of partnership with the local iwi and alongside the community. Common themes In an interview with LawNews on 18 October 2019, the newly-appointed chief judge gave a hint of what might be expected under his watch. Read more here. In particular, Chief Judge Taumaunu indicated he wanted to learn from the way our therapeutic courts were run and see where that led him.
His vision for the district court is a place where all people can seek justice, regardless of their means or abilities and regardless of who they are or where they come from. “This is an indirect reference to unconscious bias,” he said, “and it’s intended to make it clear that this vision is speaking to everyone in Aoteoroa. It doesn’t matter what your ethnic origin is or what neighbourhood you come from. It doesn’t matter who your family is. It doesn’t matter if you are rich or poor and it shouldn’t matter whether you have your full capacity in terms of cognitive ability. You should still be able to come to our court and seek justice.”
Members of the profession, Chief Justice Dame Helen Winkelmann and a large contingent of district court judges got a preview (but no detail) of where the court was headed at a dinner hosted by ADLS for Chief Judge Taumaunu at Auckland’s Northern Club earlier this month.
For more than 30 years, reports calling for transformative change have been piling up, he said, including seminal studies from the likes of John Rangihua, Dr Moana Jackson and former Supreme Court judge Sir Clinton Roper. All criticised the
A common complaint from defendants,
Continued on page 4
LawNews
Editor: Jenni McManus
LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus, phone 021 971 598 or email jenni.mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney, phone 021 936 858 or email Darrell.Denney@adls.org.nz
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That “common and consistent theme” had been coming through for the past 35 years. “We’ve done what we can incrementally, but we still have work to do.”
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 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.
©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.
LawNews Issue 41 | 20 Nov 2020
NEWLY-SUITED COMMITTEE
In-house work a viable option for restless juniors QUESTION
managing a private practice.
Dear Newly Suited I’ve been working for a couple of years at my firm. The work is enjoyable but I don’t know if I want to stay in private practice for the rest of my career.
Work-life balance Another benefit of in-house work is that it can offer more sensible working hours than private practice. Of course, few jobs are completely immune from tight deadlines, busy periods or stress, and both government and private sector in-house lawyers will need to deal with these from time to time.
As luck would have it, one of our major clients is advertising a position in its in-house legal team. I have a good chance of getting the role if I apply and the remuneration is better than my current job. However, I’m not sure what to expect and wonder if it’s better to play it safe and stick with my current role. What should I do? Regards, #TimeForAChange?
ANSWER Dear #TimeForAChange? Big career moves are never easy and the jump from private practice to in-house work is certainly no exception. To help with your decision, we’ve set out what we think are some of the most significant considerations to bear in mind when considering a move in-house. Remuneration and future opportunities Many practitioners cite better pay as one of the biggest draws of in-house work. Corporates can offer higher salaries than even the largest firms. Likewise, salaries for government in-house roles are typically higher than small or medium firms and are overtaken only by larger firms at intermediate and senior levels of PQE. But we also suggest you consider that in-house roles don’t always offer the same partnership or equity opportunities for senior lawyers as in private practice (which may or may not be important to you down the line). Not every practitioner aspires to partnership and many respected senior lawyers have achieved their career and remuneration goals while avoiding the stress and workload that comes with
But you are more likely to clock-off at 5pm when working in-house. Government bodies and a growing number of companies also have established time-off-in-lieu arrangements, where overtime work is compensated with an equal amount of paid leave. When better working hours are considered alongside other benefits, such as the lack of time recording and budgetary concerns, it’s clear that in-house roles can often hold significant advantages over private practice when it comes to a work-life balance. Scope of work The role and scope of in-house versus private practice can differ significantly. It depends on the industry, but the scope of work is typically broader with in-house work than in private practice. In-house teams are usually the first port of call for a company or government department’s legal queries and many in-house lawyers are expected to act as generalists, providing immediate answers to a wide variety of legal questions. These can range across several practice areas, including dispute resolution, contract, employment and regulatory work, to name just a few. That said, in-house practice can also help you to gain industry-specific knowledge that would otherwise be difficult to obtain in private practice. Private practice by comparison tends to be siloed into individual practice areas, where teams are provided (often but not always) a comparatively narrow range of problems from a wide range of clients.
The usual assumption here is that private teams are more specialised in their areas of practice and better resourced to see these matters all the way through to their conclusion. Secondments and returning to private practice It’s worthwhile remembering that a decision to move in-house, especially as a junior practitioner, is not necessarily permanent, and the knowledge and connections you gain from working closely with an industry or government body can set you in good stead if you eventually choose to return to private practice. This is especially true with certain practice areas (insurance and regulatory work are examples which come to mind) where in-house experience can be extremely useful. The decision to move in-house, or not, is ultimately up to you. If you’re on the fence but still curious about what in-house work has to offer, we would suggest exploring the possibility of a secondment. Many firms value, and can arrange, secondments for junior staff with their major clients. These can provide valuable insights into in-house work without requiring you to commit to a new role. If a secondment is not possible, we would also suggest speaking to friends or colleagues about their own experiences. Finally, we suggest you consider your shortand long-term career goals and how other considerations like work-life balance might be impacted. What do you enjoy most about practising law? Is it being a specialist with the ability to research and find answers to difficult legal questions? Perhaps you see yourself as a jack-of-all-trades, able to solve a wide variety of problems for your team and stakeholders. These are far from the only answers and deciding what you value most in the profession is a valuable exercise when considering a move like this – or indeed any major career decision.
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It combines an explanation of the law, case studies and practical guidance for health and legal practitioners about capacity, how it is assessed and what supporting people with impaired capacity means in practice. Price for non-members: $50.00 plus GST* Price for ADLS members: $45.00 plus GST*
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Continued from pages 1, 2 way the court system worked, and their reports were packed with ideas about how to fix it. Many report-writers complained that punishment was emphasised at the expense of rehabilitation, arguing that this did not necessarily make communities safer.
Activist approach The chief judge’s moves align with the thinking of Chief Justice Winkelmann who, in a series of speeches since she was appointed in March last year, has spoken of the need for change in the district court.
As of June 2020, New Zealand’s total prison muster was 9,469. Of these, 4,952 (52%) were Māori, although Māori comprise only 17% of the total population.
It has largely become a debt-collecting agency, she said – in part because the cost of litigation is so high, meaning access to justice is now a major issue.
“The underlying message is that our courts are failing to understand or protect those who appear before them or those who are affected by the business of the courts,” Chief Judge Taumaunu said. “In essence, defendants and whanau are leaving the current system feeling unheard and unappreciated. This is most pronounced in the criminal justice system.” Not only should people leave the court feeling they had been heard and understood but it should also be recognised that they come from different starting points. Legal and courtroom jargon exacerbated the problem. “If you don’t understand the jargon and terminology, how does that make you feel about participating in the process? We need to be conscious of the unintended impression that can be gained by people we are serving – and that can be simply that the system is talking to the system.”
Chief Justice Winkelmann has also spoken of the need for diversity in the judiciary and the need for an activist approach to ensure this happens. Without it, she says public confidence in the judiciary could be eroded if judges were not seen as representative of the communities in which they worked. Diversity was needed in four areas, she said: gender, ethnicity, socio-economic background and work experience. Read more. Overall, a rethink is needed about how to build relationships between the courts and the community and a core element is the need for more diversity in the judicial approach. “It is a troubling reality that an overwhelmingly Pākehā judiciary deals with predominantly Māori defendants,” Chief Justice Winkelmann said. The judiciary also needed to address the growing
How the Te Ao Mārama model will work Key features:
Focus on the social, psychological, emotional and physical underlying causes of crime
Referral pathways for tailored rehabilitation or treatment
Wider community, iwi and stakeholder involvement in court Heightened interagency coordination Use of plain language in court
Kaupapa Māori approach in the mainstream
Exploring new Kaitakawaenga (coordinator) role between the courts, participants and services
Greater use of cultural speakers through s27 of the Sentencing Act
awareness that “we’re imprisoning people whose problems aren’t likely to be solved by time spent in prison”. Judicial education was the other part of the equation, she said. “Knowledge of tikanga Māori, or Māori customary law, is essential knowledge for judges in New Zealand.”
Retirement Dinner for Bob Eades Friday 12 February 2021 | 6.30 pm The Northern Club, Auckland ADLS warmly invites members of the legal profession to come together to honour Bob Eades, at a dinner to celebrate his remarkable 69 years in the law Beverage reception from 6.30 pm followed by a three course dinner and an introduction from Dame Judith Potter DNZM CBE Register here or contact ADLS Events
T 09 978 3970
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E events@adls.org.nz
W adls.org.nz
UNEWS
A
LawNews Issue 41 | 20 Nov 2020
£ Auckland District Law Society - Issue No. 36 122 September 2006
+ SPECIAL EDITION
TRUST LAW
Why the use of trusts has declined in the UK By Anthony Grant
New Zealand lawyers tend to be insular in their knowledge of trusts and it can be helpful to consider them in an international context. I wrote recently about the popularity of trusts in Australia and in this note I give some information about the lack of popularity of trusts in the UK. Trusts are invariably popular in a favourable tax environment and less popular when the tax environment is hostile. The popularity of trusts in the UK took a major hit in 2006 when Gordon Brown, the Chancellor of the Exchequer, announced regulatory changes designed to stop trusts from being used to shelter wealth from inheritance tax. The laws the British Labour government enacted meant most assets transferred into trusts after that time became subject to an immediate 20% charge for inheritance tax. In addition, there was a 6% charge every 10 years after that. A further charge of up to 6% is levied when assets are taken out of a trust. The popularity of trusts has fallen as a result of another development: a requirement for trusts to be listed on a public register. This took place in 2017 and has been expanded quite significantly this year.
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President of Auckland District Law Society, Gary Gotlieb (centre) with more than 30 members of the profession who are still in practice after fifty or more years and who attended an ADLS celebratory dinner in their honour at the Hyatt Regency Hotel.
Auckland barrister and former ADLS President Gary Gotlieb is helping to organise a 50-year reunion of lawyers who graduated from the University of Auckland and were admitted to the bar around 1970. ..#.....#.../.--:I'll././....Il.'*#.Ill.*-Il....I...-I.-I-....#%-*.*-%'.=.-I..;=-#.-&.--..-.-..&--<**-'-li-I-..-*1-I-'-'-.*I'*&-&-=I<I'-.*-I-*#I
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THIS IssuE: Tales from 'the last generation of under-educated lawyers' - Page 3
A similar function was held in 2006, when Gotlieb was president, and the above + Magic moments from thirty lifetimes in the legal profession - Page 5 photo was published in LawNews on 22 September of that year after a dinner at the Hyatt Regency hotel. This time, the function will be a lunch at the Northern Club just before Christmas. While border restrictions mean lawyers who’re now living and practising overseas will struggle to attend, Gotlieb is expecting a good turnout, including former law teachers Bernard Brown and Ken Palmer. “It’s a reunion for everyone to bring back the good old days,” he says. “We’ll be meeting people we haven’t seen for years.” Registration details are below
Most settlors prefer secrecy rather than publicity for their trusts. These negative developments mean the number of trusts filing tax returns in the UK has been reducing for the past five years. The recent decline is not great: 151,000 trusts submitted tax returns in the 2018-2019 tax year which was a reduction of 3,500 from the previous year. The fact that 151,000 trusts submitted tax returns in such a hostile trust environment can be seen as a vote in favour of trusts by a large number of people. It signifies that despite all the hostility, they can’t find an acceptable alternative. Anthony Grant is an Auckland barrister specialising in trusts and estates
PLEASE JOIN US FOR A LUNCH TO CELEBRATE
years OF ADMISSION TO THE BAR
SOUTH AUCKLAND LAW PRACTICE FOR SALE A highly profitable boutique law practice with a large and longstanding client base offers the potential for both lifestyle and success for a general practitioner. Situated in the South Auckland area, this is a unique opportunity to walk into a solid and ever-expanding profitable base of private and small to medium business clients. The practice has a substantial conveyancing, commercial, trusts and estates clientele with room to expand into civil litigation and family law. The possibilities are endless for an ambitious general practitioner. Very flexible arrangements are available for transition to the new ownership.
When 12.00pm, Friday 18 December 2020 Venue The Wintergarden Northern Club 19 Princes Street Auckland Payment details $150pp – Partners welcome Please make payment to 06-0101-0011219-00, Reference: 201024942 RSVP to ross.patterson@minterellison.co.nz
Expressions of interest c/- Matthew Pasley, Keegan Alexander, Lawyers Auckland, mpasley@keegan.co.nz
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PROFILE
Professor Chris Gallavin: ‘systemic racism’ is our most pressing issue By Rod Vaughan
Take a look at Massey law professor Chris Gallavin’s CV and it’s easy to conclude he’s had a charmed life. After getting first-class honours in law at Canterbury University, he went on to gain a PhD in the UK before returning to his alma mater and, at the tender age of 39, becoming the youngest Dean of Law in the country. According to his LinkedIn profile, he’s now a law professor and Deputy Pro Vice-Chancellor at Massey University. And a performing poet. Along the way he also became a high-profile media commentator, offering his erudite opinions on all manner of legal issues, not to mention presenting television documentaries on controversial criminal cases. Combine this with an engaging personality and a gift for communicating complex legal issues in language that ordinary folk can understand, and you have someone at the top of his game. As such, it’s easy to assume he’s the product of a privileged upbringing, nurtured by the best education that money can buy.
Professor Chris Gallavin
But on that score – and many others – it would be a completely erroneous assumption and a long way from the truth. Gallavin’s back-story is an extraordinary tale of triumph over adversity where he overcame seemingly insurmountable odds to reach the pinnacle of his chosen career. One of eight children, he was brought up in Blenheim by his mother who relied on the domestic purposes benefit to feed, clothe and house them. He was 19 before he met his father for the first time and it was only a brief encounter. Of Irish Catholic ancestry, Gallavin’s mother was a fiercely independent and strong-willed person with a highly developed sense of social justice. “My mother had a tremendous spirit – more like an internal anger that drove her,” he says. “Her anger was at injustice that she saw all around her. I suspect she saw her life as a series of injustices. I also suspect that as a woman and uneducated – she left school at 10 – her thoughts and opinions were often sidelined by others in her life. She was also a young woman in the 50s, not an environment conducive to her being listened to.”
degree at Canterbury University. “That was a big move for me,” he says. “I was 24 and had never achieved at school and so taking on a law degree was very daunting. Other than the lawyers I had met whilst working at the courthouse, and our family doctor, I didn’t know anyone who had been to university. I was the first in my family – probably even my extended family – to do so. I had no idea whether I was going to succeed or not, but I knew that was what I wanted to do.” Despite nagging doubts, Gallavin soon discovered he had made the right decision. “When I went to law school, almost from the first day I found my passion. I knew I wanted to make a difference in the lives of people in my community. I also had a strong personal drive and early on I knew I wanted to do a PhD.” At law school he threw himself into almost everything on offer, working in the law library, volunteering at the community law centre, tutoring and joining every club he could.
Gallavin says she spent a significant part of her life as a wife and mother living at Molesworth, the remote high-country station in Marlborough. It was a challenging way of life with no electricity and horses were the only form of transport.
“I loved the intellectual side of complex arguments and really developed a thirst for knowledge. Although I’d go years between contacting my family, I remember once ringing my mother after my first year and saying to her that ‘these people are not like us mum’.
“I think that an intolerance for injustice is the strongest trait that I have inherited from my mother,” he says. “I hate seeing people done over in any way and go out of my way to stand up and be counted where I can. That has sometimes put me in hot water and in my younger years I suppose I might have been a bit abrasive – quite anti-establishment.”
“I’d never been around professionals or children of professionals. It made me realise how big the world was and how rich it was in terms of infinite streams of knowledge. I wanted to know as much as I could. Academia was therefore really enticing.”
From an early age Gallavin seemed destined to follow in the footsteps of his brothers, most of whom left school at 15 and went into the trades. At Marlborough College he showed little promise academically, staying on until the end of year 13 “merely to eat my lunch and stay out of fights. ‘Could do better’ was a glowing endorsement on my school reports. “I had a rather eclectic childhood – a tap dancer from 5, Goth by 14, surfer by 17. When I left school, I worked fulltime at the place I had worked after school for two years – Farm Machinery and Repairs.” But then opportunity came knocking at his door. In 1992 he was offered a clerk’s position at the Blenheim District and High Court as a result of undertaking work experience there while at school. For six years Gallavin learnt the ropes, then moved to Christchurch and began a law 6
But what led him down the academic path rather than the cut-and-thrust of a career in the courtroom as a criminal lawyer? It’s a question Gallavin sometimes ponders. “I’m not sure why that is. In part it was due to my years working at the Blenheim court, although in a very different role to the lawyers. I suppose I felt that I had been at the coalface and so I wanted to develop my own individual niche. “When I started on the PhD, that cemented a different track for me. Before too long I also realised that my PhD training, and lecturing I did in England as part of my PhD scholarship, meant I was not developing the skills to be a courtroom advocate. I couldn’t do that job now.” In fact, Gallavin even refuses to describe himself as a lawyer despite his impressive legal qualifications and authorship of legal books and journals. Continued on page 7
LawNews Issue 41 | 20 Nov 2020
Continued from page 6 “I try and do my little part to enlighten people as to the real role and work of lawyers. As a society, we owe lawyers a huge debt of gratitude. I am also careful not to describe myself as a lawyer. I’m not. I’m an academic, perhaps ‘public intellectual’ if I want to sound important, and now I am a senior tertiary manager. I don’t want to paint myself as something that I am not.” He believes courtroom lawyers, the criminal bar in particular, undertake one of the most demanding jobs in the world. “Dealing with the difficult and quite frankly depressing cases they do, day in and day out, means their role is one of the least glamorous around. In other words, it is anything but what most of the public think.” Which explains why he is a staunch defender of controversial criminal lawyers like the late Greg King, who have been on the receiving end of much public vitriol for defending those accused of heinous crimes. Gallavin fronted a recent television docudrama which examined King’s role in defending Ewen Macdonald who was found not guilty of murdering his brother-in-law Scott Guy, a verdict that provoked heated public debate.
National Party leader and Reserve Bank governor Don Brash from speaking on the campus. It placed him in the extremely invidious position of publicly questioning the judgment of his boss, something that in most circumstances would be a career-limiting move with serious consequences. But despite such considerations, he stuck to his guns and politely took her to task. “I immediately contacted her and said, ‘Jan, I have to comment on this because my phone’s running off the hook from the media and I can’t not say anything.’ In the event, she was very supportive, and I still get on with her really well and enjoy good terms with Massey. “But other organisations may have seen it differently. Being more risk-averse, they wouldn’t want senior management taking conscience or principled positions. So, I have no regrets about saying what I did but I am mindful of the potential consequences if it had happened in any other organisation.” That said, Gallavin does not subscribe to the centuries-old principle of unadulterated free speech.
“The Greg King documentary was very important to me. I look up to Greg and his memory. He is a role model to me. He wasn’t perfect and in fact he had significant and fundamental flaws, but he was human and understood the human condition.
“We have contemporary obligations in the 21st century that we ought to be mindful of and I am no Justice Scalia. But I also don’t subscribe to a ‘there are a number of conversations that we cannot have’ approach.
“No one has a monopoly on moral superiority and so when I hear people bagging criminal lawyers, I point out the integrity of people such as Greg and many other barristers I know.
“We need to find a way for our community to disagree well. Agreeing would be nice but is not always or often going to happen so disagreeing well is, I believe, the most profitable way forward to avoid ever-increasing polarisation.
“These are not perfect people, but they are people trying to make a difference and to advance fairness and justice. I’ll stand up for them any day over those who would seek to generalise and malign.”
“The question for me is how do we have conversations that ultimately increase the quotient of social trust and cohesion rather than dislocation and aggression. When I look at hate speech, I sometimes think those advocating much tighter reins fundamentally overplay the ability of the law to regulate human behaviour.
But what of the integrity of New Zealand’s justice system? As someone who helped establish the New Zealand Public Interest Project in 2015 to examine miscarriages of justice, is Gallavin concerned about flaws in the legal process that sometimes result in innocent people being convicted of serious crimes? “Of course there are flaws in the legal process,” he says. “The system is manmade; it will always have flaws. The flaw is us, we humans. So, do the police sometimes act with blinkers to ‘get their man’? Of course they do, they are human. But we must not forget and be very proud of the fact we have a damn fine police force. “Do our rules and principles of justice and substantive and procedural law sometimes struggle to deal fairly with some cases? Of course they do – they are made by human hand. “So, I strive to deal with both isolated and systemic issues as they come to our attention but contend we should not be surprised that they exist. The public, I think, often has too high an expectation from our system – that it will provide divine justice as if handed down on tablets of stone.” Gallavin believes the most pressing issue in the criminal justice system at present is systemic racism. “My concern is how we even talk about this in a way that does not instantly cause further offence and polarisation, both of which get in the way of finding solutions. “Even using the word ‘racism’ is so loaded and gets in the way of profitable and important conversations and for that reason I tend not to use it. If we could all at least identify our own baggage that we bring to issues then that would be a good start to having open, frank and honest conversations. Unfortunately, modern media and social media in particular do not allow for the acknowledging of human frailty. “But I believe until we acknowledge our faults and weaknesses, we will never really have the authentic conversations needed to resolve our collective issues and that includes our issues with the law.” Yet another area of concern is the deeply polarised debate about hate speech and calls for a tightening of New Zealand’s freedom of speech legislation. It’s an issue close to Gallavin’s heart, given that he called out his own ViceChancellor, Jan Thomas, at Massey University over her decision to ban former
“If one is relying on the law to keep the peace then I think we have likely lost the battle.” Looking ahead, Gallavin believes the future of the legal profession is in good hands, observing that while the calibre of students entering law schools is outstanding, the same can’t be said of tertiary education in general. “Most of us would not be interested in driving a 1980s car, but we seem happy with a fundamentally unchanged legal education system from well before the 1980s. “I am incredibly proud of the standard of law schools in New Zealand but tertiary education in general needs a kick up the pants. It is in danger of being surpassed by the nature of the challenges we face. That is a terrifying prospect as I believe higher education to be the key to the development of new world paradigms. “If higher education doesn’t lead the way, then there is no hope for large-scale, systematic and sustainable change in the architecture of our society. With Covid-19, a revolution in higher education is upon us. I hope New Zealand can lead the way in this area as it has in so many others.” Away from academia Gallavin’s big passion in life, apart from his wife Cade and three young daughters, is poetry. “I don’t merely have an interest in poetry; it is absolutely fundamental to who I am,” he says. “I know a few hundred poems, mostly New Zealand poetry, off the top of my head, who wrote them, what New Zealand was like when they were written and the light they shine on who we are as a people. “I am not tangata whenua and so poetry is to me what oral story-telling is to Māori. I perform at pubs and wine bars, festivals and have a fish ‘n’ chip shop poetry tour of New Zealand coming up in the new year as well as a woolshed tour with a couple of mates under the name ‘The Rouseabouts.’ Also in the pipeline is Gallavin’s first book on poetry entitled A Dance Together which is due to be published before Christmas. He says he would jump at the chance of becoming a full-time performing poet. But given the vagaries of such a nomadic lifestyle, he might find his day job to be a more prudent option. 7
To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278
Featured CPD Preparing Client-Focused Opinions — FINAL NOTICE
Webinar
Preparing an opinion is an essential part of being a lawyer, but doing it well is another matter. This webinar will provide practical insights on how to deliver a client-focused opinion – ensuring you provide effective advice and maximise client service. It is aimed at anyone at junior to intermediate level, including in-house counsel, who is required to write opinions. Those more senior might find it useful as a refresher.
CPD 1 hr
Learning outcomes: • • • •
Refresh your knowledge on the fundamentals of an opinion. Gain insights into how to provide practical rather than academic opinions. Benefit from practical advice and tips on how to prepare, write and structure opinions. Learn about common traps that frustrate clients.
Confronting the Workplace Bully: Psychology & Law — FINAL NOTICE This webinar is offered free of charge for members. Are you the subject of bullying and/or harassment in the legal workplace? Do you know someone who is, and would like to offer your support? Or are you simply interested to know more about how to deal with bullying and harassment from a psychological, legal, and regulatory perspective? This webinar will equip attendees with strategies to deal with and support victims of bullying and harassment in the legal profession.
Learning outcomes: • • • • • • • • • •
Understand what bullying and harassment is from a psychological and legal perspective. Learn about ways to manage and deal with bullying and harassment. Learn how to have difficult conversations about bullying and harassment. Learn more about how you can support victims of bullying and harassment. Receive guidance on the mechanics of the legal complaints process. Understand the protected disclosure regime and how it is intended to work. Understand the mandatory reporting rules and requirements, and the distinction between regulated and unregulated behaviour. Understand when behaviour becomes the subject of legal professional discipline. Become aware of the conduct that could result in a lawyer being declared “unfit to practise”. Understand what the proposed changes to the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 will mean for lawyers at the receiving end of inappropriate behaviour.
Civil Appeals: Being Effective in a Civil Appeal — FINAL NOTICE In Person | Live Stream Covering crucial core content and the latest procedural and case law developments, this seminar will provide a roadmap for lawyers involved in bringing and arguing Civil appeals.
Tue, 24 Nov 1pm – 2pm
Presenters Siobhan Cervin, Barrister, Mills Lane Chambers Rachel O’Brien, Head of Privacy & Data Ethics, BNZ
Webinar CPD 1 hr
Wed, 25 Nov 12pm – 1pm
Presenters Sara Chatwin, Psychologist, MindWorks Paul Collins, Barrister, Shortland Chambers
Seminar
Livestream
CPD 2 hrs
Learning outcomes:
Thu, 26 Nov
• • • • • • • • • •
4pm – 6.15pm
Receive a refresher and update on jurisdiction, grounds and key principles. Get a better grasp on the process involved, including what must be filed and by when; and how to craft the required documents including notices of appeal and written submissions. Develop a better understanding of the role and implications of the interlocutory phase, namely seeking leave to appeal (if required). Enhance your understanding of the place of applications for leave to adduce further evidence. Gain insights into lodging and opposing cross-appeals. Become apprised of when points of appeal may – and should – be altered or reduced, and when this should occur. Receive guidance on preparing notes to aid presentation of argument at the hearing, including references to written submissions of both appellant and respondent. Benefit from insights into presenting argument in Court, including answering questions from the Bench and dealing with differing views from the Bench. Consider the impact of the high proportion of litigants in person in appeal cases. Improve your knowledge of differences in the appeals process at different court levels.
Cross-Examination Workshop Cross-Examination can make or break your case. In this learn-by-doing workshop, you will get to test your cross-examination skills and get individualised feedback from experienced practitioners in the field and members of the judiciary. Refine your cross-examination skills to increase your confidence and competitive edge. This is your opportunity to test your practical skills and receive feedback on your strategies and techniques direct from the ultimate decision maker - the Judge. This workshop sold out in 2017, 2018 and 2019 - there are limited places available, register now to secure your spot. Click here to read the LawNews article ‘ADLS cross-examination workshop a hit’.
Learning outcomes: • Learn more about how to properly plan and define your objectives for the cross-examination. • Build up your cross-examination confidence by engaging in practical learn-by-doing sessions followed by individual feedback. • Meet colleagues and engage in a challenging learning experience with them. Facilitators: Marie Dyhrberg QC; Paul Dacre QC; Paul Borich QC; Rachael Reed QC; Julie-Anne Kincade QC; Ish Jayanandan; Panama Le’Au’Anae; Aieyah Shendi
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Presenters Jim Farmer QC Jane Standage, Partner, MinterEllisonRuddWatts
Chair The Honourable Raynor Asher QC
Workshop CPD 4 hrs
Sat, 28 Nov 9am – 1.15pm
Moderators His Honour Judge David Sharp His Honour Judge Winter His Honour Judge Earwaker His Honour Judge Sainsbury
LawNews Issue 41 | 20 Nov 2020
CPD in Brief Unpacking the Amendments to the Equal Pay Act
Webinar
With the amendments to the Equal Pay Act having recently come into force, familiarity with the changes, and an understanding of what the new framework means for employees, businesses and trade unions may be desirable for all lawyers and advocates advising clients in the area. Presented from both an employer and union perspective, this webinar will provide an overview of the changes to the Act and offer practical advice on the new pay equity process. Presenters: Liz Coats, Partner, Bell Gully; Avalon Kent, Legal Officer, New Zealand Council of Trade Unions
CPD 1 hr
Future Planning: Alternative Mechanisms for Selling the Family/Small Business
Webinar
Globally, 80% of businesses are family owned, however only 25 to 30% of these businesses will successfully transfer to the second generation, leaving two thirds of business owners to find an alternative mechanism to sell their family-owned businesses. This webinar will focus on preparation for sale, compare sale processes, discuss the value of the business, the role of management or joint venture partners and working with advisors. Presenter: Tim Howe, Partner, Ocean Partners
Bully or Client – Where is the Line? In Person | Live Stream Lawyers are ethically obliged to accept instructions in their practice area from any client, unless they have “good cause” to refuse them. But at what point does the client’s behaviour justify terminating or rejecting an engagement? There has been considerable recent focus on bullying in the workplace, bullying between professionals, and bullying from the bench. We have heard less about the bullying client, and it’s a fraught topic! Presenters: Janine Stewart, Partner – Construction MinterEllisonRuddWatts; Katie Karpik, Solicitor, MinterEllisonRuddWatts Chair: Dennis Jenkin, Barrister
Youth Advocates Conference In Person | Live Stream The Youth Justice system in New Zealand has always been pioneering, and following amendments to the Oranga Tamariki Act in July 2019 practitioners in the Youth Justice space have even more tools at their disposal when working with rangatahi. It is a brave, exciting, new world and a time to make the most of what the Act, the Convention and the Treaty offer. The Youth Court is a specialist jurisdiction, requiring Youth Advocates to have special characteristics in order to be appointed, and special skills to do their work in addition to their legal skills. This conference will give an overview of the Youth Justice System and focus on the function and procedures in the courtroom.
Wed, 2 Dec 12pm – 1pm
CPD 1 hr
Wed, 17 Feb 12pm – 1pm
Seminar
Livestream
CPD 1.5 hrs
Thu, 18 Feb 4pm – 5.30pm
Conference Livestream CPD 4 hrs
Fri, 26 Feb 10am – 2.30pm
The conference will focus on: • The Youth Court • Family group conferences • Arrest, Police procedures and remands • Disposition – sentencing Presenters: Her Honour Judge Otene; Dana George; Maggie Winterstein; Maria Pecotic; Renee Karena; Judith Malcolm; Amosa Samuelu; Gary Earley Presenter/Chair: His Honour Judge FitzGerald
CPD Pricing Delivery Method
Member
Non-Member
Webinar (1 hour)
$80 + GST
$115 + GST
Webinar (1.25 hour)
$90 + GST
$130 + GST
Seminar (2 hour in person)
$130 + GST
$185 + GST
Seminar (2 hour live stream)
$130 + GST
$185 + GST
On Demand (1 hour recording)
$90 + GST
$130 + GST
On Demand (2 hour recording)
$145 + GST
$205 + GST
CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd
For group bookings for webinars and seminars, contact cpd@adls.org.nz ADLS members and non-member lawyers who have registered their Airpoints™ membership with ADLS can earn Airpoints Dollars™ on eligible ADLS CPD purchases. Terms and conditions apply.
Preparing Client-Focused Opinions Tuesday 24 November | Webinar | 1 CPD hour Visit adls.org.nz for more information.
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A specialist accounting practice is looking to sub-lease furnished offices in the Auckland CBD We are seeking furnished office space in the Auckland CBD of approximately 80m2 to 100m2 with the provision of reception and meeting room facilities (no car parks required). We are flexible in regard to terms of a sub-lease. If you would like to sub-lease to a reputable accounting practice, please contact: Rowan Chapman 09 215 4764 | rowan@chapmanatkins.co.nz
Offices Available Following some barristers leaving as a result of Covid, we have four offices available for rent, of varying sizes. The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom and a less formal meeting room), and communal entrance and client waiting area. Telephones, internet connection, printing and secretarial services also available and some furniture available. Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required. Photographs of the Chambers can be viewed at www.hco.co.nz/gallery. Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481
WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270
Wills 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. William Lawrence KING, Late of Whangarei, retired, aged 76 (died 04’09’20) Nicola Jane LATHAM (“Nikki”), Late of 1199A Whangaparaoa Road, Hobbs Bay, Whangaparaoa, coastguard, aged 56 (died 25’10’20) Siupeli Taiamoni PALU, Late of Auckland, previously resided at 4 Caravelle Close, Mangere, aged 59 (died 21’08’20) Lynette RYAN, Late of 80 Roberts Street, Waihi, formerly of Auckland, divorced, RSA bar manager, aged 69 (died between 25’08’20 and 16’09’20) Iosefa SIMI, Late of 11 Othello Drive, Clover Park, Auckland, aged 74 (died 25’09’20)
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LITIGATION LAWYER – PQE 1-4 YEARS LeeSalmonLong is a fast-paced, thriving Auckland City-based, specialist commercial litigation firm. We are looking for talented litigation lawyers with one to four years’ post-qualification experience to join our respected firm. We challenge our lawyers to develop their legal experience in a working environment that offers a high degree of mentoring. Our lawyers work on a range of files and engage in high levels of client contact and file responsibility in a modern working environment. They also work directly with external counsel and senior counsel and are given opportunities to develop their own ‘brand’. Our lawyers regularly appear in the District, High and Appellate courts, in arbitrations, specialist tribunals and mediations. This is an opportunity not to be missed. If this position sounds like you, please email in confidence your CV and impressive academic record to: kiaora@lsl.co.nz
Office to Lease Due to my impending retirement, my offices will be available to lease from 1 April 2021, subject to notice of renewal being given to the landlord before 31 December 2020. Superb location in High Street, close to Shortland Street. Two large offices, meeting room, reception area, file storage area, kitchenette and bathroom. Ideal for a sole practitioner or barrister. Architect-designed fitout, complete with all desks, furniture, filing cabinets, shelving and other office equipment. Contact me for further details: Peter Nolan phn@peternolan.co.nz, (09) 307 6935 or 021 608 955
ROOM AVAILABLE Vulcan Building Chambers has a spacious room in the historic Vulcan Buildings in Vulcan Lane available to a barrister wishing to share reasonably priced facilities with six other collegial barristers. Facilities include: Website, boardroom, library, kitchen, shower, ultra fast broadband, networked printing and photocopying and VOIP phone system. The chambers have a dedicated and capable office manager. Please email: eden@vulcanbuilding.co.nz or phone 09 300 1253
Senior property/relationship property lawyer • Property Law, relationship property, trusts, wills and estates team leader. • Established busy central city law firm. One principal, one senior lawyer, two junior lawyers, supporting law clerks. Up-to-date systems. • Firm expertise in Public Works Act compensation claims, charities law. • Partnership and practice acquisition opportunity. Contact; Warwick Wright, RAINEY COLLINS WRIGHT LAWYERS Mob: +64 27 294 4102, Email: wwright@rainey.co.nz
LawNews Issue 41 | 20 Nov 2020
CAREER OPPORTUNITY TAKAPUNA BEACH AUCKLAND
Auckland Law Practice for Sale This is an opportunity of a Lifetime for a person with the right experience. A general practice established for over 50 years is for sale in Auckland. The practice has 6 plus lawyers and support staff. It has a broad client base. It is available for sale on very reasonable terms due to the health issues of one of our principals. The practice focuses on property work, trusts, estates, wills, and family law. It would suit a lawyer (or perhaps two) with experience as general practitioners. A successful purchaser would need to have 10 years’ plus experience and a desire to manage and run their own business. It may well suit a larger firm as a suburban branch office. This practice is one of the best suburban practices in Auckland. The principal is willing to remain with the new owners for a period (to be agreed) to assist with the transitioning of the client base.
Morton Tee Limited is an established firm based in Takapuna Auckland with a settled client base offering a variety of interesting work. An exciting opportunity exists for a Property Solicitor ideally with 4-5 years’ PQE to work in our general practice and supervise our residential conveyancing team. The role will suit someone seeking greater autonomy and prospects of advancement together with a better work-life balance including the benefits a Takapuna beach-based practice provides. Confidential applications and expressions of interest should be directed to: Cristine Tee ctee@mortontee.co.nz P O Box 33133 Takapuna 0740 Auckland.
All enquiries in the first instance to advertiser@adls.org.nz marked “Auckland Law Practice for Sale”
Being Effective in a Civil Appeal Thursday 26 November | 2 CPD hours Covering crucial core content and the latest procedural and case law developments, this seminar will provide a roadmap for lawyers involved in bringing and arguing Civil appeals. This seminar would be of benefit to all lawyers involved, or potentially involved, in Civil appeal work.
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz
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CASE NOTE
Homeowners win another insurance quake battle By Sacha Jugum
of the judgment for details]
owners as a result of the earthquakes.
Canterbury Earthquakes – insurance law – alleged defective and inadequate repairs – applicable principles – liability and contribution – Law Reform Act 1936 – Declaratory Judgments Act 1908 – extent of any indemnity – “test case” – policy language and plain English terms – extent of defects – quantum – academic commentary – plaintiffs to receive $389,848.00 being “costs to fix” the defective repairs as interpreted under the policy, and the insurer is jointly and severally liable for this sum (less the amount of the $50,000.00 excess) with a separate amount awarded for alternative accommodation – no award of general damages – each insurer is indemnified by the other for certain sums [see para 709-715
Sleight & Or v Beckia Holdings Limited & Ors [2020] NZHC 2851 (Gendall J)
Applicable principles – detailed analysis of the scope of repairs – interpretation of the Sleights’ insurance policy and the terminology, including “plain English” and “costs to fix” – consideration of whether the Sleights got to choose their builder or whether IAG effectively chose the builder for them – comparison and discussion of various expert reports that outlined the repairs and the alleged defective issues – applicability of the Consumer Guarantees Act 1993 – detailed analysis of building contracts and the extent of checks that were made – whether IAG and QBE had “shared liability” for the “same damage” – consideration of precedent and academic commentary
The home of Joan and Alan Sleight was damaged in the Canterbury earthquakes and their claim was accepted by IAG, their insurer. The couple then alleged the ensuing repairs were defective and brought proceedings against IAG and the entities involved with the repairs. As certain entities connected with the repairs had subsequently gone into liquidation, IAG and QBE then made cross-claims (as did the Sleights) on the question of whether one insurance company should indemnify the other, or the Sleights, for the losses incurred [QBE had been the insurer of one the entities involved with the repairs]. This issue raised the application of the Law Reform Act 1936 s 17 and the concept of a contribution as a joint tortfeasor or, alternatively, in equity. The Sleights’ claims were seen as a test case and there is extensive discussion of the policy around the Canterbury earthquakes and the ramifications for infrastructure that resulted from the number of claims made by property
Held: The Sleights are to receive $389,848.00, being “costs to fix” the defective repairs as interpreted under the policy, and IAG is jointly and severally liable for this sum (less the $50,000 excess) with a separate amount awarded for alternative accommodation – no award of general damages – each insurer is indemnified by the other for certain sums with a net indemnity amount being identified [see para 709-715 of the judgment for details].
Confronting the Workplace Bully: Psychology & Law Wednesday 25 November | 1 CPD hour
This webinar is offered free of charge for members. This webinar will equip attendees with strategies to deal with and support victims of bullying and harassment in the legal profession.
T 09 303 5278
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E cpd@adls.org.nz
W adls.org.nz