LawNews - Issue 5

NEWS Mar 4, 2022 Issue 5

Inside ■ OCCUPY WELLINGTON

A ‘witches’ brew of anger’ P06

■ LEGAL PROFESSION

How to make partner P08-09

Govt turns the tables adls.org.nz

ON INSURERS

Contents 03-04 INSURERS CONSUMERS CONTRACTS

Draft Insurance Contracts Bill delivers power to policyholders LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

05 TRUSTEES ASSETS BENEFICIARIES

‘Worldly realism’ and the distribution of trust assets

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12-13

Clawing your way to partnership

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CPD IN BRIEF

Can international law bring Putin to account?

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Mar 4 2022

Photo: PBNJ Productions / Getty Images

Issue 5

INSURANCE LAW

Changes to insurance contracts give power back to consumers Most industry players believe the key changes have already been set in stone by a government intent on insurance law reform

Jenni McManus The insurance sector is undergoing a major shake-up – the first in nearly 100 years – with the release late last week of the draft Insurance Contracts Bill.

The bill, which had its genesis in a Cabinet paper prepared in 2019 for then Commerce and Consumer Affairs Minister Kris Faafoi, will rewrite the rule book on disclosure and risk in insurance contracts if passed in its present form. And insurers who currently hold the upper hand, will find the balance of power has shifted to policyholders and consumers.

All parties – insurers, advisers and business and consumer policyholders – are being urged to have their say on the draft legislation, though most industry players believe the key changes have already been set in stone by a government intent on insurance law reform and opportunities for further industry input will be limited.

As MinterEllisonRuddWatts notes on its website: “…it is likely changes made during the parliamentary process, including at the select committee stage, will be more in the nature of implementation detail, rather than underlying policy.”

Interested parties have until 4 May to make submissions on two options being proposed by the government.

Only one aspect of the Bill – the proposal to remove the insurance industry’s exemption from the Fair Trading Act’s ban on unfair contract terms (UTC) – is up for further discussion.

Along with the government’s proposed changes to the duties of

disclosure for consumers, the plan to scrap or severely limit the UTC exemption has drawn the most ire from the industry.

Seismic change Market-watchers describe the draft bill as a game-changer, warning of potential premium hikes and less availability of consumer insurance cover as insurers try to figure out what the changes will mean so they can recalculate and re-price their risk.

Lloyd Kavanagh, a partner at MinterEllisonRuddWatts and a financial services specialist, describes the bill as a ‘big deal’, saying it will have a profound impact on the entire insurance sector.

“If it’s passed largely in its current form, which we have every belief it will be, it’s going to make fundamental changes to duties of disclosure, it will introduce unfair contracts terms and regulation to insurance for the first time, it’s going to have a whole lot of requirements about the way consumer insurance contracts are presented and it will consolidate a raft of itsy bitsy legal reform going back to the 1930s,” Kavanagh says. “It shifts the power away from the insurer to the insured.”

The legislation will cover the entire licensed insurance industry – life, health, general and travel. It repeals five statutes, pulling New Zealand’s fragmented insurance law together into one Bill and bringing our insurance contract law into line with Australia and the United Kingdom.

For insurers and advisers, Kavanagh notes that the insurance contracts legislation is being introduced in tandem with the Financial Markets (Conduct and Institutions) Amendment Bill (COFI), both of which are likely to come into effect in 2025. “So, there will be a fundamental shift in the regulatory environment which will make quite a big difference to insurers and to insureds.”

COFI has been designed to ensure financial institutions comply with the principles of fair conduct. It also provides for conduct

Continued on page 04 03

Continued from page 03 licensing for the first time for retail insurers.

Uncertainty The draft insurance legislation has been two years in the making but there are still some significant loose ends. Bell Gully partner David Friar points to the introduction of a statutory duty of good faith in the Bill, with no attempt to codify it or otherwise address its scope. “It is unclear whether this new statutory duty is intended only to restate the position at common law or whether it is intended to go further,” he says.

Kavanagh says much of the detail around policyholders’ disclosure obligations is still unclear. “These will be significant but the detail will be in regulations which we haven’t yet seen. So that means even after the Bill is finalised and perhaps introduced into Parliament, a lot of the key detail and requirements will still be a work in progress, so that will be a challenge.”

One of the most significant changes is an about-turn on the duty of disclosure. Under the current law, those seeking insurance cover are required to disclose all information that would influence the judgment and risk assessment of a prudent underwriter. Failure to do so means the insurer is entitled to avoid the policy when a claim is made, even though the non-disclosure might have nothing to do with the claim.

The Bill puts the onus back on the insurer who will no longer be able to avoid a consumer insurance policy when there is nondisclosure by a policyholder. Rather than demanding consumers tell them everything the insurer might consider relevant, the insurer will now be required to ask specific questions, which the prospective policyholder must take reasonable care to answer honestly and correctly. If this duty of care is breached, the insurer will have proportionate remedies which will depend on whether the misrepresentation was innocent, fraudulent or reckless. But insurers say it will be costly and difficult to prove a customer has acted unreasonably.

For non-consumers, such as business policyholders, the disclosure duty will be replaced by a duty to make ‘a fair representation of the risk’. They must disclose all material circumstances they know about, or ought to know about, and every representation must be substantially correct.

Plain language Another controversial change is the requirement for insurance policies to be written and presented clearly so consumers can 04

understand them. Many larger insurers have already moved in this direction, but others face the time-consuming and costly job of reviewing and editing their policies, with these costs likely to be passed on to policyholders in the form of higher premiums.

Insurers will need to comply with a specific presentation and publishing format which is intended to help consumers compare products from different insurers.

If the Bill is passed, the Financial Markets Authority will share responsibility with the Commerce Commission for enforcing the unfair contract terms provisions in relation to contracts for financial services and financial advice products.

Industry opinion differs widely on whether this change, along with the plan to exempt insurance from unfair contract terms provisions of the Fair Trading Act, will achieve the intended result.

In a note on its website, Bell Gully says a highly prescriptive approach is likely to come at a high cost, with little benefit to the insureds. It notes: “It is inherently challenging to accurately translate complex insurance terms into plain language and there is a risk that doing so may dilute the clarity and effectiveness of insurance policies.”

Kavanagh says he thinks the Bill is taking the right approach to UTCs by offering two options. “Both of those need to be carefully evaluated and there are merits on both sides of the argument.

Fundamentally, for consumers, we’ve moved most other sectors to a place where providers understand that they need to review their contract terms to make sure they meet the standard of not containing unfair contract terms.

“There’s a lot of work to do on that but once the work is done, I think you actually settle on a fairer balance where the clauses that are in there are in there for a good reason and with a justification rather than someone simply saying, ‘what’s the most protective position we can take?’

“The interesting thing for insurers will be [with] those protective clauses that leave the risk with the policyholder rather than the insurer. When those change, their question will be ‘how do we price that additional risk we’re taking on board, and can we reflect that in premiums?’ which depends on a competitive dynamic.”

On the prospect of unintended consequences from the Bill, Kavanagh says it’s too early to tell. “Earlier consultation has all been hypothetical. Now the words are on paper, people will really focus on that, in conjunction with their likely responsibilities on the conduct of financial institutions amendment bill.”

It is important, he says, that the minister listens carefully to what the insurance industry tells him. The government might then avoid the debacle surrounding the pre-Christmas changes to the Credit Control & Consumer Finance Act. ■

Lloyd Kavanagh

David Friar

Marketwatchers describe the draft bill as a gamechanger, warning of potential premium hikes and less availability of consumer insurance cover

Mar 4 2022 Issue 5

TRUST LAW

How ‘worldly realism’ might affect the distribution of assets Anthony Grant

The court in Legler approved a pathway that enabled a human trustee to become the sole director of a corporate trustee who could take the assets for himself while in Brkic the court said the pathway proposed in that case would not enable the same outcome

proposed in that case would not enable the same outcome.

A question of particular interest for me arises from Settlors want full control over a trust the Supreme Court’s statement in Clayton (Vaughan but the law says they can’t. They must Road Trust) [2016] NZSC 29 that trusts containing cede control of the trust’s assets or the relationship property are to be interpreted differently trust will be invalid. to trusts that do not. Courts that interpret the terms of At the Cradle to GraveTM conference trusts in relationship property disputes are to respect in May, I will be talking about Legler v “the need for ‘worldly realism’… [and an] acceptance Formannoij [2021] NZHC 1271, 2 June Anthony Grant that strict concepts of property may not be 2021. Here, the court approved a person appropriate in the relationship property context.” [79] being a beneficiary and sole director of What is interesting about the a creditor. a corporate trustee who, in her capacity as director of What is Clayton decision is that it shows The Court of Appeal held in the the corporate trustee, could lawfully distribute all its Brkic case that in the context of a assets to herself in her capacity as a beneficiary. interesting about how the courts are willing to adopt a different approach to the creditor’s claim against a trust, a From the moment I read that decision I wanted to the Clayton interpretation of (a) trusts that trustee could not circumvent a no explore the ability for a person to be able to settle a decision is that creditors want to attack; and (b) self-benefit clause by resigning and trust, be a beneficiary of it and be able to distribute all trusts that a spouse wants to attack. appointing a corporate trustee of its assets to him/herself. it shows how If, in the context of a Legler-style which he/she was its director.

The Legler decision was supported by a decision the courts are dispute, it was advantageous to keep The court held that the power of the High Court of Australia which authorised a willing to adopt the assets in a trust and not allow a of appointment of trustees is a person to be both a beneficiary and the director of a a different husband/trustee to take them all for fiduciary power and cannot be corporate trustee who could distribute a trust’s assets himself, might a court with its focus exercised selfishly by the trustee to himself. approach to the as ‘worldly realism’ be unwilling to to enable him/her to take the In an era of increased difficulty in recruiting people interpretation allow a husband trustee to have such trust’s assets for himself/herself. It to be trustees, an obvious solution is for a settlor to of trusts that extensive control over a trust’s assets also held that even if the power of be the shareholder and director of a corporate trustee appointment of trustees was not and do what he or she wants with a trust’s assets. creditors want to and would it interpret the trust deed fiduciary, the power to appoint a new The facts of the Legler case were unusual and attack and trusts differently?

In short, in the context of creating trustee (ie, a corporate trustee of readers should not assume it’s safe for a person to that a spouse a corporate trustee of which a which the beneficiary was the sole be both a beneficiary and sole director of a corporate wants to attack beneficiary is its sole director, might trustee who is able to distribute a trust’s assets to him/ director) could not be exercised “for a focus on ‘worldly realism’ (whatever a collateral purpose to avoid the herself. that term means) produce a less Today’s article deals with one aspect of this subject restrictions of the no self-benefit predictable outcome for trusts in relationship property clause”.

– the fiduciary and other constraints that may prevent disputes than it does for trusts in creditor disputes? ■ The court in Legler approved a pathway that a trustee from being able to create a corporate trustee enabled a human trustee to become the sole director of which he/she is a director. These constraints were Anthony Grant is an Auckland barrister of a corporate trustee who could take the assets referred to in a recent case which is memorable for specialising in trusts and estates law. for himself while in Brkic the court said the pathway the plaintiff’s unpronounceable surname Brkic v White Cradle to GraveTM conference click here ■ [2021] NZCA 670.

A trust had what is commonly called a ‘no self-benefit clause’. The question was whether a creditor could access trust property on the grounds that a trustee debtor could appoint a corporate trustee in place of the existing trustee and distribute the trust’s assets to himself, so the assets of the trust could be treated as the trustee’s assets which could be taken by

05

INTERNATIONAL LAW

against Russian aggression in Ukraine?

But what is the point of all this international law if Russia can still invade Ukraine? Where is the enforcement?

Juliette McIntyre, Douglas Guilfoyle & Tamsin Phillipa Paige

The world was treated to a grotesque spectacle last week. Russia, the current president of the UN Security Council, launched an invasion of Ukraine while the Security Council was holding an urgent meeting to try to resolve the crisis.

Many people are now asking whether there is any point to international law. Is it powerless to control the conduct of states?

There is no question Russia has breached the rules of international law.

Ukraine has a right to territorial integrity and political independence. Russian ‘recognition’ of the independence of Donetsk and Luhansk does not change this, nor do any historical claims to Ukrainian territory on the part of Russia.

Russia has also committed an act of aggression against Ukraine. Aggression is an old concept in international law, predating the creation of the UN. War has been outright illegal since the 1928 Kellogg-Briand pact. The charter establishing the International Military Tribunal at Nuremberg in 1945 also declared the “planning, preparation, initiation or waging of a war of aggression” to be crimes against peace.

Finally, Russia’s acts constitute a serious breach of the UN Charter, which states: All members shall refrain in their international relations from the threat or use of force against the 06

While the ICC also has jurisdiction over war crimes, tying a president to the crimes of foot soldiers is complex and not something the court has ever succeeded in doing

territorial integrity or political independence of any state.

But what is the point of all this international law if Russia can still invade Ukraine? Where is the enforcement?

Article 24 of the UN Charter grants the Security Council primary responsibility for the “maintenance of international peace and security”. This includes taking collective measures to prevent and counter threats to peace and suppressing acts of aggression.

The UN was established specifically to prevent a global war between great powers from happening again. And since we haven’t seen this sort of event in the past 75 years, the UN has been

largely successful at this primary goal.

But here’s the rub: the UN Security Council (and the UN Charter more generally) was established by the allied powers who ‘won’ the second world war.

In establishing the UN, these powers (China, France, the UK, the US and Russia as successor state to the USSR) were positioned functionally above the law.

They were made permanent members of the Security Council (known as the P5) and given veto power over UN action.

This was done expressly to prevent the UN from being able to take action against them and to allow them to act as a balance to each other’s ambitions.

The system only works, however, when the P5 agree to abide by the rules.

This worked through the Cold War because no P5 state felt comfortable enough in its own power to act unilaterally and upset that balance.

Once that uneasy balance of power fell apart with the collapse of the USSR, the willingness of the P5 members to act with restraint began to chip away.

In the 1990s, the US and UK used the Security Council to rubber stamp their expansive military activity. Later, when Russia and China felt confident enough to use their veto power (most prominently in the Iraq invasion in 2003), the US and UK simply acted unilaterally. The Security Council – by design – was powerless to prevent it.

The same scenario is playing out now, with Russia as the aggressor. The restraint of the P5 in their use of military action has been hanging by a thread for decades. We may have just seen it permanently snap.

Other responses Russia’s ongoing transgression of the law is not the end of the story. There are other ways international law can be used to either defend Ukraine or punish Russia that go beyond economic sanctions.

One option is the invocation of Article 51 of the UN Charter, which gives states the right of individual and collective self-defence.

Ukraine can legally use force to

Continued on page 07

Photo: Ole Jensen / Contributor / Getty Images

Is international law powerless

Mar 4 2022 Issue 5

Continued from page 06

defend itself from attack and, moreover, can request military assistance from other countries. When Iraq invaded Kuwait in 1990, Kuwait issued a number of such requests to help it defend itself.

Questions have also been asked about whether Russia could be stripped of its permanent membership on the Security Council.

The simple answer is no. Arguments are now being made that Russia should not have inherited the USSR’s seat on the council. But all the states arising from the collapse of the USSR (including Ukraine) did agree to this in 1991.

As for the question of reforming the UN Charter to remove Russia, that is also functionally impossible.

While Article 108 of the UN Charter does allow for amendments, it requires all of the P5 to agree. So, to remove Russia from the Security Council, Russia would have to agree and that’s never going to happen.

This, again, is by design, so the P5 would feel confident in their security when taking action to police the world. Unfortunately, peace can’t be enforced when your enforcer is the one breaching the peace.

Can Putin be prosecuted?

There is also international criminal law. Putin has committed the crime of aggression by launching an illegal war and any Russian war crimes on Ukrainian territory are within the jurisdiction of the International Criminal Court (ICC).

But Putin will not stand trial before the ICC for aggression, due to the court’s narrow jurisdiction.

Uniquely, the aggressor state and the victim of its actions must both accept the Rome Statute (the treaty that established the court) and its jurisdiction over aggression.

While Ukraine has accepted the ICC’s jurisdiction, Russia is not a party to the Rome Statute.

So, the ICC has no jurisdiction

over Russian aggression without the Security Council referring Russia to the court as a non-party. And, of course, Russia can veto this action as a permanent member of the council.

While the ICC also has jurisdiction over war crimes, tying a president to the crimes of foot soldiers is complex and not something the court has ever succeeded in doing.

However, the ICC is not the only game in town. Any country in the world can prosecute grave war crimes, such as intentionally attacking civilians.

And countries can prosecute nationals of other states for aggression, if they have laws in place to do so.

Germany, the Netherlands, Ukraine and even Russia all have such ‘universal jurisdiction’ laws that apply to acts of aggression.

Similarly, the doctrine of command responsibility is also subject to universal jurisdiction. So, war crimes prosecutions need not stop with frontline soldiers.

However, the difficulty with universal jurisdiction is bringing suspects into custody. Heads of state, in particular, are generally immune from being prosecuted for crimes in foreign courts.

Not only that, for such prosecutions to happen, Russian political and military leaders would need to be removed from their posts, arrested and then extradited to face trial.

So, in the short run, will anyone be hauled before a court? No. In the long run? Maybe.

Meanwhile, the job of the international community is to gather evidence of crimes as they occur, and to support Ukraine’s right of selfdefence. International law is there, states now must use it.

Juliette McIntyre is a lecturer in law at the University of South Australia, Douglas Guilfoyle is a professor of international law at the UNSW in Sydney and Tamsin Phillipa Paige is a senior lecturer in law at Deakin University ■ The above is republished with permission from The Conversation

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■ 07

LEGAL PROFESSION

Making partner: tips and tricks for clawing your way to the top I knew a guy who was on the cusp of becoming a partner at a top-tier firm many years ago. He was a senior associate. But he didn’t do that massive corporate work that the firm was focused on. They just cut him loose basically

profession but have taken entirely different routes.

What’s more there are there are many different types of partnership, he notes.

Partner at 39

Gerard Souness

Diana Clement For many lawyers, making partner is the pinnacle. For some, it can’t come soon enough.

But becoming partner of a Big Three or other power-ranked firm is by no means the only career path for young lawyers.

Many have fulfilling and financially lucrative careers by becoming partners at smaller firms or by going to the bar.

But if you’re seeking to hit the big-time in a posh city firm, how should you plan your path?

Do you focus on building your brand and carefully plot every step of the way? Or point yourself in the right direction, work hard and hope for the best? Or simply leave it to the Universe to deliver? And should you start thinking about all this while you’re still at law school?

Aspiring students Most students are focussed on simply getting their degree and finding an area of law that suits them, says Professor Mark Henaghan at the University of Auckland.

However, for some law students, the idea of becoming a partner at a prestigious firm is definitely in their sights.

A percentage will progress in a linear fashion from summer clerkship to junior lawyer and work their way up the ranks in a single law firm to make partner.

Others will move sideways, take OEs, or go into government or in-house roles before returning and making partner in a firm.

There is no set way of getting from A to B, Henaghan says.

As an example he cites his two daughters who work in the legal 08

Nick Kearney

One way to get fast-tracked is to specialise in a growth area.

That might be energy, crypto, or climate change or a host of other niches

Chapman Tripp’s Gerard Souness was 39 when he became a finance partner. When he left law school, partnership seemed like an unattainable goal or something very much in the future. But experience along the way as an in-house lawyer definitely paved his way to partnership, Souness says.

After five years at Chapman Tripp, then four at the Russian office of Linklaters, Souness returned to New Zealand for another year at his former firm before joining Westpac – a move which helped him realise that the law firm environment was right for him.

“As a client of mine, I had got to know [Westpac] very well and they offered me the opportunity to join their in-house legal team,” he says. “This supported the transactional side of their institutional and corporate business. To me, it was quite attractive because I could have in-house experience but without the risk that I was leaving the law or leaving transactional banking and finance which floats my boat.

“After four years, I came to another point in my career where I did a similar assessment. Do I look to aim for my manager’s job?

Do I want to become a banker and give up the legal side of what I do? Or go back to a law firm? And if you’re going back to a law firm at that age and stage, it’s certainly time to start thinking about partnership opportunities and how you can contribute to the management, culture and direction of a firm.”

Stepping back into Chapman Tripp was a logical choice for Souness, “because of the relationships I already had, which are quite important in building a career and trusting that you’ll fit into the culture and environment. Despite the very transactional nature of our careers nowadays, there is still value placed on loyalty and long-term relationships.”

Nick Kearney, who was until recently a partner at Schnauer & Co and is now at Davenports Law, was a police officer before studying law, meaning he entered the profession at a slightly older age than many. Kearney knew early on that becoming a partner was the direction he wanted to take As a new lawyer he realised that to make partner, he would need

Continued on page 09

Mar 4 2022 Issue 5

Continued from page 08 to be very proficient at the task and knowledgeable in his area.

“I just went about learning as much as I could. Going to seminars, getting a client base, figuring out the areas of the law and property that were going to be lucrative, getting a master’s degree and studying certain aspects of the Real Estate Agents Act as an area of specialisation.

“I thought ‘I’m going to be committed to this. I’m going to apply my craft well. And so, I dedicated myself to it from the law perspective.”

Kearney has watched other contemporaries not make it to partner in their firm, or at all. The old adage, he says, is that lawyers are finders, generating new business, grinders, who are technically good at legal work, and minders who are on the front lines maintaining relationships and managing the work.

In smaller firms, partners need to be all three. In larger firms that can be shared out and some of the operations of the business can be delegated to practice managers.

Kearney has seen lawyers assume they have 10 or so years’ experience and should be made partner because of that. “It doesn’t [usually] work like that. You’ve got to be able to show many other factors.”

Some get lucky because a partner wants to retire and just needs someone to buy out the partnership. “There’s an element of succession to that. ‘Oh this person’s been here eight years.

They’re pretty good. Can’t they just buy me out and be the partner?’”

Conversely, good lawyers might be bringing in the work but aren’t in the right firm at the right time. “I knew a guy who was on the cusp of becoming a partner at a top-tier firm many years ago. He was a senior associate. But he didn’t do that massive corporate work that the firm was focused on. They just cut him loose basically.”

In that regard, Kearney says, it can be very cut-throat and one has to be prepared for disappointments.

Recruiters’ advice Robert Walters’ New Zealand manager, legal and professional services, Rosamund More says junior lawyers who want to make partner need to do the groundwork.

They need to build a brand, she says. “It is important for future partners to have a really good brand around them, so [clients] want to work with them.”

They also need to understand the firm’s expectations and its structure. “What the progression path is at the firm and what it takes to get to each level. Then there is technical ability.”

Rosamund More

Chris Boys

A partner is a business owner. A minder not just a finder or a grinder.

The business development side of the law is vital to succeed

Hand-in-hand with that, ambitious lawyers need to build their networks, More says. This is especially important in a small market like New Zealand, compared to the Magic Circle firms More recruited for in the UK when she worked there. “Make sure you’re building your network through lots of different sectors, probably in your personal life and in your professional life.”

One way to get fast-tracked is to specialise in a growth area.

That might be energy, crypto, or climate change or a host of other niches.

“There may be a senior lawyer who has shown that there was enough work [in] a high-growth area,” More says. She cites Nick Valentine at DLA Piper, who built a specialist IP, technology and data protection team where the firm had not previously had that expertise in New Zealand. He did that by prioritising the building of connections with the market-leading experts within the global DLA Piper network.

More than just a lawyer Good partners have soft skills, More says. And a partner is a business owner. A minder not just a finder or a grinder. The business development side of the law is vital to succeed.

Kearney adds: “You become a business owner as well as a practitioner. And you have to wear many hats. You’re running a business. You’ve got staff issues. You have creditors to pay.

You’ve got work to bring in. You’ve got the legal. It becomes a multifaceted thing.”

More says it makes sense for ambitious younger lawyers to become more tech savvy as well as honing their commercial nous.

Being from a diverse background could also help in the nearto-medium-term future. “Firms need to be more diverse, otherwise companies won’t work with them.”

New Zealand law firms are currently very male-dominated at partnership level, she says. “[It’s] surprising when you know that 70% of the law schools are filled out with females.”

Tips from the coalface There are many routes to partner. Souness says if asked to give top tips to junior lawyers, he would first say that loyalty and relationships matter.

“Retaining relationships with your friends from university or your colleagues across the firms still counts in terms of longterm career trajectories and opportunities. It might not become immediately apparent but years from now those genuine personal links will translate into career and client opportunities that you might not otherwise have had.”

Continued on page 15 09

OPINION/POLITICS

Occupy Wellington: a whole lot of shaking going on

10

Chris Trotter There are moments when the ordinary configuration of reality shudders and slips. Structures taken for granted; the familiar features of our everyday landscape can disappear in an instant.

The spire of Christchurch Cathedral. The peace of Europe. The re-election hopes of Jacinda Ardern’s Labour government.

“If your National Party is tired, lacking energy, don’t despair – just add Luxon!” That is the joke doing the rounds as the smart money on the 2023 general election shifts decisively from the government to the opposition. It’s been a long time coming but, just like the sudden transformation of Vladimir Putin – from the shrewd, chess-playing Russian president into Ivan-the-Terriblemeets-Dr Strangelove – the change, when it comes, is swift and shocking.

This political slide began with the Labour government’s sudden abandonment of its hugely successful covid-19 elimination strategy. In its place, the Prime Minister rolled out a new, constantly changing plan which a great many New Zealanders, even now, have real trouble understanding. Confusion replaced certainty and confidence was replaced by fear.

Perhaps the shift was inevitable, perhaps not. But if elimination had to be ditched, then the government should, at the very least, have had a new, improved and just-as-easily-understood strategy fully developed to take its place. A strategy that retained its predecessor’s key symbolic focus on the team of five million and which continued to make full use of the empathy and formidable communication skills of the team captain.

Fatal flaw With the benefit of hindsight, it is easy to see that the government’s new strategy for protecting the population from covid-19 – ie, mass vaccination incentivised by the introduction of vaccine mandates and passes – possessed a fatal flaw. It did not sufficiently take into account the presence in New Zealand society of a bloody-minded community of anti-vaccination activists. The government blithely assumed these anti-vaxxers, estimated at 5% to 10% of the population, posed no serious threat to its plans.

As subsequent events have proved, that assumption was incorrect.

The same strange psychological architecture that so easily accommodates the notion that vaccines are harmful contains plenty of additional space for other, equally bizarre fears and fetishes. Spaces that, in the age of social media and the dark web, are easily filled with all kinds of harmful disinformation, made

Photo: MARTY MELVILLE / Contributor / Getty Images

Many New Zealanders are beginning to ask themselves whether or not they are a bunch of mugs: dutifully obeying the laws of the land, paying their taxes, rates and parking fines while a malodorous collection of weirdos camped on Parliament grounds are daily offering proof that the police are a bunch of gutless wonders and the rule of law not much more than a useful political fiction

available to the mentally fragile by all manner of sinister suppliers.

In these all-too-vulnerable minds, ideas that ordinary citizens dismiss out of hand take root and grow into dangerous certainties.

The anti-vaccination community may not be particularly large as a percentage of the population but it is more than enough to cause the New Zealand state considerable grief.

And that is exactly what it has done.

Volatile and aggressive The unlawful occupation of Parliament grounds by a crowd fluctuating in number between 500 and 1,500 who purport to be protesting against the continuation of vaccine mandates and vaccination passes, but which also contains adherents of a host of outlandish political and medical conspiracy theories, as well as a hard core of violent extremists, has resisted all attempts by the police, Parliament’s Speaker, the Wellington City Council and mana whenua to move them on.

Were the occupiers the jobless vaccine refuseniks – resourceful anarchists and superannuated hippies, their defenders claim – the protest, while unlawful, might be tolerable. The truth of the matter, however, is that the protesters are a volatile and all-toooften aggressive collection of marginalised New Zealanders who have fallen out of love with both their fellow citizens and the government they elected, and mean to harm them both.

The rest of New Zealand observed this protest with mounting frustration. How is it possible, they want to know, that a group of people can park their cars in the streets of the capital for weeks on

Continued on page 11

Mar 4 2022 Issue 5

Were the occupiers the jobless vaccine refuseniks – resourceful anarchists and superannuated hippies, their defenders claim – the protest, while unlawful, might be tolerable

Continued from page 10

end without them being towed? How can they harass and assault adults and children passing by their encampment without being arrested? Why have they been permitted to erect structures on Parliament grounds in defiance of the Speaker’s orders? And, most importantly, why have they been permitted to hurl objects at and scuffle with police officers without being hauled off to jail?

‘Do something’ Most New Zealanders have an idea about ‘the government’ that invests it with irresistible power. If something untoward is happening in Godzone, then ‘the government’ is supposed to ‘do something about it’.

Kiwis are convinced that their elected representatives have at their disposal the police, the army and the courts (in roughly that order) to whom they can issue instructions and to which these key defenders of the state are obliged to respond promptly and effectively.

Ours is a majoritarian nation with scant regard for the rights of minorities and where the whole concept of the separation of powers strikes all but the historically and legally educated as absurd.

The Kiwi’s constitutional catechism is nothing if not succinct: Parliament is in charge; what it says goes. Most New Zealanders struggle with the notion that the Prime Minister cannot tell the Commissioner of Police what to do and find it even harder to believe he is legally entitled to ignore her instructions.

It matters little that commissioner Andrew Coster is firmly of the view that a forceful evacuation of Parliament grounds is likely to trigger significant violence, not only in the capital but also right across the country. His continuing failure to ‘do something’ about the protest (now entering its fourth week) is making New Zealanders very angry.

Many of them are beginning to ask themselves whether or not they are a bunch of mugs: dutifully obeying the laws of the land, paying their taxes, rates (and parking fines) while a malodorous collection of weirdos camped on Parliament grounds are daily offering proof that the police are a bunch of gutless wonders and the rule of law not much more than a useful political fiction.

Democracy is supposed to be about electing representatives of the people to govern the country. They get to do it because the rest of us are too busy just trying to get on with our lives. The police are supposed to enforce the law and keep the peace so ordinary citizens are not obliged to do it themselves. The army is supposed to protect the nation from its enemies – foreign and domestic. The courts are supposed to put bad bastards in jail – and keep them there.

Now, that’s not the way the constitutional purists would put it but that is the way most of the New Zealanders who vote would put it.

They look at Jacinda Ardern and her colleagues and they see a government that hasn’t achieved much at all, except keeping us safe from covid but which now struggles to do even that.

As the number of Omicron infections soars, they no longer hear their Prime Minister talk about the team of five million but about how everybody is now on their own. They know they should follow the rules but cannot help thinking that if the state is unwilling to clear its own Parliament’s grounds of unlawful protesters, then why should they bother?

While this witches’ brew of anger and disillusionment swirls and bubbles, all Christopher Luxon has to do to become New Zealand’s next Prime Minister is sit very still and not be Jacinda Ardern.

Providing, of course, Vladimir Putin lets him. ■ Chris Trotter is a political commentator and writer of more than 30 years’ experience. He is the author of the Bowalley Road blog ■

NOW PUBLISHED

Criminal Law in Aotearoa New Zealand Authors Julia Tolmie, Kris Gledhill, Fleur Te Aho and Khylee Quince Criminal Law in Aotearoa New Zealand sets out and discusses fundamental principles of criminal law, a selection of criminal offences and defence, and the law governing who can be held liable when an offence is committed.

Importantly, this text locates legal doctrine in the context of the constitutional foundations of the criminal justice system in contemporary Aotearoa New Zealand, including the collision of two ancient and very different traditions of justice – tikanga Māori and the English common law.

After acknowledging the limitations of state law as a vehicle for tikanga

and therefore the transformational change that will be required to give expression to Article 2 of Te Tiriti o Waitangi for Māori, the book distils the basic legality principles that should guide the common law development of criminal doctrine in Aotearoa New Zealand in the future.

Price for ADLS members $136.95 plus GST* Price $152.17 plus GST* To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740 or email: thestore@adls.org.nz * + Postage and Packaging

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FEATURED CPD

FINAL NOTICE

REMEDIES EMPLOYMENT DISPUTES

A practical guide to employment remedies Livestream 1.5 CPD hrs Tuesday 8 March 4pm – 5.30pm Presenters Simon Lapthorne, executive partner, Kiely Thompson Caisley and Charlotte Parkhill, partner, Dentons Kensington Swan Chair Scott Worthy, partner, Kiely Thompson Caisley

This seminar provides a practical guide to the types of remedies available in employment law and the basic principles to consider when applying for each type of relief. It also discusses what’s new in this space, including recent cases and the key takeaways. Further, it addresses routes to enforcing awards and the tax considerations of settlement agreements.

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FINAL NOTICE

Property law half-day conference 2022 UPDATES TIPS TRAPS

Livestream 4 CPD hrs Thursday 10 March 12.30pm – 5pm Presenters Mark Hopkinson; Helen Johnson; Louis McLennan; Joanna Pidgeon; Andrea Watson; Sarah Blackmore; Paul Cogswell and Mark Robinson

This conference will offer practically focused sessions on a range of property law topics presented by experts in their fields. It will be valuable to all those practising in the area of property law.

Chair Ian Jespersen

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Modern slavery and responsible supply chains BUSINESS SUPPLY RISK

Livestream 1 CPD hr Tuesday 15 March 4pm – 5pm Presenters Rebekah Armstrong, director, Business and Human Rights Consultants and head of advocacy and justice for World Vision and Nicola Swan, partner, Chapman Tripp

A lawyer’s guide to emerging requirements This seminar discusses the existing and emerging legal and ethical requirements around engaging suppliers and vendors, and the resulting impact on businesses. It outlines some practical steps businesses can take to minimise modern slavery-related risk in their supply chains and operations.

LIVESTREAM 12

Mar 4 2022 Issue 5

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Rural law series: demisting the environmental fog

Webinar 1 CPD hr Thursday 17 March 12pm – 1pm Presenters: Mark Dineen, partner, Anthony Harper and Charlotte Glass, director/ consultant, Agri Magic Limited

cpd@adls.org.nz

09 303 5278

Covering a range of rural due diligence environmental issues, this webinar will assist practitioners to demystify and digest the bow wave of amended or pending legislative and regulatory content so they can navigate and advise safely and with best practice.

CHANGES ISSUES GUIDANCE

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Self-represented litigants INSIGHTS STRATEGY SOLUTIONS

Webinar 1.5 CPD hrs Wednesday 23 March 4pm – 5.30pm Presenters Brian Carter, barrister, Bastion Chambers; William Fotherby, principal, Meredith Connell and Joanna Trezise, senior solicitor, Russell McVeagh

Challenges & solutions This webinar will offer strategies and practical insights into how lawyers can effectively deal with situations involving self-represented parties. It will particularly focus in on the challenges encountered by civil and commercial litigators and those practising in criminal, family and employment law.

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Significant developments in consumer law

Thursday 24 March 4pm – 6.15pm Presenters Brigette Shone, special counsel, Russell McVeagh and Charlotte Fleetwood-Smith, consumer law specialist, Russell McVeagh

CONSUMER DEVELOPMENTS PREPARE

This seminar will explain the key Fair Trading Act changes, work through practical examples and offer tips on how businesses can start preparing for them.

It will discuss the Bunnings decision and what it means for your clients. Finally, our presenters will discuss the Advertising Standards Authority, including some recent decisions and what role it could play for businesses and their advertising.

FIND OUT MORE 13

CPD IN BRIEF

Personal effectiveness workshop 2022

Online workshop 4 CPD hrs Tuesday 29 March 9am – 1.15pm Presenter Tony Gardner, managing director, Archetype Leadership + Teams

Reflecting on your goals for this year? Are you performing at your peak?

Is there room for improvement in your work methods? Coming to grips with how to be effective working virtually?

Returning for 2022, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant. Limited spaces available. Register now to avoid missing out.

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Client capacity

Livestream 2 CPD hrs Wednesday 30 March 4pm – 6.15pm Presenters Vicki Ammundsen; Andrew Steele and Dr Mark Fisher Chair Professor Kate Diesfeld

Practical considerations and best practice. Client capacity can be a grey and challenging area for lawyers and with our ageing population it will continue to be so. Understanding capacity issues in different legal contexts and the relevant legal tests and thresholds for capacity is essential.

Recognising red flags and having strategies to sensitively advise your client, knowing when and how to obtain the relevant capacity assessment from a medical practitioner and your obligations regarding client instructions when capacity is in question but not medically assessed, are all key.

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Written advocacy: what judges want

In Person | Livestream 1.5 CPD hrs Thursday 9 June 4pm – 5.30pm Presenters Raynor Asher QC, Richmond Chambers and Davey Salmon QC, Mills Lane Chambers IN PERSON

Deportation: a practical guide

Livestream 2 CPD hrs Wednesday 15 June 4pm – 6.15pm Presenters Richard Small, director, Pacific Legal; Deborah Manning, barrister, Landmark Chambers; Bernard Maritz, compliance manager, INZ and Terri Thompson, senior solicitor, MBIE Legal

Focussing on trial and appellate submissions, the panellists will provide invaluable insights into how to approach drafting, the structure and language to be used and ways to ascertain whether you’ve achieved your purpose.

Chair Paul David QC, Eldon Chambers

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If your client is facing deportation, an urgent and thorough response is required. Having a clear understanding of each step in the process, who to contact and when, your role (and that of your client, INZ, MBIE Legal, and the courts) and any issues to be aware of, is vital.

Chair Stewart Dalley, partner, D&S Law

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Top Up your CPD with ADLS before 31 March 2022 6 CPD hours for the price of 4 until 31 March 2022 Visit adls.org.nz for more information.

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Mar 4 2022 Issue 5

Continued from page 09 Second, says Souness, get in-house experience, especially if you’re a commercial lawyer.

“It makes you better appreciate the commercial drivers of your clients and you are more likely to empathise with their institutional procedures and provide your advice in a style that can be usefully acted on. There’s a reason to get to know your clients better and it’s not to collect more fees from them. It is to translate your legal advice into a product that can assist them in meeting their business objectives.”

Yeah, nah Not everyone wants the stress of a big law firm or the structure. When Chris Boys of Assured Legal started his law career, he had already been successful as a Lloyds broker in London.

In his early years in law, Boys ended up in a niche litigation firm as a senior solicitor. The intention was for him and another senior solicitor to move into partnership with the founding partner.

“I became aware ([that] this was her retirement plan effectively and that her valuation of what the firm was worth was quite unrealistic. The firm was run in the way that firms were run in the 70s and 80s and hadn’t kept up with the changes in the world.”

He worked out quickly that remaining on the partnership track at that firm was unsatisfactory, and he would spend a lot of time working and paying into an entity that wasn’t run the way he thought was effective, efficient, or reasonable. “As soon as I got to the level of PQE where I could do it myself, I left and set up my own firm.

“What I’ve learned from my [experiences] and from others is that a partnership is like a marriage. You’re going to have a very close relationship with the other partners, effectively for [the rest] of your working life. They require a lot of relationship management work.”

Boys knows some contemporaries who have gone into partnership but haven’t lasted a year.

“You are very much reliant on the quality of the partnership agreement. In an ideal world, you would have considered all the possible problems and issues that might arise. But most partnership agreements [are signed] when people are in the honeymoon of the business relationship. They don’t necessarily give the thought to what might happen when things go badly.” He has even seen one agreement that was handwritten in the 1960s.

Partnerships are tricky to dissolve, he says.

Boys wanted to be a partner when he started out but realised that working on his own in a different way suited him and his family. “In my case, I realised the term ‘partner’ is not magical”.

Looking back, Boys accepts that on a monetarily level he may not have had the same financial rewards as partners in bigger law firms. Career-wise, however, he feels that he has done better than he would have had he taken the partnerships on offer.

“I think financially I’d be better off if I’d gone down [the partner] route. …

The choice I’ve made means I don’t have junior fee-earners I am leveraging off. There is a financial cost [but] it’s also a choice that I made to not take on juniors and to operate that way. Saying that, I’m pretty comfortable.

“Career-wise I have done everything that I wanted to do. I’ve done some really really interesting work. Had the opportunity to write academically about my area and been appointed the chair of the Canterbury Earthquake Insurance Tribunal.” ■

WILL INQUIRIES

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

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

(09) 303 5270

ANDES Randy Mandac

MAMOE-STANLEY Theresa Fetu

• Late of 101 Tawa street, Melville, Hamilton • Carpenter • Aged 45 / Died 21’11’21

• Late of 3a Hillcrest Grove, Manurewa, Auckland • Aged 46 / Died 10’01’22

BAKER Hayden Scott • Late of Auckland • Married • Business director • Aged 43 / Died 22’01’22 BUER Patricia

MILLER Gregory James • Late of Papamoa Beach, Tauranga • Trade assistant • Aged 61 / Died 14’12’21 THOMPSON Anne

• Late of Epsom, Auckland • Aged 86 / Died 10’12’21

• Late of 166 Topito Road, Tuahiwi, formerly of Westport • Aged 81 / Died 14’01’22

CLARK Veronica Judith

TUMAHAI Francis Teahoro

• Late of Tokoroa • Beneficiary • Aged 62 / Died 21’07’18

• Late of 62 Kitemoana Street, Orakei, Auckland • Born in Rarotonga, Cook Islands • Aged 57 / Died 31’05’63

IKANI Vili Launga • Late of 124 Preston Road, Otara, Auckland • Labourer • Aged 63 / Died 20’11’21

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Senior Lawyer

Senior Family Civil Litigation Lawyer

We are looking for a Senior Lawyer with a minimum of 5 years’ PQE to join our team. This role is to take over the workload of a Director who is retiring.

This is a great opportunity for an ambitious and dynamic person with a sound understanding of Trusts, Property and Business.

The ability to supervise Estate work undertaken by another team member would be beneficial.

A fantastic opportunity has arisen for a Senior Litigation Lawyer with solid family and civil litigation experience to join our established and collegial team.

Key attributes required for this role: • Have experience in dealing with clients and able to manage your own files with minimum supervision.

• Relate well to clients and referrers.

• Have good time management, interpersonal skills, attention to detail and operate in a collaborative team environment.

• Be able to work in a Paperlite office and manage an electronic file using Infinity Software.

The position will suit an experienced lawyer who wants to undertake enjoyable and challenging work in a small but supportive environment.

Bruce Dell Law has been in business in Panmure, Auckland for over 37 years and has a large and loyal client base comprising private clients and small businesses located throughout greater Auckland.

A large part of the position comprises family law with a particular emphasis on relationship property. There is also an opportunity to undertake general litigation work including trust and estate disputes, PPPR applications, employment and civil disputes.

We offer: • An innovative firm with a great team environment.

• An opportunity to be part of one of the Eastern Suburbs’ largest legal practices.

• Market salary, team monthly and annual bonus schemes.

• Excellent established precedents, systems and technology.

• Free parking and iPhone.

• The excellent training, conferences and benefits that are available to members of NZ LAW legal firms.

This is a key senior position following departure of our existing Senior Litigator to pursue other opportunities outside mainstream legal practice.

Added benefits include a highly competitive remuneration package, free parking, a relaxed and supportive environment with genuine respect for family and personal time (no weekend or overtime work generally required!).

Please email your resume and covering letter to our Practice Manager, Brandon Tam brandont@dglaw.co.nz or Director, Kelly McCullough kellym@dglaw.co.nz.

Please forward a covering letter with your email to bruce@brucedell.co.nz or alternatively please feel free to ring Bruce for a confidential discussion on 021 979 118.

No Agencies please

Cradle to Grave™ Conference 2022 Christchurch Conference | Monday 2 May Auckland Conference | Thursday 5 May For those lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ Conference is back again in 2022.

T 09 303 5278

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Mar 4 2022 Issue 5

Business For Sale Highly Profitable Boutique Law Firm

SOLICITOR

$495,000

Auckland Surrounds Take your law career to the next level with an established practice in a booming town with a client base of over 2,500. With highly trained and loyal staff keep operations humming smoothly all year round.

We are a boutique firm providing services to private clients, SMEs, and community organisations. Recent internal changes have created the need for a capable solicitor to manage the firm’s existing private client work. The role will require a background in General Practice (including some experience in subdivisions).

UNDER CONTRACT

We are a small and collegial team, with an eye on high professional standards. The applicant should be: an experienced solicitor; adaptable; and willing to work in a small team environment. The role may also suit a practitioner, with their own clients, who is looking for a home.

• The entire operation can run remotely!

• Profits in excess of $545k!

• Efficient systems and procedures • Work-life balance. linkbusiness.co.nz/EL03400

Are you considering selling your Law Firm in 2022?

If you are looking for a fresh start and are curious about the value of your business call me today for a confidential discussion.

Please email applications to: The Practice Manager Vinci Law Greenlane | Auckland manager@vincilawyers.com

JD Hyslop 021 377 569 jd.hyslop@linkbusiness.co.nz

All LINK Offices Are Licenced REA08

“You only get one chance to sell your business, so it makes sense to do it right.”

0800 546 528 LINKBUSINESS.CO.NZ

A Practical Guide to Employment Remedies Tuesday 8 March | 4.00pm - 5.30pm This seminar provides a practical guide to the types of remedies available in employment law and the basic principles to consider when applying for each type of relief; it also discusses what’s new in this space including recent cases and the key take-aways from them.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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