LawNews - Issue 7

NEWS Mar 18, 2022 Issue 7

Inside ■ CRIME

Repealing the three-strikes regime P06

■ OPINION

Is ‘misinformation’ a new veto word?

P07

How the commission tripped at the adls.org.nz

FINISH LINE

Contents 03-04 COMPETITION GROCERIES DUOPOLY

The road not taken: did the Commerce Commission lose its mojo?

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

05 TRUSTEES CREDITORS INDEMNITY

Recovering unpaid debts from trustees

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

10 LITIGATION COURTS PROCEDURE

12-13

A week in the life of a lawyer: part two of a series

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Photo: Martin Barraud / Getty Images

CPD IN BRIEF

Are lawyers quitting the profession because of work stress and vicarious trauma?

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Cover: the_burtons / Getty Images

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Mar 18 2022 Issue 7

COMPETITION LAW

Grocery competition ‘muted’ but so are the outcomes

The commission highlighted planning laws and their implementation by local councils as limiting the availability of land

Gary Hughes The final report confirms what many consumers intuitively feel when they visit the store – only weak incentives exist for Woolworths and Foodstuffs to compete head-on to deliver the right pricing, quality and range of items to satisfy consumers’ diverse preferences.

While dominating small growers and suppliers’ negotiations, end-customers tend to receive glossy promotions and confusing loyalty schemes, not the long-term cheaper prices that a third player could impel.

Rather than any knock-out blow to the duopoly, the commission recommended a nuanced range of tweaks to improve market dynamics over time. If fully and firmly implemented, some should make a difference.

But the impact will be gradual.

Key suggestions were to: ■ urge wholesale supply to be offered to other grocery retailers on a voluntary basis, subject to monitoring and limited regulatory measures; ■ address imbalances in bargaining power between the two majors and their suppliers via a mandatory grocery code of conduct, Commerce Act exceptions to permit collective bargaining by supplier groups, and strengthening Fair Trading Act unfair contract terms rules for small business; ■ help consumers make better-informed purchasing decisions and improve price transparency at retail stores by introducing mandatory unit pricing, as well as asking the majors to co-operate with price comparison websites and ensure their pricing/promotional practices and loyalty card programme terms and conditions (and data harvesting processes) are clear and simple to understand; ■ free more land for supermarket development by changes to planning laws, ban restrictive covenants on land and exclusivity covenants in leases and closely monitor strategic conduct

The Commerce Commission’s final report into New Zealand’s retail grocery duopoly landed on 8 March 2022.

Chair Anna Rawlings describes competition between the two leading supermarkets as muted and ineffective. But only a slow gradual path to better market outcomes emerges from the commission’s recommendations

such as misusing most-favoured-nation (MFN) clauses or exclusive supply contracts.

That last set of issues, to improve entry and expansion conditions, is the focus of this short article.

The commission’s most telling conclusion was: “Under current market conditions, we see little prospect of new or expanding rivals being able to achieve the scale and geographic coverage required to compete effectively with the major grocery retailers. Competitors wanting to enter the market or expand face significant challenges.”

Little has changed since the short-lived Warehouse Extra foray into groceries in 2007-09. As the Court of Appeal observed in Commerce Commission v Woolworths Limited & Ors [2008] NZCA 276: “ [the commission] also concluded, uncontroversially, that there were high barriers to entry into the relevant markets (for reasons associated with access to suitable sites, requirements for resource consents and economies of scale) and that there is no likely new entrant into the relevant markets other than the Warehouse.” [166]

Lack of sites Suitable sites are critical for successful entry and expansion of supermarket chains. But there are few available sites for large retail footprint developments, especially in urban areas. The commission highlighted

planning laws and their implementation by local councils as limiting the availability of land.

It also found problems with planning applications taking into account the positive effects of stores bringing trade competition as a beneficial factor. Take, for example, the Supreme Court’s difficulty interpreting whether trade competition was a positive or negative factor in lengthy planning appeals over the Discount Brands outlet mall, in Westfield (NZ) Ltd v Northcote Mainstreet Inc & Ors [2005] NZSC 17.

Beyond inherent restraints where suitable land is not geographically/physically available, the commission identified three specific market conduct items affecting site availability and development: ■ lodging restrictive covenants (including encumbrances) to stop future supermarket development; ■ inserting exclusivity covenants in leases to prevent competing supermarkets or retail grocery firms (especially around malls or shopping centres); and ■ land banking – buying and holding sites for future use without any specific plans for development.

The commission noted (p212) that wilfully adding restrictive covenants to reduce the scope of activities which can be conducted on a piece of land is counterintuitive, as it may significantly reduce the value of

Continued on page 04 03

Continued from page 03 land so encumbered. This suggests the owner at least expects the benefits of lodging restrictive covenants (increased sales and profits as a result of less competition) will outweigh foregone asset value.

During the course of the inquiry, progress was made. Under media and regulator pressure, the duopolists offered to remove many land covenants, potentially freeing up 90 more sites over time that would have been locked away by restrictive title conditions for up to 20 years.

A key recommendation now for government is to improve availability of sites under planning law, as that largely sets conditions of entry and expansion. It affects the market in multiple ways: ■ zoning rules significantly reduce the number of suitable sites available for retail; ■ firms can game the consent process to hinder competitors’ access to or ability to develop suitable development sites; and ■ rule-setting, notification and consenting processes cause delay, cost, uncertainty in setting up retail stores and supporting distribution facilities.

How the government weaves that into its current triple-headed legislative reforms of the Resource Management Act will be intriguing.

Wholesale supply Another major impediment to market entry or expansion is accessing wholesale supply of a decent range of grocery items on reasonably competitive terms.

Fringe grocery retailers like Supie or Farro need to compete more effectively on range and price if they are to attract mainstream customers. Otherwise they stay on the fringe. Wholesale supply could also be a stepping-stone for new entrants to grow and develop their own direct relationships with growers/processors.

The commission looked at two categories of conduct having an impact: ■ suppliers refusing to supply other retailers, out of fear of delisting or retaliation by Foodstuffs or Woolworths; and ■ supply arrangements with the two majors affecting the basis on which suppliers can deal with other parties.

Refusals to supply have long been an issue in competition law, typically dealt with under misuse of market power provisions of the Commerce Act. But the evidential threshold is so high, and caselaw interpretation of the s 36 tests now so troublesome, 04

The key is creating a range of commercial conditions that might entice an Aldi, Asda, Lidl or Walmart into New Zealand

that the commission has largely given up taking market power prosecutions. Instead, that awaits statutory reform of s 36 with an ‘effects test’.

And some forms of subtle pressure by established firms might not be clearly actionable, such as the example (p249) of suppliers cajoled into limiting access to products by new online provider, The Honest Grocer. After first agreeing to supply, many suppliers later withdrew products due to genuine fear that they risk other parts of their business. And the commission found examples of suppliers willing to supply only if that retailer did not undercut the prices set by big supermarkets for the same products.

Use of this buyer side (duopsony) power to demand contractual understandings can come in various forms, such as best price clauses, MFN clauses or terms requiring suppliers to give certain items or brands exclusively to a particular retailer if it wants promotional and premium shelf space.

There is no silver bullet here, because such clauses may be mutually negotiated for pro-competitive reasons too. Market dynamic and negotiation factors need to be weighed up. But the commission is signalling to suppliers (and their lawyers) there will be more scrutiny of such contract clauses.

Innovation and investment The commission backed away from its draft report findings of excess profits being made by big supermarkets.

But it kept up pressure on findings around innovation and technology, concluding that the pace and scale of innovation in New Zealand appears to be less than might be seen overseas or expected in a ‘workably competitive’ market (see Commerce Act s 3(1)).

That included apparent slowness to take up innovations aimed at improving consumers’ in-store shopping experience, such as contactless, trolley or hand-held ‘scan & go’ trials or investing to create efficiencies through the supply chain or introducing new products and private label brands.

Both supermarkets argued they regularly monitor and introduce new technology and cost-saving devices. But in benchmarking levels of innovation to overseas, the commission found we are often delayed in getting digital, flexible or innovative offerings here: “The scale and pace of innovation is important because it impacts the prices, choice and options available to consumers over the longer term.

Where competition is weak, retailers may have little incentive to innovate.” [95]

Roads not taken The commission backed away from forceful interventions such as divestiture of land sites or supermarket locations to new entrants, or breaking open access to existing wholesale supply chains controlled by Foodstuffs and Woolworths.

Those options would be complex, a major intrusion into private property rights and likely to be hotly contested through the court system.

Was that just sabre-rattling in the draft report?

We’ll never know. It certainly got the duopoly’s advisors and expert economists submitting forcefully in the final consult round. This has left many commentators underwhelmed by the set of outcomes. At the press conference, the commission faced accusations it had ‘bottled it’ with the final report.

However, it made a fair point that even those steps might fall flat and not sustain a true independent player over the medium term. The key is creating a range of commercial conditions that might entice an Aldi, Asda, Lidl or Walmart into New Zealand.

Next steps This Inquiry began in November 2020, took 15 months, engaged with more than 12,000 consumers and interested parties and cost a lot of money. The minister had already set the commission its next market study, into residential building supplies, before the grocery inquiry was even finished.

He will need to move just as swiftly to implement the commission’s recommendations, including planning law changes, since they may take years to show an impact on the market. Otherwise, market studies may come to be seen as just a more expensive version of Productivity Commission reports, rather than firm regulatory intervention. ■ Auckland barrister Gary Hughes specialises in regulatory investigations and proceedings, such as Commerce Commission, FMA, SFO, and AML-CFT issues, along with insurance or privacy aspects. See: www.law-strategy.nz or gary@garyhughes.nz ■

Mar 18 2022 Issue 7

TRUST LAW

How creditors can recover unpaid debts from trustees Not all trustee-debtor expenses or liabilities fall within the section Andrew Steele

Andrew Steele

At common law, a trusteecreditor generally had no direct claim against trust property

Section 86 of the Trusts Act 2019 is entitled Creditor’s limited claim to trust property through trustee’s indemnity and gives creditors an important and powerful new tool to recover unpaid debts and liabilities incurred by trustees.

The first thing to note is that the section applies in either of two instances: ■ where a trustee incurs an expense or a liability to a creditor and the trustee and has a right to be indemnified from the trust property (s 86(1)(a)); and ■ where a trustee incurs an expense or a liability but is not entitled to be indemnified or fully indemnified from the trust property (s 86(1)(b)).

The second circumstance is itself circumscribed by three additional qualifications that, in connection with the particular ‘expense or liability’: ■ the creditor has given value (s 86(1)(b)(i)); and ■ the trust has received a benefit from the transaction between the trustee and the creditor (s 86(1)(b)(ii)); and ■ the creditor has acted in good faith (s 86(1)(b)(iii)).

So, not all trustee-debtor expenses or liabilities fall within the section. For example, a trustee enters into a sale and purchase agreement to buy a property but defaults on settlement, resulting in the vendor incurring a loss on re-sale.

The vendor may obtain judgment in damages against the trustee, but that liability will not fall within s 86 unless the trustee has a right of indemnity for the liability – an unlikely prospect.

If the trustee entered the purchase in breach of trust, so losing his/her right to an indemnity, the creditor’s ability to use s 86 depends on ticking off each of the three requirements of s 86(1)(b).

In the above example, the unfortunate creditor does not get past the first hurdle of ‘giving value’ in s 86(1)(b)(i) but in any event could not overcome the second hurdle as the trust received no benefit from the transaction as required in s 86(1)(b)(ii).

Of course, the trustee’s liability is personal (now codified in

s 81(1)), but that is not much use if the trustee is impecunious or a $100 trustee company.

Where the ‘trust’ expense or liability involves the giving of value by the creditor and receipt of benefit by the trust, then the creditor (assuming he/she acted in good faith per s 86(3) – that is, had no reason to apprehend that the indemnity was imperiled) ends up in a similar position to the trustee-creditor in s 86(1)(a) – that is, where the debtor-trustee never lost or impaired their right of an indemnity from the trust property.

It seems fair enough that a trust-creditor should have rights against a trust’s property, given that they transferred value to enhance that property. Note that the three conditions in s 86(1)(b) echo the principles of unjust enrichment.

The fortunate creditor who falls within s 86(1) enjoys the benefit supplied by s 86(2), namely, the creditor becomes entitled to satisfy his/her claim by way of an indemnity directly against the trust property “… as if the creditor were in the position of a trustee who has a right to be indemnified from the trust property”.

Common law It is apposite to reflect on the pre-Act common law position. As a general rule, a trustee-creditor had no direct claim against trust property. Instead, they were obliged to enforce their claim against the trustee personally who, in turn, indemnified themselves from the trust property to discharge the creditor’s claim – assuming the right of indemnity had not been impaired in some way.

An exception to the general rule existed when it was impossible to enforce the liability against the trustee personally – for instance, where the trustee has absconded, died or become insolvent.

In that event, the creditor could subrogate into a trustee’s right of indemnity (or step into the shoes of the trustee). Lewin on Trusts (18th edn para 21-10 paragraph 21.38) puts it this way: Although unsecured creditors and other claimants do not have a direct claim against the trust property in respect to unsecured liabilities incurred by trustees in the administration of the trust, and cannot levy execution upon the trust property, they may by subrogation have a right to stand in the place of the trustee and enforce their liabilities against the trust property to the extent

Continued on page 11 05

CRIMINAL LAW

Why the three-strikes legislation must go Implementing transitional arrangements is consistent with the principle that legislation can be applied retrospectively if it is entirely to the benefit of those affected

Hannah Hellyer

Marie Dyhrberg QC

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The ADLS Criminal Law Committee has appeared before the Justice Select Committee to make oral submissions on the Three Strikes Legislation Repeal Bill which, if passed, will repeal the Sentence and Parole Reform Act 2010.

The ADLS committee strongly supports the repeal of the three-strikes regime. ADLS President Marie Dyhrberg QC and Hannah Hellyer, a barrister specialising in criminal and parole law, last week told the select committee the regime results in disproportionate and unjust punishment by removing judicial discretion in sentencing and determining parole eligibility, thereby contradicting several fundamental sentencing principles and inalienable individual rights.

Nor does the regime allow for a fundamental purpose of imprisonment – to provide access to timely and adequate rehabilitative treatment and reintegrative opportunities while the offender is monitored and supported by Corrections. This is the only effective response to stop serious offending, Hellyer told the select committee.

The ADLS committee also strongly supports including transitional arrangements for those currently serving a sentence of imprisonment under the regime.

The fallacious belief that three-strikes serves as a deterrent has led to unjustified and sometimes absurd sentences. The regime has not stopped serious offending, the committee says. The only fair legislative response is for those affected to be placed in the position they would have been in but for the regime.

In accordance with Legislation Design and Advisory Committee’s Guidelines on Retrospective Laws, Dyhrberg and Hellyer submitted that implementing transitional arrangements is consistent with the principle that legislation can be applied retrospectively if it is entirely to the benefit of those affected.

In summary, they said, these arrangements would mean second-strike offenders sentenced to a term of imprisonment of less than two years would automatically be released after serving 50% of their sentence. Second-strike offenders sentenced to a term of imprisonment of more than two years would be considered for parole after serving one-third of their sentence. The remaining second and third-strike offenders should be re-sentenced, and

this should include the determination of a minimum term of imprisonment.

Arena Williams, Labour MP for Manurewa, agreed with Hellyer’s submission that New Zealand should not have implemented the regime in the first place. However, she was interested in how the courts and Parliament should make reasonable decisions about things like re-sentencing when this legislation was lawful at the time the sentence was passed.

Hellyer again pointed to the principle that legislation can be applied retrospectively if it is entirely to the benefit of those affected. Re-sentencing would be a simple process as the High Court could access the submissions filed on sentence and the judge’s sentencing notes, including information on what the sentence would have been but for the regime.

ACT list MP Nicole McKee wanted to flesh out the ADLS committee’s thoughts on retrospective sentencing in relation to more heinous criminals and how we might keep the community safe if those offenders were released from jail earlier.

Hellyer said there was no reason to believe the court would impose a lenient sentence. For serious or recidivist offenders, other serious sentencing options are available. But under the threestrikes regime, the court cannot apply its nuanced analysis of the offender to determine what sentence is most appropriate.

Hellyer also noted that offenders are released on parole only when the Parole Board is satisfied they do not pose an undue risk to the community. In her experience, the board does not easily grant parole.

Furthermore, if parole eligibility is reinstated, the board, through subsequent parole hearings, can monitor the individual’s progression through his/her sentence and ensure they are accessing the treatment they need.

Vanushi Walters, Labour MP for Upper Harbour, asked whether transitional arrangements have been, or will be, implemented by the overseas jurisdictions which are repealing their equivalent legislation. If so, are those echoed in the transitional arrangements proposed by the committee?

This question requires further research. However, Hellyer referred to the example of the Northern Territory, which is repealing its equivalent legislation, and the United Kingdom, where the courts have worked around the legislation by finding, similarly to the Supreme Court in Fitzgerald, that the UK’s equivalent of s 9 of the Bill of Rights Act 1990 is inalienable.

The Justice Select Committee hearing may be viewed by visiting the following link.

Its report on the bill will be completed by 17 May 2022. ■

Mar 18 2022 Issue 7

OPINION

Talking about ‘misinformation’

The way in which it is used seems to suggest it is a veto word and that the subject matter to which it refers is to be discounted as misinformation without further explanation.

The following was written some weeks ago before the Parliament garden occupation began. Since then, the term ‘misinformation’ has been bandied about largely as a motivating basis for the protesters and occupiers.

But misinformation is not new, by any stretch. The advent of the printing press and the growth in the amount of printed material rocketed to 4,038 items printed in 1642 alone, just before the beginning of the English Civil War. Clare Jackson in her book ‘Devil-land: England under siege 1588 – 1688’ states: “Moreover all information – whether audaciously printed or whispered rumour – could be denounced as erroneous, misleading or damaging. Royal courtiers and foreign ambassadors alike detected an unwelcome rise in ‘false news’, fearing that London’s Royal Exchange could rival the Rialto in Venice or the Piazza Navona in Rome as a notorious site for rumourmongering” Chris Keall in The NZ Herald (4 March) sets out ways to address “misinformation” while failing to define the term. In short, he subscribes to the suggestion by Don Christie that all that is needed is for existing laws to be enforced.

In the bad old days, the information technology of the printing press was regulated quite severely, especially during the reign of Charles II and James II with the enactment of the Licensing Act 1662. This set up a rigorous licensing regime that came to an end in 1696 when the Act was not renewed. An unintended consequence of that was the enactment of the Statute of Anne 1710 which formed the foundation for our modern law of copyright.

Plus ça change?

The term ‘misinformation’ is a curious one. It is frequently used in commentary, especially in the context of the covid pandemic and it has been used in a number of official publications (The Disinformation Pandemic; Sustaining Social Cohesion in Aotearoa New Zealand).

In those publications it has not been defined. It seems to be assumed that its meaning is understood.

Lynn Grieveson – Newsroom / Contributor / Getty Images

David Harvey

‘To misinform’ qualifies the word ‘inform’ with the Yet the way in which it is used seems to suggest it is modifier ‘mis’ and means to give someone false or a veto word and that the subject matter to which it misleading information (we will look at ‘information’ refers is to be discounted as misinformation without in a moment) – to tell someone something that is not further explanation. correct.

My training as a lawyer and as an ‘Information’, like the verb ‘to academic has taught me to question A veto word inform’, derives originally from assumptions. As a lawyer, I have effectively Latin informare – to inform. It is the been concerned in establishing a shuts down nominative (noun) version of the proposition by supporting it with word and has a variety of meanings. specialised information which lawyers the debate. In a call evidence. As a judge, I was sense it prohibits The most common synthesis of these meanings is material that informs. required to give reasons for decisions. the continued Information need not be verbally As a PhD candidate I had to justify exchange of ideas transmitted. It may be by way of every assertion and assumption written material or material that I made. In all three examples is gathered by the senses and intellectual rigour is required. which may then be interpreted into something that If a speaker or writer asserts there is provides meaning to or knowledge about what has misinformation, the question that first springs to mind been experienced. Information may be data which is is ‘what is misinformation’. What does the critic mean then analysed and interpreted into a form that has when he or she asserts that the subject matter of meaning to the person being informed. the criticism is misinformation? What is the definition of misinformation? Or is it a term with a number of An oxymoron? meanings and the correct meaning depends on the context in which it is used?

Some might say that ‘misinformation’ is a Perhaps we should start by breaking the word down. contradiction in terms. If information is to apprise one ‘To inform’ is a verb and means to give or impart knowledge of a fact or circumstances – to tell Continued on page 11 someone about something.

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LEGAL PROFESSION/WELLBEING

Former Crown prosecutor launches legal wellbeing project The bottom line is that in a good culture we all should be keeping a watch out for each other as at any time unexpected events can rock wellbeing very quickly Georgina Patel

Rod Vaughan It goes without saying that judges and lawyers are expected to be unemotional, rational and detached as they go about their daily business.

They inhabit a world in which logic and rationality prevail and where having a stiff upper lip is the name of the game.

But this may come at a huge emotional cost, as many have discovered when they find themselves unable to cope with the unrelenting stress and trauma of a job that regularly exposes them to some of the most distressing and disturbing aspects of the everyday world.

Criminal lawyer Greg King and Judge Robert Ronayne are just two examples of those who have struggled. Both died by suicide.

The impact of work-related distress and indirect or vicarious trauma on New Zealand lawyers is now the subject of a major research project being undertaken by a team of lawyers and health researchers from AUT. The team leader is former Crown prosecutor Georgina Patel (nee Woods-Child), who has practised in both criminal and family law.

The project, which has substantial funding from the New Zealand Law Foundation, is collecting data from lawyers through anonymous surveys, along with one-on-one interviews.

Speaking on behalf of the team, Patel told LawNews that many legal professionals experience some form of work-related distress or indirect trauma but the extent and nature of it has not been researched in New Zealand.

“There has been significant international research on the impact of work-related distress and indirect trauma on lawyers,” she says. “However, these studies do not account for New Zealand’s unique culture or the unique backgrounds of our clients. While we can draw on the ideas proposed by international 08

Chief Justice Helen Winkelmann

Any New Zealand strategies for supporting legal professionals with their experiences of vicarious trauma need to focus on what makes our legal system unique

research, we believe our New Zealand legal environment requires targeted solutions for risk-mitigation and safer practice.”

So, what constitutes work-related distress and indirect trauma and how do they manifest?

Patel says distress encompasses psychological, emotional, physical, spiritual and social wellbeing and can stem from factors such as work environment, subject matter and wider systemic factors.

“Issues that contribute to work-related distress include bullying, harassment, racism and discrimination, excessive workloads, lack of autonomy, distressing subject matter or distressed/traumatised clients, inadequate remuneration and moral distress.

“Broadly speaking, ‘indirect trauma’ in the legal context refers to the cumulative effects of exposure to clients’ trauma and/or traumatic or distressing material relating to legal proceedings and representation.”

Patel says distress and trauma can impact lawyers in a multitude of ways such as burnout, depression or anxiety, alcohol/substance abuse, addictive behaviours, social withdrawal, aggression/anger, insomnia and disruptions in core beliefs.

“These impacts can lead to difficulties with personal and professional relationships, difficulty managing boundaries with clients or errors in practice. It is also possible that work-related distress and indirect trauma contribute to the high attrition rate in the profession.”

Moral distress Patel says it’s not surprising that lawyers working in high-trauma areas such as criminal, family, refugee and asylum law have heightened experiences of indirect trauma.

She says one novel area of the research is the impact of ‘moral distress’ on lawyers.

“We consider this is highly relevant to the New Zealand legal environment. Moral distress can occur when you believe you know the ethically right thing to do, but something or someone restricts your ability to pursue the right course of action.

“Whether stemming from internal or external factors, moral distress threatens your core values. Examples of issues that may cause [it] are access to justice, lack of meaningful rehabilitation

Continued on page 09

Mar 18 2022 Issue 7

Continued from page 08

options for clients, the impacts of intergenerational trauma, discrimination or delays and timeframes for court or resolution of matters.”

Some support for lawyers is available, but it often depends on who they work for.

“Some workplaces have implemented wellness initiatives and/or access to professional supervision with a mental health professional,” Patel says.

“However, there are currently no obligations on employers or organisations to implement any support programs. This research project aims to reveal whether the level of support currently available is adequate.

“As such, we want to hear from lawyers about how effective they consider current support initiatives to be and their suggestions for other interventions and risk-mitigation strategies.”

Patel says research done in Australia in 2018 assessing the effectiveness of wellness interventions outlined three levels of interventions that workplaces or organisations may implement.

■ Primary interventions: proactive initiatives intended to eliminate or reduce job stressors in the organisation or work environment – for example, reducing job demands, improving job control and improving social support.

■ Secondary interventions: ameliorative efforts designed to alter and improve the ways individuals perceive and respond to stressors – for example, screening for stress symptoms, training programs for relaxation and anger management and cognitive behavioural therapy.

■ Tertiary interventions: reactive efforts intended to treat, compensate and rehabilitate workers with stress-related mental illness or mental health issues – for example, medical care, counselling and modification of job stressors in returnto-work plans.

“Unsurprisingly, the research concluded that primary interventions are the most effective,” she says.

“However, in many comparable jurisdictions and in New Zealand professional bodies, organisations and employers clearly prefer to utilise secondary or tertiary interventions. This is likely due to their lower cost and resourcing requirements.”

Patel says the Australian study also concluded that while wellbeing initiatives were well received, there were barriers to their uptake, such as heavy workload and fear of stigma for accessing mental health support.

“The measures were therefore seen as being tokenistic. The study concluded that the overall culture would need to change, and that actual structural change was lacking.”

Chief Judge Heemi Taumaunu

Mark Henaghan

Any New Zealand strategies for supporting legal professionals with their experiences of vicarious trauma need to focus on what makes our legal system unique.

“Our diverse cultural backgrounds, the demographics of our clients (and their unique trauma histories), the constraints of our legal aid system and the role the Law Society and governing legislation plays in regulating and supporting lawyers.

“We believe that by utilising the existing international and inter-disciplinary research and working with New Zealand lawyers we can collectively come up with meaningful solutions and strategies to tackle this issue.

“This is why it is so important to hear from as many diverse legal voices as we can to ensure our recommendations represent our legal community.

“This is an issue that needs to be addressed urgently. The legal profession in New Zealand is lagging behind other common law countries in our approach to taking care of lawyers’ health and addressing the impacts of work-related distress and indirect trauma.”

Wake-up call

Broadly speaking, ‘indirect trauma’ in the legal context refers to the cumulative effects of exposure to clients’ trauma and/ or traumatic or distressing material relating to legal proceedings and representation

Undoubtedly, the deaths of Greg King and Judge Ronayne served as a wake-up call for the New Zealand legal profession.

At the inquest into the death of Judge Ronayne, who died two years ago, clinical psychologist Jacqui Maguire said his colleagues suggested to him that he get professional help to deal with the pressures in both his personal and professional life, but he seemed reluctant.

“He saw seeking professional help as a sign of weakness that might count against him personally and professionally.”

Maguire said there was growing international evidence that those in the judiciary were at risk of experiencing heightened levels of psychological distress, anxiety, depression, secondary trauma and burnout.

She said the isolation and loneliness of the role, prolonged exposure to traumatic material, high workload, public scrutiny and the emotionally exhausting nature of the job all added to the distress being experienced.

In the five-year period before his death there was a clear timeline of cumulative stressors in his personal life, but it couldn’t be ruled out that occupational factors may have contributed to, or exacerbated, his distress.

“Whilst collegial support from Judge Ronayne’s peers was evident, a lack of formal organisational support from the District Court is noticeable,” Maguire said.

She recommended that the court consider mandatory

Continued on page 15 09

A WEEK IN THE LIFE: PART TWO OF A SERIES

A week in the life of a civil litigation lawyer Stephanie Nicolson

update these, then circulate to client and counsel as needed.

It’s implausible to me that there could be a better career in the law than civil litigation. The constants are the collegiality amongst counsel – one day your ally, the next your foe but always your learned friend – and the hallowed institution of the courthouse.

The variables are merely the causes of action and the facts.

You can have some influence over the former but unfortunately, rarely the latter.

Here is a typical week for me:

Wednesday

Monday AM We start with a staff-wide meeting of the firm via Teams. It’s useful to hear about new or tricky issues that have arisen in the commercial teams, incoming CPD, or practice updates on the social or IT fronts.

PM I have a half-day hearing tomorrow where I am second counsel to our instructed barrister. It’s an opposed application to set aside a statutory demand and we are the applicant. To prepare, I make it my business to be thoroughly familiar with the papers to anticipate any queries that may arise.

An application for media attendance at the hearing tomorrow comes in from the registrar and needs a very quick turnaround. I coordinate guidance from the barrister and instructions from the client, then refer back to previous memoranda of counsel we’ve filed on other matters to refresh my memory and plagiarise our response.

I am on hand to assist the barrister by phone during the evening as she prepares her speaking notes for tomorrow and I provide her with quick references to the law and evidence.

Tuesday AM The court appearance is by VMR, with counsel appearing from their separate locations. Being in court and testing the case with the judge is the best part of the job, without question.

Counsel and I check in with one another by phone during the morning adjournment. The decision is given by the judge (success for us!) with reasons to follow.

After a debrief with counsel, it is my job to report to the client about the hearing and search for any media reports that may have emerged.

PM My fortnightly coffee with my mentor conflicted with the morning’s hearing but rather than defer, we re-schedule to the afternoon. I’m glad I did because our chats always leave me feeling positive and inspired.

Later in the afternoon, the court issues the judge’s reasons in a minute. I am meticulous with the upkeep of my pleadings files, key events and correspondence chronology and trial calendars. I 10

Stephanie Nicolson

AM I have a 10am meeting with the defence team on another matter and this includes a cast of about a dozen: the two client directors, senior counsel, lawyers for the co-defendant, our accounting expert, my supervising partner and me.

There’s enough time before the meeting to review the key correspondence and to look at the broader action list and strategic goals. It’s hard to get everyone together all at once so I want to make the most of it. It’s a productive meeting and it takes about an hour and a half afterwards to gather up all the various action items which I can email around to the group. At the same time, it makes sense to start two or three pieces of correspondence (listed in my name on the action list) so I can get the important parts jotted down while fresh in my mind.

PM At 4pm we have client drinks with an accounting firm. The catch-up is long overdue because of lockdowns. It’s a great way to keep tabs on industry trends, share stories of interesting work – and a bit of gossip – and to touch base on various current work we have on together (and upcoming).

Thursday AM I’m grateful for my emergency wardrobe of court attire in my office when I am unexpectedly called to the 10.45am liquidations list on a brand new matter. The application is mercifully adjourned so the parties can try to work things out. That outcome was assisted by a pre-court phone call to the plaintiff’s lawyer.

PM My PA helps me to round off the formal engagement requirements for the brand new matter, including AML. Next, I have a discussion with a junior colleague about a draft pleading which raises an ethics question and ends up with both of us talking it over in the senior litigation partner’s office.

The last item for the day is our litigation team meeting where we have finally found a timeslot to discuss workloads and the team’s strategic planning over a pot of coffee.

Friday AM A colleague in the litigation team asks me to undertake some legal research into an aspect of the High Court Rules. The matter and the rule are both wholly unfamiliar to me but I map out the parties and their relationships, then dive headlong into McGechan on Procedure.

PM CPD. A glass of wine with the firm at 4pm feels well-earned as we share our stories from the week and our plans for the weekend. ■ Stephanie Nicolson is a senior associate at Lowndes Jordan (10+ years’ PQE) ■

Mar 18 2022 Issue 7

Continued from page 05

that the trustee would be so entitled. The trustee’s right of indemnity is an asset of the trust, and the trustee’s creditors are entitled by subrogation to reach this asset and so enforce their claims against the trust property.

Under the Trusts Act 2019, the common law precondition to subrogation, that the trustee was not available to have the expense of liability claimed against them, has been done away with.

And the unfairness in denying a creditor subrogation simply because a trustee happened to have lost/ impaired their right of indemnity has been mitigated where the trust still received benefit from the creditor (in this latter case, the creditor’s claim is limited to the value of the benefit received by the trust per s 86(4)).

These must be laudable changes to the law.

Enforcing the liability Turning to the advantageous position of the trust-

Continued from page 07

creditor for whom s 86 applies, they have a powerful new tool in their arsenal in terms of enforcing their expense or liability. This includes that: ■ the indemnity is proprietary in nature, such that it vests in the trustee (and now qualifying trustcreditor) a beneficial ownership interest in the trust property which has the characteristic of an equitable charge or equitable lien over that property; ■ because the interest is proprietary, it arguably constitutes a caveatable interest; ■ the indemnity affects all trust property, not just the particular property to which the expense or liability may relate; ■ the claim must be paid (together with interest calculated under the Interest on Money Claims Act 2016 (s 86(4)(a)) in priority over any payment to a beneficiary, unless the court orders otherwise (s 86(4)(b)); and ■ the claim is unaffected by the fact that the trustee who incurred the debt or expenses is no longer a trustee (s 86(5)).

At a practical level, a trust-creditor and a trustee are in starkly different positions in terms of what they can do with their right of indemnity.

As legal owner of the trust property, the trustee is the account-holder of the trust bank account, so he or she simply applies the trust property (ie, writes out a trust account cheque or electronically transfers the money) to discharge the expense or liability. If the only property is real property, then as registered proprietor the trustee may sell the property to meet the indemnity claim.

By contrast, the trust-creditor is unable to take such direct action. They are obliged to enforce their claim through the courts by seeking a declaration of their rights and applying for orders compelling application of the trust property, which may include orders to sell. ■

with the position or that the position is contrary to a view held by a majority or that the evidence begs a different conclusion.

Yet it is considered that to characterise a position as misinformation is an answer to the argument whereas in proper discourse there should be some explanation of why it is that a position may be characterised as misinformation.

opinion from a wilful attempt to mislead? And is such a move rather insulting to listeners, viewers or consumers? Should they not be able to make up their own minds and exercise their own judgement?

Neil Young has decided to remove his music from Spotify because that platform hosts John Rogan whose podcasts contain ‘misinformation’. In a general sense, the criticism of Rogan is that he has spread vaccine misinformation but sadly the detail of the misinformation is missing.

I suppose I could listen to Rogan’s podcasts to work out where the misinformation lies – if any – or if what is characterised as misinformation is in fact a statement of opinion but frankly, I have better things to do with my time.

It would have been helpful for the argument to have been clearly stated but those who throw the word ‘misinformation’ about are more concerned with expressing their disagreement than engaging with an issue in a meaningful way.

The current drive against ‘misinformation’ seems to me to be another attack on the freedom of expression and upon the ability to express views that may be contrary to those of the majority.

A justification for this is often cited as the need for ‘social cohesion’ – another term for blind conformity – but in reality it is yet another manifestation of wellmeaning but misguided ‘liberals’ who know better than everyone else what is good for them. ■ David Harvey is a retired District Court Judge ■

of something that informs – that is, knowledge of a fact or circumstances – something that misinforms and gives false or misleading information cannot be information because information must necessarily be factually true.

There are some who would say this sort of argument is pettifogging and to a certain extent I Personal interpretation would agree. Yet it is probably typical of much of the intellectual laziness that characterises discourse in Frequently, what is considered ‘misinformation’ is an these times. opinion or one person’s interpretation Frequently, what I go back to the suggestion in the of the facts. It may be that the facts first paragraph – that ‘misinformation’ is considered selected are selective and do not tell is used as a veto word. A veto word whole story. Or the interpretation ‘misinformation’ the effectively shuts down the debate. of the facts selected lacks context is an opinion In a sense it prohibits the continued and nuance. Or that there is a line of exchange of ideas. authority that refutes the basis for or one person’s To say that one is ‘offended’ is interpretation of the opinion held. a form of veto word because it fails But to dispose of a position as the facts to address the argument and often ‘misinformation’ without more is does not explain why an argument intellectually lazy and seems to suggests offence. Accusations of suggest disagreement rather than a ‘racism’ and ‘racist’ are veto words in that they do not reasoned and logical answer to a position. progress the argument and are often tantamount to in The problem is that ‘misinformation’ has become so personam attacks. misused that there seems to be a move afoot to either So it is with ‘misinformation’. The way it is used, stamp it out, eliminate it or stem its spread. without proper definition or understanding, is Many of the internet-based platforms are accused vague and imprecise. To characterise a position as of spreading misinformation. And this should be ‘misinformation’ generally means there is disagreement stopped. But how? How do you separate honest

Andrew Steele is an Auckland barrister at Princes Chambers ■

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Mar 18 2022 Issue 7

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Drafting complex wills (online)

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LIVESTREAM

Mar 18 2022 Issue 7

Continued from page 09

professional supervision on a regular basis, at least once a month.

She also suggested that all court staff undergo mental health awareness training, and all senior officers complete wellbeing conversation training to enable them to raise wellbeing concerns when necessary.

Chief Justice Dame Helen Winkelmann and Chief District Court Judge Heemi Taumaunu later issued a joint statement agreeing that the reviews suggested by Maguire were necessary.

“Our judges manage high workloads, and many are exposed to distressing material,” they said. “It is therefore important that as heads of bench we find ways to mitigate the stressors that inevitably come with the role.”

Both said reviews were already well underway such as a judicial wellness program, Mauri Tu, which was introduced in district courts late in 2020 to support the mental health and wellbeing of judges.

Since then, all heads of bench have agreed in principle to adopt this program in some version across all benches.

In addition, a mentoring program, Tuakana Teina, has been introduced with all district court judges appointed since the start of 2019 being asked to nominate an older judge who will support them.

Massive workload Auckland Law School professor Mark Henaghan told LawNews he is aware of lawyers who have taken their lives largely as a result of workplace stress.

And he’s in no doubt that stress and trauma played a major part in the death of Greg King, whom he knew well.

Greg King

It is possible that workrelated distress and indirect trauma contribute to the high attrition rate in the profession

“At Greg’s funeral, all the speakers from the Criminal Law Bar spoke of the massive workload, the stresses and the need to look after each other more,” Henaghan said.

“Trials are brutal affairs, where there is very little sleep in order to keep on top of everything for the next day in court. I don’t think it’s solely about personalities. Everyone is capable of going into a dark place when there is too much stress with no one to talk to and give support to them.”

Henaghan says stress is a recognised problem within the profession and law schools.

“Both run programs and raise awareness about the issue of work stress that can come in many forms – harassment, bullying, too much work, no support. The extent of the problem is probably higher than we think as generally people don’t like to talk about it as they think it would show weakness.”

However, Henaghan says programs take people only so far.

“The key is regular contact and checking in. If everyone had a mentor or regular check-in person who they fully trusted, who they could talk with on a regular basis on how they really feel, that would make a big difference. There are pockets of this, but it needs to become an essential part of being a lawyer or a judge.

“The bottom line is that in a good culture we all should be keeping a watch out for each other as at any time unexpected events can rock wellbeing very quickly.

“We have to be more vigilant about our own wellbeing and the wellbeing of all those around us. It’s an ongoing issue that can’t be fixed simply. It needs multiple approaches and multiple awareness.” ■ The Law in Distress research project is open for participation until 28 March 2022.

You can find out more and sign up to participate here ■

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The book outlines the legal frameworks in place before the pandemic arrived, the way the legal powers set out in these frameworks were used from January 2020 onwards and how new law was developed.

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PRACTICE FOR SALE OR MERGER

WILL INQUIRIES

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

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

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

(09) 303 5270

BUTLER Paul Patrick

JONES Margaret Elsie

• Late of 577 Hot Water Beach Road, Hot Water Beach • Never in a legal relationship • Self employed • Aged 60 / Died 30’01’22

• Late of 28 Springbok Avenue, Whitianga • Married • Homemaker • Motelier developer • Aged 85 / Died 12’01’22

DAVIES Paul Brett • Late of Northpark, Auckland • Architect • Aged 66 / Died 26’06’21 DOUGLAS Jayne Louise • Late of 116/81 Mapou Road, Hobsonville, Auckland • Single • Office administrator • Aged 53 / Died 04’02’22 FERGUSON Alice Joyce • Late of Te Awamutu • Widow • Retired • Aged 94 / Died 28’12’21 FINLAYSON Verina Fraser (Fay) • Late of Whitianga Continuing Care, 6 Halligan Road, Whitianga • Married • Housewife • Aged 89 / Died 27’12’21

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Fax: (09) 309 3726

KHAN Muhammad Shams-UdDean Sahu • Late of Stonefields, Auckland • Aged 81 / Died 14’07’21 NG Tai Pong • Late of 7 Matterhorn Crescent, Northpark, Auckland • Education officer • Aged 75 / Died on or about 12’12’21 ZUPANCICH Milan • Late of 45 Great South Road, Takanini, Auckland • Never married or in a legal relationship • Self employed • Aged 63 / Died 12’10’21

• • • • • •

North Shore base but with clients on both sides of the bridge Plenty of potential Requires an efficient enthusiastic practitioner(s) Assistance available to the right person(s) Genuine opportunity to go out on your own with low overheads Flexible options available Reply in confidence to: advertiser@adls.org.nz ref: NS03

Senior 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.

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.

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.

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.

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Mar 18 2022 Issue 7

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 coming soon.

T 09 303 5278

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