At the Bar - September 2021

At The Bar September 2021

Balancing parenting and practice Getting cybersecurity right America's Cup Defence a moral dilemma

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p9 YOUR ASSOCIATION 4 From the President – Paul Radich QC 6 NZBA Council 2021 - 2023 12 New Members of the NZBA

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LEGAL MATTERS 9 2021 QC Round 19 Resolving Construction Disputes – Is adjudication a

good option?

22 Access to Justice in New Zealand – Advancing what's possible 24 The Devil is in the Detail – The deadly sin of failing to proof-read PRACTICE AND LIFESTYLE 13 Balancing the Scales – Parenting and practising 16 Cybersecurity – What you need to know 25 Made For Today a Century Ago 28 Manaakitanga – More than just hospitality 29 How To Prepare For a Natural Disaster 31 To Be Fair – Confessions of a District Court Judge 32 September 11 – 20 Years On – How the aftermath of

9/11 may affect New Zealand 33 Petrol Heads’ Corner – Expensive moments and

whoopsie moments 35 Events

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The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association.

EDITORIAL COMMITTEE David O’Neill - Editor-in-Chief Jacqui Thompson (Editor) Lisa Mills (Compilation and advertising) Barbara Relph (Copy editor)

DESIGN AND LAYOUT BY Kirsten McLeod Hot Lobster Design Tel: +64 9 834 2224 Email: kirsten@hotlobster.co.nz

NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140

From the President Paul Radich QC*

Kia ora koutou.

Legal aid was first available in New Zealand through the introduction of the Justices of the Peace Amendment Act 1912, which made aid available for criminal offences. The system was enhanced with the passage of the first Legal Aid Act in 1939 which authorised the New Zealand Law Society to “establish committees and panels of legal practitioners for the assistance of poor persons”.

The Act enabled the profession itself to authorise the provision of legal aid to those members of the public who needed it. Applications were made through District Law Societies and, if accepted, the local Law Society would arrange for a lawyer to represent the applicant.

In 1954, the authority to approve legal aid in criminal cases was given to the courts through the Offenders Legal Aid Act. Aid would be provided if, in the opinion of the court, “it is desirable in the interests of justice to do so”. The court would assign a lawyer, who was to be paid at the “going rate”, which was the same rate as that which would have been paid if the lawyer had been representing the prosecution.

Through the Legal Aid Act 1969, responsibility for the administration of legal aid was transferred to a new Legal Aid Board and to District Legal Aid Committees.

The Legal Services Acts of 1991, 2000 and 2011 extended the types of proceedings for which aid is available. But now, relative legal aid rates are at an all time low. The rates have increased by 37% since 1992 while, over that same period of time, inflation has seen a 94% increase in the costs of goods and services.

Of the nearly 15,000 lawyers in New Zealand there are just, for example, 302 providing legal aid at the PAL4 level and there are just 164 civil legal aid providers.

Numbers are higher in some areas, such as family and mental health, but there are gaping holes in coverage for people needing representation.

As the New Zealand Bar Association’s 2018 Access to Justice Report – Āhei Ki Te Ture - highlighted, funding for legal aid in the criminal, family and civil areas has dropped materially. Similarly, income thresholds for those eligible to obtain aid and legal aid rates have been lowered and constraints have been introduced in the way that fees are calculated. The thresholds are such that there is a significant pocket of New Zealanders who do not qualify for legal aid but who cannot afford legal services.

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The Bar Association, through its Advocacy Committee and under the guidance of Maria Dew QC and Felix Geiringer, is focused on the issue. Increases in rates and thresholds, which had been hoped for as a part of the 2021 budget, did not come to pass. We are working for change in the next budget round - in the interests of those who need, but are not able to attain, access to justice through constraints in the legal aid scheme.

The New Zealand Law Society’s access to justice survey, which will have reached you recently, will form a material plank in building the evidence that is needed to advocate for improvements. At the Bar Association, we are gathering a range of data from the Ministry, gathering information on the delivery of legal aid services in the marketplace and are meeting with senior Ministry officials, ahead of meetings with Ministers, in an endeavour, alongside the Law Society and with the support of other professional organisations, to make a real difference over the next year. We will bring you regular updates.

As we grapple with this and a range of other local issues, such as the operation of the courts at alert levels 3 and 4, our attention has been drawn across the Indian Ocean and the Arabian Sea to the distressing events in Afghanistan where lawyers and judges face threats, not just to access to justice, but to their lives.

As I said in my column in our 2 September Member Update, not all of us are in a position to help and many of us, who are watching the situation unfold, will be exhausted already by a feeling of helplessness. While no one should for a moment feel compelled to take steps that they are not in a position to, or are not ready to take, for those who can, helping just one person can make a real difference. Our webpage at nzbar.org.nz/ news/support-colleagues-afghanistan contains ideas on ways in which you can help.

The International Bar Association’s Executive Director, Dr Mark Ellis, said this week: The Taliban has uttered assurances to the world including that ‘women’s rights will be respected’.

However, the language is vague and it is likely that different provinces will institute their own interpretations of this and other guarantees. The gains achieved to date in Afghanistan towards the genuine expansion to a more inclusive society require continued adherence to international human rights principles, including those found in the International Covenant on Civil and Political Rights.

These guarantees must not be allowed to simply disappear.

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However, as the International Bar Association’s Human Rights Institute has said, those who have been carrying out their duties as lawyers and judges are now at grave risk of reprisal and are facing a material risk of persecution.

Moreover, as the Hon Michael Kirby AC CMG said recently: The international community bears a legal responsibility to ensure the safe passage of refugees fleeing Afghanistan and that none are forcibly returned as failed asylum seekers, in adherence to the principle of non-refoulment.

A little further north, Russia is preparing to hold its parliamentary elections this month. However, new laws which have banned ‘extremist’ organisations from running for office, and related measures, have seen opposition leader Alexei Navalny and many others, detained, fined or placed under investigation, renewing fears that fundamental freedoms are being curtailed dramatically ahead of voters going to the polls. In 2016, the ruling United Russian Party (Yedinaya Rossiya) won 54.2% of the vote. Poll predictions suggest the ruling party faces a material risk of defeat at the ballot box, something which would affect the operation of the presidency in a practical sense but wouldn’t threaten the President’s leadership.

As we widen our lens to look at events on a global basis, a pattern of legal action can be seen against governments, and even companies, on climate change obligations. In Notre Affaire à Tous v France (No 1904967, 968, 972, 976/4-1) the Administrative Court in Paris found the French Government was liable under French and EU law for not taking enough action to meet its commitments to reduce greenhouse gas emissions. In a similar vein, in Neubauer, et al v Germany (BvR 2656/18/1), Germany’s Federal Constitutional Court found that Government measures to combat climate change were insufficient to protect future generations and that emission reduction targets were set too far into the future and would not meet the objections laid down in the Paris agreement.

And, in Australia, in Sharma and Ors v Minister for the Environment [2021] (FCA 560) eight Australian children sought a declaration that there was a duty of care on the Government not to cause them harm relating from coal extraction and carbon emissions. The Court found that a duty of care of that kind did exist and that the potential for harm to the children was a mandatory consideration when determining whether to approve projects such as the extension of a coal mine in New South Wales.

If those cases are seen to be breaking new ground, then a recent decision of the Hague District Court can be seen as something of a seismic shift. In Milieudefensie et al v Royal Dutch Shell PLC (C/09/571932/HA ZA19/379), it was found that corporates such as Shell have human rights responsibilities and that Shell, specifically, must reduce its carbon dioxide emissions by 45% from 2019 levels by 2030 to help ensure that global warming is limited to 1.5 degrees centigrade.

The inclusion of the private sector in international moves to reduce global warming is reflected also in our new financial sector (Climate Related Disclosure and Other

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Matters) Amendment Bill, which will amend the Financial Market’s Conduct Act 2013 and other legislation by requiring the making of climate related disclosures by FMC reporting entities. The Bill is based on the idea that financial markets will help contribute to the economic transformation needed to shift investment away from emission intensive activities towards those that are more resilient and produce lower emissions.

International and global issues such as these can be challenging to contemplate when we are facing ongoing alert level restrictions. We are truly disappointed that we are not able to bring you our Annual Conference this month or to enjoy your company at the Auckland Silks dinner and at regional Bar Association gatherings that were scheduled for this month and early next. But, as much as our world is inconvenienced at the moment, we might spare a thought for those across Latin America and the Caribbean where more than one million people have died from Covid-19. We are fortunate to have a society and an economy that can cope with a lockdown and a health system that can manage and respond to a pandemic.

Despite the lockdown, we do hope you have been enjoying our free online seminar series. Our most recent webinar – on opening addresses and leading evidence in criminal trials – enjoyed a significant turnout and presentations from Marie Dyhrberg QC, Julie-Anne Kincade QC, Gareth Kayes and Iswari Jayanandan have received overwhelming feedback.

Moreover, our thanks to those of you who joined us at our AGM on 10 September. My report for the AGM on the Bar Association’s activities over the last year has been distributed by email and can be found on our website, alongside our financial reports for the year.

Moreover, at the AGM I was delighted to announce the election, each for a two-year term, of our new Council members. Their profiles are provided over the next few pages. The contribution made by our Council members is extraordinary. I extend a warm welcome to Maria Dew QC, our President Elect, Victoria Casey QC and Genevieve Haszard. And we bid a fond farewell to our wonderful past President, Kate Davenport QC, to David O’Neill who has been the Association’s Treasurer since 2015 and has managed the Association’s financial affairs so capably during such difficult times, and to Esther Watt, who’s abilities and wisdom have made a real difference. We also farewell Quentin Duff, who has helped us with criminal matters and understanding te ao Māori concerns - he has been a calm and reflective voice. We welcome back, warmly, to the Council Simon Foote QC, Anne Toohey, Philip Cornegé, Felix Geiringer, Taryn Gudmanz, James Rapley QC, Richard McGuire, Tiho Mijatov and Setareh Stienstra. I look forward to being able to farewell and welcome our Council members more appropriately, in person, at our conference on 5 and 6 November. Until then, my very best wishes to you all.

Noho ora mai *Paul Radich QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email him via president@nzbar.org.nz

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NZBA Council 2021 - 2023 PAUL RADICH QC President (Wellington) Paul served as a Council member from 2015 to 2018 and re-joined the Council in 2019 as President Elect, before taking over the presidency in October 2020. Paul has been active in the access to justice field. Together with Maria Dew QC and Felix Geiringer, he has been advocating for legal aid reforms including increasing rates for counsel to make undertaking this work feasible.

Paul has been working actively with Council members to build an understanding of Te Ao Māori into our activities, so that members can prepare for the changes we are already experiencing. A considerable portion of his time, however, has been spent with the Courts and the Ministry of Justice in trying to develop better pathways in civil and criminal justice. This work has become critical during the recent Covid 19 lockdowns. Paul led the initiative to gain an exemption for barristers under the AML/CFT regime, which was obtained successfully earlier this year. He is focused on the regular scheduling of educational and collegial events for members so that issues for members, and the bar as a whole, can be discussed actively and so that camaraderie at the bar can be enhanced.

VICTORIA CASEY QC (Wellington) Victoria was elected as a Wellington representative in September 2021.

She has previously served as the Chair of the Law Society’s Human Rights Committee, presented on numerous aspects of public and administrative law, and provided pro bono representation on matters of public interest.

Victoria recognises the importance of the Bar Association providing collegial support as well as professional leadership, and has a special interest in supporting junior members of the Bar to progress in ways that work best for them. She believes that acknowledging the value of non-traditional career paths will help improve the diversity of the profession.

She also wants to focus on the Association’s support of our colleagues across the South Pacific as they work to strengthen respect for human rights and the rule of law.

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PHILLIP CORNEGÉ (Waikato/Bay of Plenty) Phillip is in his second term on Council. Phillip has been a member of the NZBA Education Committee for some time, as well as serving on its Technology Committee.

He conducts training for the Association on running paperless hearings and helped with the redrafting of the Senior Courts revised 2019 Electronic Document Protocol.

Aside from his interest in technology, Phillip had been working alongside former Treasurer David O’Neill on finance matters. The Association has been working on strengthening its financial procedures and ensuring that they meet best standards.

Phillip has a particular interest in the reform of Legal Aid, and is acting for the Association (with Felix Geiringer) as intervener on an appeal about the scope of legal aid payments.

MARIA DEW QC President-Elect (Auckland) We welcome back Maria back to the Council, this time as our President-Elect. Maria will take over the presidency on 1 October 2022. She was last a member of the NZBA Council in 2018. Maria is well known to members, not just through her expertise in employment law and inquiry work, but also through the mahi she does in championing access to justice issues.

Although Maria took a brief break from the Council, she has continued to work with NZBA over the last two years as the current co-chair of the Advocacy Committee and the former Access to Justice Working Group.

Maria returns to the Council with the aim to assist the Bar Association as it continues its important work supporting barristers’ independence, specialist skills and growing the diversity of the bar. “The rule of law and access to justice issues that can challenge all lawyers are often seen first-hand by barristers, so we do have a collective knowledge that we can use to seek reform and to support each other in practise through NZBA”.

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DR SIMON FOOTE QC (Auckland) Simon is a barrister at Bankside Chambers in Auckland with a commercial litigation and arbitration practice. He went to the Bar in 2002, prior to which he worked at major firms in Wellington, Auckland and London, and as a Crown Prosecutor in Palmerston North. He has been Chair or Deputy Chair of the Organising Committees for the 2014 World Bar Conference at Queenstown and the NZBA Conferences from 2015 - 2021. Simon also chairs the Membership Committee and participates as an advocacy trainer in the NZBA Mastering Advocacy Faculty. Simon was appointed silk in December 2019 and completed a PhD in international law in 2020.

FELIX GEIRINGER (Wellington) Felix joined the Council in 2019.

He has been an active member of several Association committees and this year became co-chair of the Advocacy Committee. Felix has a broad practice based in Wellington.

He has been involved in highprofile cases, particularly in the fields of commercial law, defamation, human rights, trusts, and Te Tiriti o Waitangi. Felix previously worked for Clifford Chance (London) in its banking regulation team. He was also called to the bar in England as a member of Lincoln’s Inn and worked at the well-known human rights set, Doughty Street Chambers. He has made several appearances in the New Zealand Supreme Court and the Privy Council.

TARYN GUDMANZ (Otago) Taryn is a Dunedin-based civil litigator, who joined the independent bar in 2016. She was also admitted in England & Wales. In addition to general commercial litigation, Taryn undertakes inquisitorial work and is an accredited mediator.

Taryn is also the President of the NZLS Otago Branch. Taryn believes that collegiality is vital for the independent bar; it offers an important support network for practitioners. She thinks it is essential that the Council keeps improving the resources available in this area. Taryn says that the NZBA also offers an important voice on matters of significance to the profession, the public and the rule of law and this should continue to be a focus for the Council.

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GENEVIEVE HASZARD (Waikato/Bay of Plenty) Genevieve joins the Bar Council in October 2021 as one of two representatives elected for the Waikato/Bay of Plenty District.

Genevieve is also the elected branch council representative for Tauranga on the Waikato/Bay of Plenty Branch of the New Zealand Law Society.

In addition to these representative roles in which Genevieve is able to be a voice for members practicing in Tauranga and wider region, her NZ Bar Council role also allows her to contribute to the broader functions and work of the Association. Genevieve is particularly interested in assisting with the work of the Bar Council in upholding the rule of law, law reform in the area of criminal and family law and practical ways to improve access to justice and the legal aid framework. In addition, Genevieve is an advocate for the continued development of a positive culture of practicing well and ensuring our members remain resilient and healthy.

RICHARD McGUIRE Associate Member Rep (Canterbury) Richard has been with the Public Defence Service since 2011. Prior to this time, he was a director in a firm in Christchurch where he had a general practice including a focus on criminal defence law, and family law. He held appointments as lawyer for child and as a youth advocate. He is a former President of the Canterbury Criminal Bar Association. Richard is a member of the NZBA Criminal Committee, Membership Committee and the Access to Justice Committee.

TIHO MIJATOV (Wellington) Tiho is a barrister at Stout Street Chambers, Wellington. He has experience in a wide range of commercial, public law, criminal and disciplinary matters and regularly appears in courts at first instance and on appeal. Tiho has been involved with the NZBA for several years, including preparation of legal submissions for the NZBA’s intervention in court cases; law reform submissions on matters as varied as access to justice civil reforms, evidence, and professional rules; and guidance on public comment and media statements on rule of law issues.

Tiho looks forward to the NZBA continuing to promote the practice of law at the independent bar.

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JAMES RAPLEY QC (Canterbury) James joined the independent bar in 2004 and was appointed a Queen’s Counsel in 2018. He specialises in criminal defence litigation and has appeared in numerous highprofile trials and regularly appears in the Court of Appeal. He has been a member of our Training Committee for some years and is its Co-Chair. James is the criminal stream Course Director for the NZBA’s Mastering Advocacy Programme. He is also the Director of the 2022 NZLS Litigation Skills course and has been a faculty member since 2006. Since 2003 he has taught Trial Advocacy at the University of Canterbury. James has also taught Trial Advocacy overseas at the University of South Pacific, Vanuatu, for PILON in Samoa and for the ABA in Sydney and Melbourne. James is a member of the Legal Advisory Services Board and is a panellist on the Racing Integrity Board Appeal Tribunal panel.

James hopes to bring to the Council thoughts and views from the mainland as well as promoting, improving and supporting our members’ ongoing legal education.

Having decided to learn te reo Māori he is very keen to encourage the NZBA and its members to join him and so many others in incorporating te ao Māori into their legal practice.

SETAREH STIENSTRA (Auckland) Setareh is a barrister and a member of Kate Sheppard Chambers. She appears in various courts and tribunals regularly across New Zealand. She is a skilled trial and appellate advocate, specialising in public law, regulatory compliance, environment and property. She has represented public sector agencies, corporate clients, iwi and hapu trusts, and private individuals.

She has been involved in a number precedent setting cases in the areas of resource management and local government.

Prior to joining the independent bar in 2014 Setareh was a senior practitioner at two leading national law firms, Dentons Kensington Swan and Simpson Grierson.

Setareh enjoys working with the legal profession’s voluntary bodies. She is an elected member of the Executive of the NZLS Property Law Section and the ADLS Environment and Local Government Committee.

In 2019 Setereh was elected to the Council of the New Zealand Bar Association (NZBA). She has been reelected for her third term in 2021. Her goals for this term on the NZBA Council are two fold. Firstly, Setareh would like to continue her work on inclusivity in the

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legal profession. Secondly, to promote inclusivity, she would like to work on an evolution of the mentoring system we have in place. She would like to see a focus on mentoring for those who are first generation lawyers in New Zealand and to create support structures that involve more than one mentor. She is keen to hear from all barristers on these two projects.

ANNE TOOHEY (Canterbury) Anne is a barrister at Canterbury Chambers in Christchurch and has a general practice in civil, employment and criminal litigation. Prior to joining the independent bar, she worked from admission in 1996 as a civil and criminal litigator.

Anne is currently a senior counsel assisting to the Royal Commission for Abuse in Care, leading the investigation into state residences. She is a panel prosecutor for the Serious Fraud Office, conducts criminal appeals, and is appointed as a counsel assisting in coronial, civil and criminal matters.

This is Anne’s third term as a member of the Council.

She wants to continue to work hard to promote the Bar as a career option, to work on training initiatives, mentoring, gender equity in briefing, and contributing to law reform. "Barristers face different professional issues, and it is important that we are represented with the Heads of Bench, government, and NZLS". The NZBA is consulted on a plethora of issues, including changes to the NZLS conduct rules, court rules, and the daily practical challenges of litigating in lockdown.

There is much work behind the scenes to ensure that the Bar is a rewarding career for all who practice as barristers, that the independence of the profession is maintained.

Anne is a member of our Annual Conference Committee, Diversity Committee and Management Committee.

OFFICERS AND CO-OPTED COUNCIL MEMBERS Our Rules of Association allow the Council to co-opt up to five members to the council to meet certain needs.

Co-opted members will be appointed when the new Council meets for the first time in October.

The Council will also appoint the office holders, including the Vice-Presidents, Treasurer and Secretary, at that meeting.

If you have any questions, please contact our Executive Director via our website contact form at https://www.nzbar.org.nz/contact-nzba.

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2021 QC Round Barbara Relph*

Less than 1% of those admitted as lawyers in New Zealand have been appointed Queen’s Counsel. Highly respected across the legal industry, the title recognises excellence in law and a commitment to the profession.

The first 12 appointments in New Zealand were made in 1907. At that time, as now, the location of appointments was considered, so it is no surprise that more appointments are made in Auckland than elsewhere in the country.

Annual appointments continued to be made, but almost 100 years passed before so many appointments were made at one time again. The most appointments in any one year was in 2013 with 26 new QCs, following a period of five years without a round of appointments.

During this period, New Zealand briefly entertained the title Senior Counsel, or SC, and seven Senior Counsel were appointed. In a further break with the rank, litigators in law firms and Crown Law were invited to apply. This change did not meet with the approval of the profession. When the QC title was reintroduced in 2013, those who had been appointed Senior Counsel chose to revert to the QC title.

The extension of the title to those in law firms was also rescinded. In order to qualify, applicants must appear at the independent bar and not be members of firms. The return to the original criteria was welcomed by the bar.

However, there have been several appointments under the Crown’s prerogative, including some of the best academic lawyers in New Zealand.

The first women to attain the rank, Dame Sian Elias (later to become Chief Justice) and Dame Lowell Goddard, were appointed in 1988. The percentage of successful women applicants out of the total pool of

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successful applicants was 23% in 2017, and 50% in 2018 and 2019. There were no appointments in 2020, and this year four of the ten successful applicants were women.

It is more than 65 years since the last King’s Counsel was appointed, and with the Queen having just turned 95, it may not be long before we are appointing King’s Counsel again under King Charles or King William. This is believed to be the only honour to reflect the gender of the monarch, and when that changes, all QC’s will become KC’s. Luckily most stationery these days is electronic!

Once the application period ends, the process for appointment is rigorous, as is outlined on the NZBA website. Appointment is for life, and almost 30% of appointments have historically gone on to become members of the judiciary.

The overarching qualifications for appointment is excellence, including length and depth of experience.

Candidates must also show knowledge of the law, superior skill in oral and/or written advocacy, independence in devoting themselves to their clients' interests, integrity and honesty in all dealings, and leadership in setting and maintaining the standards of the profession. In 2019, a new criterion was added.

Candidates are expected to demonstrate a commitment to access to justice. Appointment tacitly anticipates engagement with the profession will continue after appointment.

Congratulations to the ten 2021 QC appointees. * Barbara is a professional writer, editor and proof-reader – www.barbararelph.com.

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The 2021 Silks On 24 June 2021 Attorney-General David Parker announced the appointment of 10 Queen’s Counsel. The NZBA congratulates the new silks. The following biographical material was taken from the Attorney’s media release.

Lynda Kearns (Auckland) Lynda Kearns graduated with an LLB (Hons) from Victoria University in 1980 and was admitted to the bar in 1981.

She began her career as a law clerk at Langley Twigg Solicitors in Napier, before joining Chapman Tripp in 1981 as a litigation staff solicitor.

In 1984 she moved to London and worked as an inhouse legal adviser. She returned to New Zealand in 1985 to work at Simpson Grierson as a senior staff solicitor heading the family law team. Ms Kearns then worked in specialist family law firms, first Pratt & Co, then becoming a partner at Gubb & Partners from 1994 to 2003. Since then, she has practised as a specialist family law barrister from Bastion Chambers in Auckland, primarily focusing on relationship and trust property cases. She is one of six New Zealand members of the International Academy of Family Lawyers, an associate member of AMINZ, and a member of the NZLS Family Law Section.

Stephen McCarthy (Auckland) Stephen McCarthy graduated with an LLB from Auckland University in 1981 and was admitted to the bar the same year. Between 1981 and 1984 he worked as a litigation solicitor in Auckland at Sellar Bone & Partners and then Sheffield Young & Ellis. He moved to Price Voulk Brabant & Hogan (later Price Voulk McCarthy) in Manukau in 1984 and became a partner the following year. His practice was solely litigation involving family, civil and criminal cases.

From the time that lawyers became regularly involved in mental health cases, in the mid-1980’s, Mr McCarthy represented mental health patients in the District Court and before the Mental Health Review Tribunal. He was convenor of the (then) Auckland District Law Society Mental Health and Disability Law Committee in 1993 and 1994. He was also involved in advising immigration clients and between 1991 and 1998 he taught a master’s degree course in Immigration Law through the

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Department of Commercial Law at Auckland University.

Mr McCarthy also appeared for refugee applicants before the Refugee Status Appeals Authority.

Greg Arthur (Wellington) Greg Arthur graduated with an LLB and a BSc from Victoria University in 1986 and an LLM from University of London, King’s College in 1990. He became a registered patent attorney in 1988. He started at AJ Park & Son as a trainee patent attorney in 1986 and, aside from his master’s study in London, remained there until 2014, including 22 years as a partner and seven years as managing partner. He commenced practice as a barrister sole in 2014 and practises from Clifton Chambers in Wellington specialising in intellectual property litigation.

Mr Arthur is a member of the Intellectual Property Society of Australia and New Zealand and the NZLS Intellectual Property Law Committee, and a fellow of the New Zealand Institute of Patent Attorneys.

Ronald (Ron) Mansfield (Auckland) Ron Mansfield graduated with an LLB and a BCom from the University of Otago in 1989 and was admitted to the bar the following year. From 1989 to 1994 he worked as a Crown prosecutor at Preston Russell Law in Invercargill, before moving to Meredith Connell where he stayed as a Senior Crown Prosecutor until 1998. He then worked in civil litigation as an Associate at McElroys in Auckland before going to the independent bar in 2000, where he has practised primarily in criminal defence, although still a member of the Auckland and South Auckland Crown Solicitor panels. Mr Mansfield was a co-author of the first edition of Criminal Procedure in New Zealand. He is a member of the New Zealand Bar Association, the Criminal Bar Association, the Human Rights Lawyers’ Association Aotearoa New Zealand and a founding committee member of the newly formed Defence Lawyers Association.

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Michael Colson (Wellington) Michael Colson graduated with an LLB and a BCA from Victoria University in 1991 and was admitted to the bar the same year. He began working at Bell Gully in 1991 as a litigation solicitor. He spent two years in London at Herbert Smith between 1994 and 1996, before returning to Bell Gully where he became a litigation partner in 2001. In 2017 Mr Colson went to the independent bar and has practised from Stout Street Chambers in a range of commercial and public law litigation including insolvency, property, negligence, energy, and te Tiriti and iwi-related work.

Victoria Heine (Wellington) Victoria Heine graduated with an LLB (Hons) from Victoria University in 1992, after having completed a BSc in 1989. She obtained an LLM from the University of Chicago in 1997 on a Fulbright Scholarship.

She was admitted to the bar in 1993 and worked as a litigation solicitor at Russell McVeagh until 1996. On her return from Chicago, she worked as a junior barrister until joining the partnership at Chen Palmer in 2002. From 2005 to 2018, Ms Heine worked at Chapman Tripp, including ten years as partner and four years on the board, including as deputy chair and chair. Since 2018 she has practised from Thorndon Chambers specialising in commercial litigation.

Kerryn Beaton (Christchurch) Kerryn Beaton graduated with an LLB from the University of Otago in 1995 and was admitted to the bar the same year. She worked at Eagles, Eagles & Redpath in Invercargill from 1996 to 1998 and then at Preston Russell Law as a Crown prosecutor until 2000. She then travelled to the United Kingdom and worked at the Environment Agency of England and Wales between 2000 and 2001. From 2002 to 2011, Kerryn worked at Raymond Donnelly in Christchurch as a Crown prosecutor. She was seconded to be Counsel Assisting the Royal Commission of Inquiry into the Pike River Coal Mine Disaster and continued in that role once she joined the bar later in 2011.

From 2012 to 2014 she was the Deputy Public

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Defender for Christchurch at the Public Defence Service. Ms Beaton was then appointed by the United Nations to provide assistance to the Khmer Rouge Trials in Cambodia. On her return to New Zealand in 2016 she recommenced her practice as a barrister sole in Christchurch specialising in criminal defence and in 2018 was an establishing member of Walker Street Chambers. Since 2019 she has worked as Senior Counsel Assisting the Royal Commission of Inquiry into Abuse in Care.

Ms Beaton serves on Te Kāhui Tātari Ture/Criminal Cases Review Commission’s interim panel of specialist advisors. She is a member of the New Zealand Bar Association, the New Zealand Criminal Bar Association, the New Zealand Defence Lawyers Association, the Canterbury Women’s Legal Association, and the Australian and New Zealand Association of Psychiatry, Psychology and Law.

Alan (Fletcher) Pilditch (Auckland) Fletcher Pilditch graduated with an LLB and a BA from Victoria University in 1994 where he also worked as a tutor and research assistant during his studies. He was admitted to the bar in 1995, after which he travelled to London where he worked as a litigation paralegal at Ashurst Morris Crisp between 1996 and 1998. On his return to New Zealand, he worked as a Crown prosecutor at Davys Burton in Rotorua from 1998 to 2001, and then at Meredith Connell until 2005. During this time, he was admitted to the Pitcairn Island Supreme Court and conducted trials off and on the island between 2003 and 2005. Mr Pilditch was appointed Crown Solicitor for Rotorua in 2006.

In 2014 he moved to the independent bar and was a founding member of Richmond Chambers in Auckland, where he specialises in criminal, regulatory and public law. In 2019 he was appointed Senior Magistrate of the Pitcairn Islands. He is a member of the New Zealand Bar Association and the Auckland District Law Society. He was the inaugural convenor of the ADLS Health and Safety Committee, of which he remains a member.

Davey Salmon (Auckland) Davey Salmon graduated with an LLB (Hons) in 1994 and was admitted to the bar in 1996.

After four years in a firm, he went to the bar in 1999. He was a founder and partner of LeeSalmonLong from 2002 until 2019. He returned to the independent bar in 2019

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and joined Mills Lane Chambers, where he practices primarily in civil litigation, particularly commercial, environmental and media law as well as arbitration.

Laura O’Gorman (Auckland) Laura O’Gorman graduated with an LLB (Hons) and a BCom from the University of Auckland in 1996 and was admitted to the bar in 1997. She completed an LLM from the University of Cambridge in 1999, assisted by a Link Foundation Chevening Cambridge Scholarship and a

Spencer Mason Travelling Scholarship. After spending three months in the intellectual property and litigation departments at Drew & Napier in Singapore, she worked at Buddle Findlay in Auckland from 1996 to 1998. On finishing her LLM at Cambridge, in 2000 she worked in commercial litigation at Carey Olsen Jersey LLP in the Channel Islands. In 2001 she returned to New Zealand and to Buddle Findlay, where she remained until 2019, including 14 years as a partner.

She then joined Bankside Chambers, where she specialises in commercial litigation. She is a member of the Rules Committee, the Restructuring, Insolvency and Turnaround Association of New Zealand, the Auckland Women Lawyers’ Association, the Legal Research Foundation and the Auckland District Law Society.

New Members Simon Barber

AUCKLAND

DeAnne Brabant

WELLINGTON

Anna Casey

AUCKLAND

Tania Cook

CANTERBURY

Nikki Foulis

AUCKLAND

Nichola (Nickie) Franklin

BAY OF PLENTY

Dr Reginald (Reg) Newell

WELLINGTON

Dhilum Nightingale

WELLINGTON

Kila Pedder

HAWKES BAY

Semisi Pohiva

WELLINGTON

Matthew Prendergast

CANTERBURY

Glen Prentice

WAIKATO

Jarrod Griffin

AUCKLAND

Dilrukshi (Dilki) Rajapakse

Josh Hansen

AUCKLAND

Tui Scott

CANTERBURY

Susan (Sue) Shone

WELLINGTON

Julia Hayes

WELLINGTON

Samantha (Sammy) Hegotule

AUCKLAND

Caroline Hickman

HAWKES BAY

Henry Holderness

CHRISTCHURCH

Jonathan Hudson Megan Jacquiery Sarah Keene Kathryn Lellman

AUCKLAND

Nicole Smith

BAY OF PLENTY

Nicholas (Nick) Swallow

BAY OF PLENTY

Samira Taghavi

AUCKLAND

AUCKLAND

Alison Todd

AUCKLAND

MANAWATU-WANGANUI

Lucy Tothill

AUCKLAND

Matthew (Matt) Toulmin

AUCKLAND

Lula Tu'i

AUCKLAND

AUCKLAND BAY OF PLENTY

Michelle Lomax

CANTERBURY

Jamie-Lee Tuuta

CANTERBURY

Alexandra Low

AUCKLAND

John (Mark) von Dadelszen

HAWKES BAY

Mary-Anne Lowe

AUCKLAND

Philippa (Pip) Walker

Marie (Mel) Maplesden

AUCKLAND

Elizabeth (Lizzy) Wiessing

OTAGO NORTHLAND

Annabel Markham

WELLINGTON

Geoffrey Wiles

AUCKLAND

Robert (Rob) McDonald

CANTERBURY

Timothy (Tim) Wilkinson

AUCKLAND

Louise Meredith

AUCKLAND

Leslie (Les) Willetts

Patrick Muligan

AUCKLAND

Shannon Withers

AUCKLAND

CANTERBURY

Madeleine Wright

NELSON

Rebecca Murphy Benjamin (Ben) Nettleton

12

OTAGO

Mark Zarifeh

CANTERBURY

CANTERBURY

SEPTEMBER 2021

Balancing the Scales Parenting and practising Barbara Relph* A balance between work and family is good for everyone but creating the mental and emotional energy to achieve this takes work and planning. For a barrister, reducing work hours is all very well but client needs must still be met, deadlines adhered to, and there must be no disruption to the service provided.

The atypical work hours associated with running a practice can lead to stress or exhaustion, leaving the barrister unable to be emotionally involved in family life. And the dominoes keep falling with communication difficulties causing poorly defined or inequitable roles within the family leading to wider relationship problems.

It’s hard to achieve a good balance between parenting and work – especially if the bank is your boss – but it is worthwhile. Mental health improves, burnout reduces, and satisfaction with personal relationships increase.

With that in mind, there’s no doubt the most important – and the most difficult – thing you can do for your family is to pick the right person to have children with.

If your partner sees you as an adjunct to their career it is significantly harder to succeed as a barrister.

A quick chat with Kate Davenport QC highlighted some of the many challenges. Knowing the children’s needs are paramount, constant exhaustion is a given. Because law is not a career which complies with a regular work schedule, it is common for lawyer parents to come home to do their parenting job and then head for the home office, often working until late, simply because they have to.

SEPTEMBER 2021

Years of lobbying, mentoring and encouragement has made the legal profession in 2021 markedly more family friendly for both men and women, and most recent female bench or silk appointments are also mothers.

We interviewed four barristers – all mid-juggle – to ask about the challenges and rewards of combining practising and parenting. Common themes which emerged were the importance of flexibility, a great home office setup, teamwork, and outside support. The various ways in which a good balance is achieved varies greatly between individuals, as we see here.

Every day is different – regularly check your solutions are fit for purpose Isabella Clarke and husband Sean have two young boys, aged almost seven and almost five. Sean is a GP working four days a week and Isabella practises from her home office as a member of Kate Sheppard Chambers, a virtual office environment for women.

Isabella’s office has everything she needs (including a lock on the door to keep small people out). She is fully mobile, travelling to meet clients or even to the beach to have some quiet deep-thinking time. Acknowledging it doesn’t work for everyone, Isabella enjoys having no fixed boundaries between work and home. “It feels indulgent, but I seem to get more done in a day than I would in an office. I often work in the evening and go for a walk during the day. I’m completely self-directed about the order in which I do things.”

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Phil works school hours, dropping tools mid-afternoon for the school run and various sports and cultural activities. Chatting to other parents in the school yard provides a perfect transition from office to family, and social sport ensures he has time away from the law.

“Going for a run is great for your health, but it doesn’t stop you thinking about work!”

Sharing all household tasks, Kate and Phil find time for themselves every evening, preparing a meal once the children are in bed, and on Sundays they gather the troops for a simple family adventure – a walk or bike ride – to reconnect as a family.

“Because law is creative, being tied to a desk can stymie that creativity. Taking your mind to another place can really aid the creative process, even if that place is the washing line.” Although she has no intentional boundary, Isabella generally works three days a week, but at irregular hours.

Sharing domestic duties with Sean, Isabella took literally the advice of Victoria Casey QC. “Get a cleaner.” This has been life changing, allowing Isabella and Sean to spend more time with the children, together.

The Cornegé family are fortunate that their two good incomes result in financial flexibility, and with grandparents living nearby, Phil and Kate can find a work-around should a court case or conference crop up which disrupts the routine.

Phil quips that “the key to success is a wife with a good income,” but in all seriousness, his advice is to be flexible. “Having a set up at home which replicates chambers enables the parent at home to be as productive as possible.”

Decompress before cross-examining the family

Childcare outside the home was chosen to advance the children’s socialisation with their peers and other adults; and having grandparents handy has been a huge bonus. This also allows Sean and Isabella space both alone and together for other activities and outings.

Sara (not her real name) returned to a large firm after maternity leave, on track for partnership. What she thought she wanted and what actually transpired were quite different, she recalls. Something had to give between the long hours and family life.

Isabella’s advice to a young family starting this journey is not to expect every day to be static. “Things change and sometimes you feel in control, other times you don’t. Keep checking in with your partner to make sure your solutions are fit for purpose at the time.”

Sara and husband Ian took time to consider their priorities. They tried a new routine with Ian working part-time and assuming primary parenting duties, and Sara joined the independent bar a few years sooner than she intended, but a move she and her family do not regret. “The support at the bar and through the NZBA got me through the hard times - it was no longer just being a lawyer; it was about being ‘in business’ a skill set I needed help with.”

The second valuable piece of advice is that people want to help. “As a lawyer, your Type A personality won’t find this easy! Let it go. Don’t underestimate the challenges of combining two serious, responsible jobs.”

Flexibility and a great home and chambers setup With two lawyers in the family, Phillip Cornegé recognises his privileged position. Phil and wife Kate live in Cambridge and have two children aged nine and six. The decision as to who would take primary responsibility for the children was relatively easy – Phil, as a commercial barrister, had significantly more flexibility in his work life than Kate, a law firm partner in Hamilton.

Attending chambers just one day a week avoids a commute of up to an hour every day. Phil’s practice is entirely paperless, and their shared home office is, technology-wise, identical to his chambers.

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Sara is determined to be an involved parent – a mum – and manages to work in drop-offs and pick-ups. Things don’t always work to plan, however, and Sara and Ian frequently rely on outside help from grandparents, babysitters and even neighbours on occasion.

Each school holiday is used to plan the next term’s routine, ensuring hearings, parenting and self-care for all the family are organised. Sara claims to be a “control freak”, but planning can only take you so far. “Everyone involved in your family unit has to be agile.” Sometimes in the last 10 years Sara has forgone professional functions, and even turned down large cases to honour pre-planned family commitments. “Other people at different stages in their career will prioritise other things,” she says. “Each to their own,” is her view.

SEPTEMBER 2021

“I approach my work life as if it’s a marathon. I’m in it for the long haul and can’t afford to fall over by overextending myself too early.” She is quick to point out that her view is unique to the priorities she has set for herself.

To avoid walking in the door and cross-examining the family, decompression time for Sara is a ferry ride and a short walk home. She uses this time to refocus and look at the positives, with the aim – not always achieved – of walking in the door with, “How was your day? What was fun?”

The key is to be agile and to expect uncertainty and hiccups in both family and practice. “There will always be days and even weeks which don’t work out as planned and it’s easy to feel others are judging you. It’s good to recognise that everyone has different priorities and dynamics to work with, and we are all doing it the best we can.”

Go ahead, prioritise your family Planning is the key to Sam Jeffs’ rather idyllic life. Sam is at work by 6am most days, and home mid-afternoon to have some fun time with his two preschool children before cooking dinner for the family.

Sam and wife Jane always planned to have a family relatively young. To achieve this, Sam went to the bar very early in his career to create “the workplace culture that [he] wanted to live”, not endure. Bankside Chambers provides an excellent brand and credibility,

SEPTEMBER 2021

and a flow of work from his time junioring for David Williams QC. Sam’s commute is his buffer between work and family, travelling off-peak and avoiding traffic congestion being a secondary benefit. He will happily take a call during the afternoon or spend time in his home office (which doubles as a lego playland) later in the evening if he has urgent client work. Sam will readily explain any background noise to a client by acknowledging that he is with his children. “It would take a pretty unreasonable person to object to that!”

Conscious of modelling his version of “normal” for his daughter and, of course, keen to help Jane with the chores, Sam participates in every aspect of home life.

“At least cleaning the shower is an achievable goal with a certain end date, unlike some of the legal cases on my desk.”

And Sam’s advice? Three simple rules: “Set your own boundaries for your future life. Work out what your values are and stick to them. Manage the expectations of the people you are working with by planning ahead.”

When he says he has other commitments and will do it tomorrow, he will. It doesn’t matter that the commitment was to take his toddler to Snow Planet for her first snow-boarding lesson on Thursday. It was an important commitment. * Barbara is a professional writer, editor and proof-reader – www.barbararelph.com.

15

Cybersecurity

What you need to know Barbara Relph* Is your practice protected from cyber threats? The cheap lock on the back door to your practice could be as simple as your choice of passwords, or failure to use two factor authentication on your emails – and is just as easily remedied.

The tech world is full of buzz words, and the buzz word “cyber” simply means the use of technology, so a “cyber threat” is a risk which arises from the use of technology.

Government organisation CERT NZ (Computer Emergency Response Team) figures showed a 65% increase in the number of cybersecurity reports made by individuals, small businesses and large organisations in 2020 compared with the previous year. There is no doubt that there are vastly more unreported incidents.

How do you keep your information and your clients’ secrets safe? This is especially difficult when that information needs to be easily available wherever you are working. The marked trend towards remote working adds to the problem by moving client information on to other devices which may not have the necessary security.

The storage of client information is clearly the lawyer's responsibility. Aside from requirements under the Privacy Act and the Client Care rules, it is simply bad for business when there is a breach of data security. But the question is how much you - a lawyer - need to know about technology in order to meet your obligations.

The US, Canada and Australia have regulated the issue of cyber security for law firms in their codes of ethics.

16

For instance, the New Hampshire Bar Association regulates the competence of a lawyer to include “a basic understanding of the technologies they use”.

And further, “as technology, the regulatory framework, and privacy laws keep changing, lawyers should keep abreast of these changes.”

In New Zealand, we haven't reached that point. But it is certainly arguable that you need to know enough so that you are not negligent. It can be quite a conundrum to find the gold standard of the best technology and the ability to access information from anywhere, all while keeping costs as low as possible. This is the challenge for a small business such as a barrister's practice.

Defining types of incidents: The burgeoning cyberattack industry has produced new industry-specific words which can be heard or read on any news platform. You may be familiar with some or all of them, but they are roughly defined here.

• Malware (malicious software): Malware is designed to infiltrate a system, causing damage without you knowing or consenting. This includes viruses, worms, Trojan horses, spyware, and adware.

• Ransomware: Similar to malware, but ransomware has the specific purpose of exploiting a vulnerability. It encrypts the contents of the hard

SEPTEMBER 2021

drive it is installed on and demands the user pay a ransom to recover the files.

• Phishing and credential harvesting: These are emails, texts or websites which attack by convincing users they are genuine when they are not. They are clever, masquerading as being from authentic sources and result in people volunteering information or money.

• Spear phishing (payment fraud): Similar to phishing, this is where someone hacks into a system and impersonates a known contact. They then set up a fake account almost identical to that of a trusted supplier or even staff member and ask you to make payment to that account.

• Scams and fraud: Computer-enabled fraud that is designed to trick users into giving up money, such as phone calls or fraudulent internet pop-up advertisements which con users into installing fake software on their computers.

• Reported vulnerabilities: This covers weaknesses in software, hardware or online service, which can be exploited to cause damage or gain access to information.

• Suspicious network traffic: Detected attempts to find insecure points or vulnerabilities in networks, infrastructure or computers. Attackers usually try to work out if your system is worth attacking and these attempts are sometimes detected by security systems and can provide an early warning.

• Unauthorised access: Successful unauthorised access can expose networks, infrastructure or computers to a wide range of damaging activities.

These activities generally either compromise confidentiality, or improperly modify the integrity of a system, or affect the availability of a system.

How do you know if you are being attacked? The weak link with cyber security is usually people. Minimise this risk by learning about what you should look out for, with the aim of preventing attackers getting through your defences. Phishing is the main type of threat identifiable through email and is the most likely avenue for a successful cyberattack.

What a threat might look like, and how to protect yourself Imagine this. Your secretary, Marie, receives an invoice for $25 from a new supplier for two memory sticks.

Marie is frantically busy and just pays it because you are working on a huge case and have asked not to be disturbed.

That invoice may have been sent to 50 or 5,000 businesses, in the hope that a few will just pay without checking. It’s small, so it is likely to fall under the radar, and now they are a new supplier in your business so future invoices are likely to get through the system also.

This is phishing.

SEPTEMBER 2021

Another scenario. Marie receives an email from you saying, “Hi Marie, I need this account paid urgently.” She pays the account promptly, as you have asked.

Marie didn’t check the email address which the instruction came from – why should she? It was likely to be very similar to your actual email address, but unfortunately, it wasn’t from you. Your email account had been hacked and a fake account set up, and you are now out of pocket with little hope of seeing those funds again.

This is spear phishing.

Encourage your staff to trust nothing which arrives by email. Have a list of known suppliers and their associated bank accounts; and verify any new payment instructions using a secondary method – a phone call to a known number is good.

The rules are simple: • Slow down.

• Check everything - the email address and other credentials of the sender, verify any payment demands.

• If you don’t recognise the sender, don’t reply.

It’s unrealistic to think you could prevent every cyber breach, but there are practical steps you can take to minimise potential risks.

How will you manage a cyber-attack? Has your IT supplier advised you on systems able to withstand a ransomware attack? Most small businesses will call their IT company as the first port of call, so check your IT supplier is experienced at handling cyberattacks.

Prevention being the best form of defence, CERT offers sound advice1 to protect the security of your client information. Work through this list with your IT supplier.

Top tips for safeguarding business or client information: • Install software updates as soon as they are available.

• Implement two-factor authentication on key systems (email, cloud services, document storage, client information storage) so anyone who logs in to your system has to verify that they are who they say they are.

• Back up all your data, ideally automatically to remove human error.

• Log multiple failed log-in attempts so you are alerted to any unusual or unexpected events.

• Create a plan for when something goes wrong (sorry, but the buck stops with you).

• Update default login details from the factory pre-set, ensuring new passwords are strong. A password manager is a useful tool.

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• Choose a cloud service which suits your needs – do they provide a back-up service? Do they offer two factor authentication? Do they monitor security breaches?

• If you don’t have cyber insurance already, this might be the time to sort that out. If you do have insurance and the breach may result in a claim, talk to your insurer.

• Only gather data you really need. For legal work this may be ambitious since you will be gathering a significant amount of private information from clients, but it does raise the point that security is more important for legal work than most other businesses because of the sensitive nature of all the data collected.

• If client information may have been breached, you have an obligation to notify your clients.

• Secure your devices using anti-malware software on every device that accesses your systems.

• Secure your network, considering connections in and out of your business, and limit access to only those who need it.

• Check any payment requests against a known list of suppliers, confirming new suppliers by a secondary means.

What to do if you are the victim of a cyber-attack: If you are the victim of a cyber-attack, the Law Council of Australia offers good advice2.

• Get help immediately from your IT supplier to identify the threat (determine what is happening, if or how it is spreading, and whether you are being targeted directly or is this attack broader than just your system).

• Neutralise the attack (protect your own and your clients’ data, limit access to all data, find and remove the threat).

• Review your system through a complete audit to minimise further risks (check all data and consider data recovery options, prioritising data recovery methods).

• Restore and rectify infrastructure to eliminate vulnerabilities (isolate the system, rebuild the platform, review the entire system).

• Recover your data, ensuring you know what data is accurate and what is unreliable.

• Test to ensure all systems are functioning properly and resume operations.

Once the system is secured, it’s time to reflect and learn from the experience.

• Write or ask your IT supplier for a report on the event considering what happened and how the problem will be avoided in future.

• Implement any changes that have been identified.

• Notify the National Cyber Security Centre and consider your obligations to report under the Privacy Act 2020.

How can cyber insurance help you?

“Cyberattack has grown to be one of the most prevalent business threats in recent years, and the value of having a policy has really been tested, especially in the last 12 months,” says Jono Soo, Head of Cyber Specialty at Marsh New Zealand.

The value for a small business is that this type of insurance provides a support network enabling barristers access to the same resources as big corporates. “Cyber insurance gives immediate access to data recovery and forensic investigation experts to help get back online quickly or manage a potential data breach. These resources can cost a lot without insurance, depending on the level of complexity of recovery.”

The bottom line: You may be a legal expert, but chances are your IT skills don’t match your knowledge of the law. Carefully select an IT supplier who you trust and who is responsive.

They must fully understand your system and be proactive, offering advice on security before you ask for it.

Further resources: Computer Emergency Response Team (cert.govt.nz) National Cyber Security Centre (ncsc.govt.nz) Bar Council UK - Information Security Guidance https://www.barcouncilethics.co.uk/documents/ information-security-3/ Marsh Insurance https://www.marsh.com/nz/insights/risk-incontext/rising-cyber-threats.html Law Council of Australia http://lca.lawcouncil.asn.au/lawcouncil/cyberprecedent-tools (please note this site displays a "not secure" warning at the time of writing.

When a site is not secure, you may want to avoid transactions or using the site in a public network).

Lawyer Monthly https://www.lawyer-monthly.com/2021/04/ strong-defences-are-not-enough-why-lawyersneed-a-new-way-to-think-about-cybersecurity/ * Barbara is a professional writer, editor and proof-reader – www.barbararelph.com.

REFERENCES https://www.cert.govt.nz/individuals/guides/ http://lca.lawcouncil.asn.au/lawcouncil/images/cyber/CP-Toolkit.pdf Please note that at the time of writing, this site is marked “not secure” on Google Chrome.

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SEPTEMBER 2021

Resolving Construction Disputes Is adjudication a good option?

Natalia Vila* With few exceptions, the Construction Contracts Act 2002 (the Act) applies to every construction contract relating to construction work carried out in New Zealand. Statutory adjudication under the Act is the most commonly used dispute resolution process in New Zealand for resolving building and construction disputes, offering a fast and relatively straightforward process for resolving disputes under construction contracts.

The Act prevents an unwilling party from delaying or avoiding the adjudication process. A claimant can secure the immediate appointment of an adjudicator without any consultation or agreement with any other party required, and every party will be bound by the outcome whether or not they choose to participate.

This makes adjudication an effective and important dispute resolution tool.

Ten fast facts about construction contract disputes and adjudication 1. What is a construction contract?

A construction contract is a contract for carrying out construction work which has a broad definition and includes construction, alteration, repair, restoration, maintenance, extension, demolition, dismantling or removal of any building or structure.

Construction work was extended in 2015 to include design, engineering and quantity surveying, so these consultants can also access the payment protections of the Act including the right to suspend work for non-payment and also the adjudication procedures to resolve payment disputes. The flip side is that those who undertake construction work will be subject to claims for breach of contract, breach of the statutory warranties under the Building Act 2004, and breach of requirements of reasonable care and skill in relation to their work.

2. Does the contract need to be in writing?

A construction contract does not need to be in writing to be covered by the Act. A demand for payment for work undertaken under a construction contract (known under the Act as a payment claim) does however need to be in writing and comply with the requirements of the Act to be valid1 so as to engage the default liability payment provisions and entitlement to suspend work under the Act.

SEPTEMBER 2021

3. What types of disputes can be referred to adjudication?

Default liability claim These are claims for technical non-compliance with the payment regime under the Act. Where a valid payment claim has been served by a payee on a payer and the payer fails to provide a payment schedule in response within the period mandated under s 22 of the Act or fails to pay the whole of the scheduled amount by the due date for payment, a determination that the payer is liable to pay the whole of the unpaid portion of the claimed or scheduled amount may be made by an adjudicator, without the claimant having to prove its entitlement to payment on the merits under the contract.

Claim on merits There are disputes about the substantive rights and obligations of the parties. Typical claims for payment and rights and obligations determinations might include: • contract interpretation disputes; • whether particular work constitutes a variation; • whether work is defective, creating an obligation (and/or a right) on the part of the contractor to rectify it; • extension of time claims including time-related cost claims or downstream liquidated damages claims; • whether time is at large; • the right to suspend or terminate a contract; • assignment rights; • issues regarding bonds; • entitlement to a Practical Completion Certificate or Final Completion Certificate; • entitlement to release of retentions; • ownership of plant, equipment and materials; • damages claims for breach of contract; and • contractual claims for damages for breach of requirements of reasonable care and skill in relation to design, engineering and quantity surveying consultants.

4. What if the contract has a dispute resolution clause referring to mediation or arbitration?

Any party to the contract can still refer disputes to adjudication under the Act, even if the contract provides for a different dispute resolution procedure such as mediation or arbitration. Parties cannot contract out of the Act. 5. Do the parties have to agree on who the adjudicator is?

No. This point is often misunderstood and much time (and money) wasted by parties trying to agree on an adjudicator. Any agreement before the dispute arises is

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THE ADJUDICATION PROCESS

8. Is there a hearing?

No. The adjudication process takes place entirely on the documents which are typically exchanged/served by email. This makes the process very fast by comparison to litigation or arbitration. In exceptional cases the adjudicator may require a visit to the construction site or convene a conference to discuss or clarify matters but such interventions are extremely rare.

9. Is the adjudicator’s determination final?

The determination of the adjudicator is binding on the parties in the interim and will be binding on the parties and enforceable unless or until the dispute is finally determined by arbitration or by court proceedings, or by agreement.

10. What if the losing party fails to comply with the adjudicator’s determination?

The successful party may apply for the determination to be enforced by entry as a judgment in the District Court3 and they are entitled to recover their actual and reasonable costs of doing so.

The person against whom enforcement is sought has only five working days to oppose judgment. The Court has no overriding discretion to refuse to enter judgment and can only refuse to do so on very narrow grounds.

These are:

unenforceable and it is often hard to reach agreement (on anything) once a dispute has crystallised. The claimant can request the appointment of an adjudicator from an Authorised Nominating Authority of their choice like the Building Disputes Tribunal2 without needing the agreement of the other party or even to consult them about the appointment.

6. What is the scope of the adjudicator’s jurisdiction?

An adjudicator may determine whether or not any of the parties to a construction contract is liable to make a payment under the contract, whether there has been a breach of the contract (including a term implied under the Building Act 2004), any questions in dispute about the parties’ rights and obligations under that contract, any ancillary or consequential matters, and/or any additional matters that the parties might agree in writing.

An adjudicator may, in certain circumstances, approve the issue of a charging order in respect of the construction site owned by a party to the construction contract against whom a claim is made in an adjudication, or an associate of that person.

7. How long does it take?

Most disputes are resolved in less than six weeks from the time the process is started.

• • •

•

•

the amount payable has been paid; there was in fact no construction contract; a condition imposed by the adjudicator has not been met; due to a change in circumstance, not caused by the respondent, it is not possible to comply with the determination; and the date (if any) specified in the adjudication for compliance has not yet passed.

Statutory adjudication under the Act offers an important and effective process for parties to resolve construction disputes promptly and cost effectively. It can be very attractive from a claimant’s perspective given the inability to contract out of the Act, which means that an unwilling respondent cannot delay, avoid or obfuscate the adjudication process. The fact that any amount determined to be paid by an adjudicator must, except in rare circumstances, be paid within two working days of receipt of the determination enables parties to move quickly to enforce a determination (and obtain charging orders over the construction site in some cases) and suspend work if such payment is not made. All of these factors combine to provide a very prompt, efficient and cost-effective solution to resolving building and construction disputes and debt recovery. *Natalia Vila is the Registrar of the Building Disputes Tribunal, which is an Authorised Nominating Authority under the Construction Contracts Act. There are many helpful guides, resources and related information available on BDT’s comprehensive website at https://www. buildingdisputestribunal.co.nz/. The Registry can be contacted at registrar@buildingdisputestribunal.co.nz . Our thanks to the Building Disputes Tribunal for supplying this article.

REFERENCES More information about the specific requirements for a valid payment claim are available here Section 33(4) of the Act. The Building Disputes Tribunal is an Authorised Nominating Authority under the Act. 3 Additional information about enforcement is available here 1 2

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SEPTEMBER 2021

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Access to Justice in New Zealand Advancing what’s possible Barbara Relph* The last 12-18 months have undoubtedly been challenging for people around the world. The impact of the pandemic has been profound and far reaching, impacting national economies, as well as our ability to work and socialise.

LexisNexis has studied the correlation between the rule of law and economic growth and stability.1 A reliable justice system provides necessary protections and upholds the rights of individuals and businesses, ensuring investor confidence and driving opportunities for economic prosperity.

Access to the institutions of justice is fundamental to the rule of law. In these unusual times, movement is restricted, and we are forced to rely on online communications and access to products and services.2 We are fortunate that much of the information we need is freely available. But not everyone has the same resources to access these services and to understand how they can best suit their needs. They need an intermediary to help them to understand their situation and to best present their case.

There are numerous lenses through which to view the impacts of COVID-19 on the rule of law, each raising interesting questions that could be discussed at length. Has the imposition of discretionary powers by Governments over their citizens been carried out in a just way? Is restricting the human right to freedom of movement justifiable in the name of public health? How has the right to work been affected? Should people who refuse vaccination be entitled to access public places and put others at risk?

The first access point is legal aid. It is no secret to anyone that civil legal aid has been hit hard ever since the Bazley report. Reforms that were intended to promote efficiency instead drove practitioners away from the provision of legal aid services. The rates for both criminal and civil legal aid providers do not encourage participation in the scheme, especially with the uncertainty around recovery for aspects of file management. And critically, the threshold below which people qualify for legal aid is completely out of touch with reality. The result is that only a small percentage of applicants qualify, and a large proportion of cases simply cannot be heard because of cost.

The second access point is improving pro bono initiatives. While there is no requirement for lawyers to carry out pro bono work, there is pressure – an expectation, if you will – that they do so. There are community-based pro bono initiatives improving access to justice but up to now, there has been a lack of co-ordination between the providers. The recent introduction of te Ara Ture - a pro bono legal service connecting volunteer lawyers to people who need legal help - is a massive step forward for the community. But this has some way to go.

But most importantly, pro bono work should never be viewed as a substitute for a functioning legal aid system.

Inadequate access to justice threatens the rule of law in legal systems not just in New Zealand but around the world. Alongside a broad and far-reaching global campaign, improving access to justice across Aotearoa is an initiative LexisNexis has chosen to focus on this year. While a significant amount of work is performed by hundreds of professionals in the legal industry every year, the gap in access to justice in the country is widening, affecting many layers of the community.

The third access point is court procedures that affect the cost and speed of resolving litigation and affect access for lay litigants. The Rules Committee recognised that any meaningful response to the matters raised during the initial consultation process required proposals for reform going beyond rulesmaking and extending to proposals for the amendment of primary legislation. In May 2021 the committee produced a consultation paper4 that recommended, inter alia, significant changes to the Disputes Tribunal’s jurisdiction, introducing Deputy Judges/Recorders to the District Court and greater judicial intervention, together with a streamlined disclosure process, at the High Court level.

Extensive research has assessed the weaknesses of the justice system, with the objective of improving the experiences and outcomes for victims and reforming the rules governing civil trial procedures. In its 2018 report3, the New Zealand Bar Association, identified four points at which access to justice could be improved.

Finally, there are inherent limitations in the current structuring of fees. “Low bono” or a discounted fee structure, billing on a contingency basis, or unbundling legal services are all mechanisms which would improve access to justice for clients unable to fund their cases.

However, there are some real barriers to change in this area, including both regulatory and liability issues.

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LexisNexis-NZBA Access to Justice Award Over the years, the NZBA and LexisNexis have developed a partnership to support barristers in their work, and we are now taking this commitment a step further with the Access to Justice Award initiative.

Many groups are working to improve the situation for litigants. But there needs to be more recognition of the contribution made by lawyers, notwithstanding poor (and often non-existent) pay rates, extreme stress, the difficulties of a system that regards them with suspicion and increased bureacracy. They are often overlooked, but their mahi makes a huge difference to the lives of those they represent.

The Award recognises outstanding contributions to the promotion of access to justice, by acknowledging the work of those practitioners who make a real difference by acting for clients who would otherwise not have access to justice. The inaugural winner of the Award will be announced to the public at the NZBA Association Conference formal dinner.

This award represents an exciting development for LexisNexis in both its relationship with the NZBA and the promotion of Access to Justice in New Zealand. * Barbara is a professional writer, editor and proof-reader – www.barbararelph.com.

REFERENCES LN’s Rule of law report.

LN’s free databases 3 Report of the New Zealand Bar Association Woking Group into Access to Justice 2018 https://www.nzbar.org.nz/sites/default/files/uploaded-content/ field_f_content_file/access_to_justice_report_-_1_september_2018_0.pdf (accessed 23-8-21) 4 The Rules Committee | Te Komiti mō ngā Tikanga Kooti Improving Access to Civil Justice Further Consultation with the Legal Profession and Wider Community May 2021, https://www.courtsofnz.govt.nz/assets/4-About-the-judiciary/rules_committee/access-to-civil-justice-consultation/Second-CivilJustice-Consultation-Paper-PUBLISHED-01-06-2021.pdf (accessed 23-8-21) 1 2

ADVOCACY NOW: LAW IN EXTRAORDINARY TIMES

Thank you to all of our sponsors and supporters.

We look forward to seeing you in Tauranga in November.

SEPTEMBER 2021

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The Devil is in the Detail

The deadly sin of failing to proof-read Barbara Relph * Lawyers are neutral proof-readers, spending so much time pawing over legal documents. Their’s nothing quite like a second eye to lesson the chances a mistake will slip through. See what I did there? I’m sure you did. MS Word Editor tried to fix only two of those six errors.

Why does proofreading matter? An error in a contract or other technical document can be catastrophic, and not just to your reputation. It could simply be the position of a comma or apostrophe, an incorrect word, or even the wrong number of zeros – all can have disastrous effects and be difficult, convoluted and expensive to fix.

Mistakes in your document give the impression that you do not pay attention to detail.

Worse, your legal work may be viewed as being sloppy.

If there’s a typo or grammatical error, there may be more serious errors, such as incorrect citations.

Whether you are new to the game or in need of a refresher, here are some proofreading tips and tricks:

I found this when researching proofreading: “In other words, Legal proofreading, it is a term, used, when a legal professional works with any law firm’s proofreading documents and compares them against the documents.”

Now that needed a proof-read before publication! Like the Ishihara eye test for colour blindness, if you don’t see the errors, you need a proof-reader. Suffice to say, a skilled legal proof-reader understands nuanced legal writing. That might be you, or your secretary, or your law clerk, or maybe you use an outside professional for this task. Whoever you use to check through your work, you may still learn something here.

It’s hard to deny the quality of the MS Word Editor tool. So much better than the old spelling and grammar check, it picks up tense or plural errors, “voice” changes, style conventions and even makes suggestions for alternative words.

However good it is, it is not specialised for legal writing. Legal terminology, capitalisation or punctuation, and legal idioms are all just too hard for Word; and you will find Word “fixes” correctly spelled words when they are used in an unusual way, as is often the case in legal writing. A good proof-reader will read for the “sense” of the work, help cut down verbiage, and check footnotes and cross references.

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• Everyone is different, and many will prefer to

proofread a hard copy rather than on screen.

• Read through the document several times, checking for different errors each time – for example, spelling, grammar, flow and readability, and formatting.

• If there are calculations in the work, check them. If the result isn’t what you expect, check the numbers again.

• As you read, check proper names, references, and double check facts.

• Read aloud at least once. This is always a good idea, and really helps if your work is likely to be read out loud by someone else at any point.

• It takes a great deal of discipline and focus to proofread properly, so avoid any distractions or background noise.

• For long documents, proofread in sections.

• If you have time before the final proofread, walk away for an hour or so (ideally overnight) and come back refreshed.

It is very difficult to proofread your own work. You only see what you believe is there.

Proofreading is a discipline worth perfecting. And if you simply cannot get it right? Get help and hire a professional. The cost is minimal compared to a ruined document. * Barbara is a professional writer, editor, and proof-reader – www.barbararelph.com.

SEPTEMBER 2021

Made For Today a Century Ago

By MAS CEO Martin Stokes

This article is reproduced with permission from OnMAS, the magazine for MAS members. For more articles like these visit www.on.mas.co.nz Founded on co-operative principles a century ago, MAS has supported its members through some tough times. Established in the wake of a World War and a global pandemic, our history has been book-ended by devastating natural disasters – the Napier earthquake of 1931 and the Canterbury earthquakes of 2010 and 2011.

So what prompted a group of Napier doctors to establish an insurance company in the first place; and what does the future hold for MAS? As we go to press in March 2021, it’s almost 100 years to the day since four doctors met in the drawing room of a Napier villa and resolved to start an insurance company.

It’s unclear exactly what the group’s original aims were, although there’s some evidence they were motivated by the high costs of running medical practices at the time.

Initially, their concern seems to have been to purchase medical supplies at more affordable rates, although eventually this focus shifted to providing insurance for medical professionals.

What’s remarkable is that a group of busy doctors – with plenty of professional obligations to keep them occupied – found the time to set up the Medical Assurance Society.

When you think back to what was happening in New Zealand in the 1920s, though, their willingness to take on this extra work and responsibility was very much of its time.

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New Zealand’s most harrowing years The driving force behind the formation of MAS was 33-year-old Irish-born Dr Frank Harvey. In 1921, he and his generation of doctors had just witnessed seven of the most harrowing years in New Zealand’s history – World War One immediately followed by the Spanish flu pandemic.

Dr Harvey, a radiologist, served as a medic at Gallipoli and the Somme. Few would have had such a close and unrelenting view of the horrors of a war that killed 18,000 New Zealanders. The total list of New Zealand’s killed, and wounded was well over 100,000 – around a quarter of the Kiwi men eligible for military service (aged between 18 and 45).

If that wasn’t enough, on his return home Dr Harvey and his contemporaries found themselves on the frontline

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of the 1918 Spanish influenza pandemic. From midOctober to mid-December 1918, at least 49% of the population was infected with the flu. In some areas, more than 80% of households were affected. In just two months, around 9,000 people had died.

House surgeons at Napier Hospital in 1921

To make matters worse, 1921 saw the onset of a sharp post-war recession. Inflation was rampant, with the cost of imported goods rising by 67% between 1917 and 1920, while export receipts slumped by up to 30%.

An era of optimism Despite these tragedies, 1921 was also an era of optimism. New Zealand had emerged from the war with a new sense of nationhood and a growing determination to forge a better society than what had gone before.

Our health professionals were particularly motivated to remake systems and create new institutions. New Zealand was a world leader in infant care, and the 1920 Health Act was regarded globally as innovative and far sighted.

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The 1920s also saw the beginning of a significant economic transformation as our economy began to mechanise faster than ever before.

Among the most profound changes was the replacement of horses with cars and trucks – a shift of particular significance for doctors. In many provincial towns, it was the local doctor who had the first car since they had both the means to purchase one and the need to drive to house calls at all hours of the day and night.

However, premiums for motor vehicle insurance in provincial areas were astronomical and excluded cover for women if they were driving. Unsurprisingly, then, one of the first ventures of the fledgling Society was affordable motor vehicle cover for doctors. The other main offering was income protection since it was difficult in the unsettled economy of 1921 to find an insurer willing to offer reasonably priced personal injury and illness cover to the medical profession.

From these immediate practical needs emerged a company well placed to not only survive but thrive, particularly in the aftermath of World War Two. Strangely enough, the co-operative model Dr Harvey and his colleagues had adopted in the 1920s proved one of the mutual’s strongest features, even as cooperatives were in decline around the world.

As a mutual, MAS’s customers become members and shareholders in the company.

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The primary purpose of a mutual is not to make a profit for external shareholders, as with a limited liability company, but to serve the interests of its members.

It was hardly a new idea in 1921, but it’s one whose emphasis on shared benefit and sense of mutual interest has recaptured the attention of the business world in the twenty-first century.

Increasing social inequality in developed societies and the climate crisis have seen leaders of some of the world’s largest corporations reject the old business doctrine of “profit before all else”. There’s general acceptance from business leaders all over the world that the pursuit of short-term profits in the supposed interests of shareholders destroys social cohesion and our planet. Larry Fink – CEO of Black Rock Partners which controls NZ$9 trillion worth of investments – has demanded that companies declare a purpose beyond profit. The free-market American Business Roundtable has publicly stated that corporations should serve multiple stakeholders – their customers and their societies as well as their shareholders.

The proof is of the pudding is always in the eating when these sorts of claims are made, and there are plenty of concerns about companies trying to launder their reputations and business dealings by expressing concern for the environment or the wellbeing of society. But it’s clear that attitudes are changing, and it would be a particularly tone-deaf corporate leader to declare unapologetically in 2021 that “greed is good” as they might have done in the 1980s.

At MAS, this supposedly revolutionary thinking can feel like history repeating. As a mutual, MAS has never had to choose between what’s good for our customers and what’s good for our shareholders – for us, they are one and the same.

With growth comes opportunity MAS started out as a way of helping medical professionals take care of themselves and their families, but as we’ve grown, we’ve evolved.

MAS has never felt the need to become a corporate giant through acquisition, and prudent financial management has meant we’re in a strong position to weather the uncertain economic times ahead as the world emerges from the COVID-19 pandemic.

Instead of shareholder dividends, we’ve concentrated on delivering the best service we can to our members, and we’re proud to have received the Consumer NZ People’s Choice Award for house, car, contents and life insurance for the past five years in a row. We’re humbled by that recognition because it’s not just

SEPTEMBER 2021

another industry award – it’s an expression of our standing with our members and the wider public.

As we’ve grown, we’ve become large enough to look beyond our immediate membership to see how we might be able to also support the communities within which our members live and work. Over the past three years, in particular, we’ve worked hard to define our social purpose and place it at the centre of everything we do.

The establishment of the MAS Foundation is one expression of this focus, and it is already making a meaningful contribution to the health and wellbeing of New Zealand communities, particularly those that have traditionally been under-served by our health system.

The COVID-19 pandemic also helped catalyse our sense of how we can make a difference to our members in their day-to-day lives. We put together the MAS Relief Package to ensure members who struggled financially through lockdowns were supported and didn’t have to worry about how they would maintain their insurance when times were tough.

We’ve begun partnering with more organisations who share our values and are working to make a difference to the health of New Zealand – from the Sustainable Business Network to Wāhine Connect to Te ORA – and we will continue to explore new opportunities to help other organisations achieve common goals.

MAS has never been an ordinary company. From the very start, we have enjoyed an unusually close relationship with our members who, quite rightly, feel a sense of ownership of the mutual. In many cases, we form decades-long relationships with our members, and we serve multiple generations of the same family.

We don’t take these relationships lightly or treat them as inevitable. We don’t think of our members as ‘customers’, since this implies nothing more than a casual passing acquaintance. Instead, we feel a sense of responsibility not just to do the right thing by our current members but to honour the principles of our founders and live up to the expectations of generations of members.

In February, we marked the tenth anniversary of the Canterbury earthquakes – a timely reminder of the continued importance of community spirit and mutual support. As we enter our second century, the spirit of co-operative service with which our mutual was established has never been stronger as we evolve into a company even better suited to serving our members and our community.

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Manaakitanga

More than just hospitality Cassie Hart (Ngāi Tahu)* This article is reproduced with permission from OnMAS, the magazine for MAS members. For more articles like these visit www.on.mas.co.nz and uplift their mana, and in return, they respect our customs and homes and enhance our mana in return.

Manaakitanga is about the balance between those in the relationship whether two individuals or two iwi.

Fundamental to all relationships Historically, manaakitanga was intertwined with every core value of Māori society, and the amount of manaakitanga given would depend on the type of relationship and the place at which the relationship was being nurtured. For example, the level shown at a tapu location would be greater than at a place that wasn’t tapu.

As New Zealand endured and then emerged from lockdowns last year, we were urged to be kind and extend manaakitanga to each other. But what does manaakitanga mean beyond being hospitable and caring? Cassie Hart (Ngāi Tahu) explains.

Manaakitanga is a Māori word that has become familiar to many Pākehā New Zealanders in recent times. Most often it’s translated as ‘hospitality’. Often manaakitanga conjures images of pōwhiri (welcoming ceremonies) and a meal shared between tangata whenua (people of the land) and manuhiri (guests) on the marae.

That certainly is one example of manaakitanga, but it only scratches the surface of the word. A deeper examination of the meaning provides a rich insight into te ao Māori (the Māori world view).

Layers within the word Breaking the word manaakitanga into its constituent parts might be the fastest way to gain a deeper understanding of its meaning. First break it into manaaki and tanga. Manaaki speaks of support and care, while tanga changes a verb to a noun.

Broken down to the next level, we get mana and aki.

Mana, which is commonly known, speaks of power, force and authority of a person, place or object, which in Māori culture is believed to have been passed down from the atua or ancestors. Aki means to encourage or urge on.

Manaakitanga was always important no matter what the circumstances might be, and if it wasn’t observed, great offence could be taken and utu (revenge) might be sought.

If leaders of an iwi didn’t show the right level of manaakitanga to others, they would be removed from their position and replaced with another leader. The mana of the whole was impacted by even one person behaving inappropriately.

Sir Mason Durie – a MAS Member who received a knighthood in this year’s New Year Honours – has said there was no notion of the individual in pre-1840 Māori communities. Therefore, an injury caused by one individual to another would not only affect the mana of the victim but also the mana of the victim’s whānau or community. The whānau or community, as well as the individual, would be subject to the muru (plunder to appease offences) or utu to appease a breach of tapu or taking of mana.

A very relevant concept Manaakitanga is an old word, but it remains a beautiful way of approaching relationships, whether they be between friends, family, clients or business associates.

Living by the principles of manaakitanga means stopping to ask “whose mana am I encouraging?” and “am I elevating others?” – whether that be through words or actions. In uplifting others and giving them respect and aroha, we also hold our own mana in balance.

Together as manaaki, the words mean your hospitality is encouraging, growing the mana of others and urging the same from them.

Manaakitanga always adds value and never takes away.

Whether you offer a cup of tea or a three-course meal, it’s not about the amount so much as the offering and intent behind it.

This introduces the idea of reciprocity. When we invite people into our homes, we give them hospitality

Thank you to tikanga expert Rhonda Tibble for her assistance in researching this story.

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How To Prepare For a Natural Disaster This article is reproduced with permission from OnMAS, the magazine for MAS members. For more articles like these visit www.on.mas.co.nz Natural disasters are stressful and frightening events that can happen at any time. Here are some useful tips to help you out in times of an emergency.

Check your emergency kit.

Use the information provided on the Ministry of Civil Defence & Emergency Management sponsored website, Get Ready, to help plan your emergency kit.

Make a plan.

Make a plan with your family/flatmates/friends to get through an emergency. Fill in the template provided on the Get Ready website, stick it on the fridge and make sure everyone knows the plan.

Create fun practice drills for the family.

Use different scenarios such as fire, flooding, earthquake, and tsunami so that everyone is familiar with what to do.

Talk to your neighbours.

It's nice to know that if you're away from home when a disaster strikes, someone is close by to grab your pets or turn off the mains.

Keep emergency numbers and important information handy.

Make sure to include the details of local relief centres and evacuation routes.

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Where possible, secure large and heavy furniture.

These should be items such as bookcases, televisions, and art.

Keep a soft copy of all your important documents.

Have these handy on a secure server or mobile hard drive. Keep a hard copy with your emergency kit and save all your policy numbers in your phone for easy access.

What to do before a flood Inside your home •

•

Make sure everything of importance to you is in a safe place and in a waterproof bag, for example, jewellery, documents, personal items, medicines and other valuables.

Move what household items you can to higher places.

Put furniture and rugs up onto beds and tables – place electrical items on top of furniture and cupboards. Be careful if you're putting things up in your roof space or on an upper level, as these areas may not be able to safely support the extra weight.

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• Empty your fridge and freezer and leave the doors open to stop the appliances from floating.

• Turn off the electricity, gas, and water.

• If you have some, put sandbags in the toilet bowl and over all bathroom and laundry drain holes to stop sewage from flowing back inside.

Outside your home •

•

• •

•

Roll out builder's plastic around the base of your home – leaving 40cm on the ground to put the sandbags on. Tape the remaining plastic to the outside walls to a height of 1.5m. Keep external downpipes on the outside of the plastic.

Check and seal all ventilation holes, under-house access ways and points where water can get in.

Open gates or fences to allow water to flow freely.

Don't drive into water if you don't know how deep it is or how fast it's flowing.

Move outdoor equipment, cardboard boxes, rubbish, chemicals, and poisons to somewhere up high.

• Make sure the electricity and gas are off before re- entering your home if returning to your property.

• Use only a torch until you're sure there's no gas around if you need to use a light.

• Throw out food that's been in contact with floodwater and boil water until supplies have been declared safe.

• Check your smoke detectors are still working.

• Don't use any electrical items. Have the electricity and gas appliances professionally tested as soon as possible.

What to do after an earthquake •

•

•

•

Photograph and list any perishable food items being disposed of.

Photograph then wrap safely and store any broken contents items.

Board up windows and doors immediately to prevent further damage.

Take a photograph of the damage to document the current state of your home and property.

What to do when a storm is coming

What to do after a natural disaster

• Remove loose objects that might get broken or cause damage if blown around.

• Tie down, take inside, or fill with water large

relatively light items like rubbish and recycling bins, to stop them being blown around.

• Shelter and secure your pets.

• Shelter vehicles or cover then with a tarpaulin or blankets.

• Fill your sinks and bath with fresh drinking water.

• Ensure you have a full tank of gas so that if you need (and are able) to, you can evacuate.

• Wait for permission from emergency services to go back inside your house.

• Keep all power and electrical appliances off until they have been checked and approved for use, and the house is cleaned up.

• Boil tap water until supplies have been declared safe.

• Clean everything that was affected. It may be

contaminated so ensure you wear gloves and a mask during the cleanup.

• Photograph and keep a record of all the damage caused. A photo gives a clear picture and will help when making your claim.

What to do after a storm • Check your home for damage to windows, walls and roof.

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SEPTEMBER 2021

To Be Fair

Confessions of a District Court Judge Marie Taylor-Cyphers and Maria Pecotic* A well written and aptly named book. Rosemary Riddell writes about her journey to the bench. In her preface, Rosemary says “I wanted to tell the stories of those in both the Family Court and the criminal jurisdiction where I worked. I wanted to draw attention to their struggles and triumphs” and she does exactly this. She started out as a mature student at university and describes her progress through the ranks to her position as a District Court Judge. Rosemary discusses the real tribulations of ordinary New Zealanders in her capacity as a District Court Judge presiding over mental health, criminal and family Court hearings with humour and insight.

The book offers a refreshingly human aspect to the subject matter of life on the bench – the tales of life at home, her husband the pastor, and her beautiful children. Rosemary matter-of-factly details hardship and deep personal suffering within her experiences in an almost paternal reminder of just how frail life can be.

Rosemary narrates the book at a good pace with an understated and humorous style. She says, “It may be apparent that I often use humour as a weapon with which to bash others over the head, metaphorically of course. Sometimes I wish I was an octopus so I could slap eight people at once.”

The book is written in a style and manner that retains the interest of the reader and allows them to pick and choose which chapter to dive into. Rosemary shares small parts of her personal life in a way which makes her immediately relatable. Some of the things that she chooses to share, such as her relationship with her husband, who she calls her greatest cheerleader, and her children, throw a light on the human side of the person who sits at the front of the Court room.

The book is not autobiographical, in the sense that it starts at the beginning and traverses her life to the end.

Rather it is a compilation of memorable moments and observations from the perspective of a woman with life experience. Her tone is grounded and not pompous.

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The constraints imposed upon the bench are presented in a novel light to the reader, or as Rosemary describes it, “the eye is on you”. However, Rosemary makes no apologies for the language used, which are quotes from real people who appeared in her Court. This will appeal to practitioners who have themselves witnessed or experienced the colourful language that can be heard in Court.

The snippets of narration from her judicial mind are entertaining. She refers to “the rather pompous lawyer” who bravely prefaced his submission with, “Has your Honour ever considered...”, and the cutting commentary running silently through her head in retort.

Rosemary also talks about her time working in the media and successfully directing a short film and a feature film. She downplays the enormity of the task she undertook and relates the story briefly but with a lot of humour.

Each chapter broadly comprises a single anecdote.

This makes it an easy read to pick up and enjoy in brief moments of downtime, although the brevity of each chapter entices you to just read one more, before setting it down.

Each player in her courtroom is brought to life and given the dignity of their own story. In that way, the stories are educative. Rosemary describes the person in the dock in a way that, for the most part, the general public never have cause to consider.

The book is a collection of insightful observations of the courtroom players, through a witty and selfdeprecating lens. It is a book that friends and whānau who have escaped life in the law should read.

Many of the stories have a redemptive quality to them, making the book an uplifting read. This is impressive, given the subject matter the Courts regularly deal with.

Take the story of Aroha: a family violence complainant turned social worker, whose success is packed into a page peppered with academic research and media references. It is informative and heart-warming.

In sharing what she knows, Rosemary Riddell offers great advice. There are some wonderful one-liners and very funny anecdotes. Thoroughly enjoyable and highly recommended. A good book to read over a weekend. *The NZBA thanks Marie Taylor-Cyphers and Maria Pecotic for their entertaining joint review of this book. Given that we invite reviewers to keep the book, we are unsure if it will be kept on a time share basis or if the toss of a coin will determine ownership.

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September 11 – 20 Years On Dr James Farmer QC

Like such landmark events as the first landing on the Moon, the killing of President Kennedy and the death of Princess Diana (on my birthday actually), we all remember where we were at the time. In the case of the terrorist attacks on the Twin Towers in New York and the Penatagon in Washington on September 11, 2001, I was participating in putting Ansett Australia into voluntary administration.

Ansett was at that time a fully-owned subsidiary of Air New Zealand and I was Acting Chair of the latter. More could be said about that and the sequel which ultimately led to the New Zealand Government taking a majority shareholding in Air New Zealand, but I want here to talk about the sequel to the terrorist attacks in the United States and its relevance to New Zealand today.

There were 19 Al-Qaeda terrorists, based in the US at the time. As is well known, the attack was masterminded by Osama bin Laden, a native of Saudi Arabia.

What is lesser known in this country is that in 2003 various lawsuits (since consolidated) were issued in New York against the Kingdom of Saudi Arabia on behalf of the families of the 3000 victims of the attacks, injured survivors and insurers who have paid out billions of dollars in compensation for property damage. The claims made in the litigation allege that agents, officials and employees of the Saudi Government provided assistance to the hijackers and plotters. It is alleged also that al Qaeda’s development into a sophisticated terrorist organisation was driven principally by financial and operational support from “da’wa organisations” (said to be charities) established and sponsored by the Saudi Government. An attempt by that Government to strike out the court proceedings failed.

To facilitate the hearing of the proceedings on its merits, on 27 September 2016 the US Congress enacted the Justice against Sponsors of Terrorism Act which, in the case of foreign States designated as sponsors of terrorism, removed the defence of sovereign immunity normally accorded to foreign States in accordance with principles of international law. That enactment has allowed the litigation to proceed. The current position that has been reached is that former Saudi officials have been deposed under oath, although the depositions and certain Government documents presently remain under seal.

How does this concern New Zealand? Followers of the America’s Cup will know the answer immediately.

Jeddah, in Saudi Arabia, is on Team New Zealand’s short list for the hosting rights of the next Defence by the Royal New Zealand Yacht Squadron of the Cup as well as sponsorship of Team New Zealand’s campaign. Note the words “Royal New Zealand” and note too the words “New Zealand” in Team New Zealand.

Elsewhere many have expressed dismay at the abrogation by Team New Zealand of its moral obligations to the New Zealand Government, the people of New Zealand and the Auckland Council in its moves to take the Defence away from New Zealand.

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I have previously written on the same subject, first in December 2017 when it was first mooted after the Cup was won in Bermuda and then again more recently.

When the last Defence was held here earlier this year, it was (rightly) said by Team New Zealand: “The AC75s and the unprecedented broadcast reach of the exciting racing from Auckland’s stunning Waitemata harbour have really put Auckland and the America’s Cup at the forefront of international sport”.

If the next Defence is conducted in Saudi, what will the Team New Zealand PR department write then?

Jeddah is widely regarded as being the likely winner of the “hosting fee” contest. To begin with, it is unlikely to have internal critics of funding the event that exist in the other two foreign cities on Team New Zealand’s short list (Cork and Valencia). And Saudi Arabia has shown that it is willing to throw money around to seek to buy respectability in international sport. The Guardian on 28 March 2021 reported that Saudi had “spent at least $1.5bn on high-profile international sporting events in a bid to bolster its reputation”, what was described as “’sportswashing’, the practice of investing or hosting sporting events in a bid to obscure the Kingdom’s poor human rights record, and tout itself as a new global venue for tourism and events”. The Guardian had reported earlier (on 2 September 2019) on the establishment of a Saudi Sports Development Fund which has successfully bought and brought to Saudi motor sport (including Formula 1 later this year), boxing, wrestling, basketball, football and golf.

The Guardian described these Government-backed endeavours as “a soft power tactic to help distract from the Kingdom’s ongoing human rights abuses”.

The Guardian, in both articles, referred specifically to the Saudi intervention in Yemen, part of a war that has killed over 100,000 people including 12,000 citizens and left 14 million people at risk of starvation. Further, a recent US Intelligence report named Crown Prince Mohammed bin Salman as ultimately responsible for the murder and dismembering in the Saudi Consulate in Istanbul of journalist Jamal Khashoggi in 2018, followed by a death threat by a senior Saudi official against a United Nations Investigator, Agnes Callamard, who was investigating that murder.

So here is the question.

It is clear that Team New Zealand, or rather those that control it, do not recognise a moral obligation to the country whose name they have appropriated so far as the venue for the next Defence of the America’s Cup is concerned. But, arguably even more importantly, will it recognise an obligation to the international reputation of this country? Or does Team New Zealand simply believe “we won the Cup, therefore we own it, it is ours to sell to the highest bidder and if that means aligning New Zealand to a country that more than any other has fostered terrorist activity, that’s not our problem”.

SEPTEMBER 2021

Petrol Heads’ Corner

Expensive moments and whoopsie moments David O’Neill* Expensive moments and whoopsie moments – aka “to race or not to race”. I have not been doing any racing, nor fanging around in exotic cars lately, so your beloved editor [Sub ed: beloved is a bit strong, isn't it?] suggested that I give you an insight into those whoopsie moments and the expenses of racing plus some other tidbits …

What not to do!

One thing I can assure you – racing is expensive! It’s one of those things where you do not take your beloved with you to the accountants to hear about what it cost you that year. I naively did that some years ago and, so far, it has cost me (and I wasn’t invited) a trip to Samoa, a trip to Fiji, a trip to the Otago Rail Trail and multiple annual visits to WOW in Wellington (with associated expenditure).

My current race car cost me a piano. You know all that rubbish about no secrets in marriage? Well forget it, if you want to race a car, keep your gob shut about the cost of running it.

You can see that your better half works out very quickly that what is good for the goose is good for the gander, so any money you spend on a race car is balanced up by expenditure on the other half of the ledger (so to speak).

Expenses For the purposes of this article, I did a quick tot up of what I had spent in any financial year on car racing, and roughly I will have spent about $24,000 (plus GST).

Not much you say. This is for 2 rallies.

To put it in perspective, however (this is the justification bit), $6,400 went on a new engine (and I’ll come to that later), so running expenses were about $17,500. Not bad you say! You try explaining that to my wife!

The main Targa, entry fees excluded, cost me about $8,000. This is because I take my co-driver and my two mechanics with me and pay all their expenses (and they eat and drink a lot). And petrol just for my car cost $840. Working it out on a $2.50 per litre basis, my car consumed 337 litres of petrol in the space of five days. The big cars will use two or three times more than that.

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Tyre wear is such that I will probably cut out four tyres over five days’ rallying on tarmac. Entry fees for the Targa NZ this year are $7,500 + GST.

When things go wrong Of course, it’s all very well if everything goes swimmingly. So far, with my new car, they haven’t.

This is in direct comparison to my old car which didn’t put a foot wrong but was slow to boot. The new car is quicker, but so far I have chewed through three motors and... the first motor that I built up cost me $6,400 plus bits and pieces here and there. That went ‘pop’ after about two days so back to the engine rebuilder, who was honourable enough to rebuild it again for nothing.

It developed a similar noise in the motor by the end of the big Targa that year. It cost me another $3,000.

Other costs that you can expect to incur are a complete oil change in the gearbox and motor each rally, full wheel alignment and balancing between rallies, and a complete check-up of all bearings, wheels, tyres, new brake pads, new brake fluid, checking the motor and checking for rattles and bangs.

All of this takes time and money.

Whoopsie moments Then again, there are those moments which you would prefer others did not catch on film. Believe me – it happens. I’d been banging on at the media guys a few years ago about us slow pokes never getting on TV. Murphy’s Law – I spun out in front of a TV camera, and this was played ad nauseam on national television.

However, there are occasions (and you are not insured for this when you are racing) that things go badly wrong. This often requires running repairs to keep on going if it’s possible or retirement from the rally, loss of your entry fee and deposits all around the countryside.

You can see from these photos that things do go badly wrong.

The silver car was on its first outing ever with the new owner. He had just celebrated his birthday the day before, got it terribly wrong in a corner and instead of

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flying round the corner in spectacular style, flew off the edge, into a paddock and rolled upside down. He had offered me lots of money to not publish this photo, but being true to my journalistic ethos, I decided to go ahead and publish. He still speaks to me – sort of……

I used to have a lovely little yellow car. On my second outing in 2006 I managed to roll and wreck it completely. I’ve tried to find the photos but cannot.

Needless to say, it broke my heart (and cost me a trip to Fiji).

The photo below was on the Ohakune mountain climb.

The photo has been ‘Photo-shopped’ to give the corner a new name and a new number plate. However, it managed to make a bit of a mess of the front end, wreck the radiator, smash some of the mounts and probably cost a few thousand dollars to fix up.

Racing is like that, however. There are times when you can’t avoid it and there are times when you outdrive your skill level. Most whoopsie moments happen because of the latter. There’s a saying that there are those race car drivers who have crashed and those that are going to crash.

In regard to the silver car, (photo next page) I do know this cost the owner $15,000 to repair. However, it’s a much more sophisticated car than anything I drive. We usually end up going to the wreckers to get parts when we want them.

The owner of my old black Civic has managed to prang it twice now. The first time he went out he got over excited at a corner, went round it at the speed of light and managed to park it up the bum of a Fiat parked in a bank.

I can assure you that nobody in any of these photos or any of the moments I refer to has been hurt. We all get knocked about and bruised, but nine times out of 10, you walk away and that’s because of the safety gear.

Having learned this salutary lesson, he then entered Targa Rotorua. I remember coming down out of the hills on a special stage, seeing him parked in the paddock and wondering how on earth he got there.

A friend of mine in Targa had a mechanical mishap at about 200 kph. There is a spectacular series of photos where the car went rapidly sideways, caught a wheel and barrel-rolled twice in the air before rolling off the road and into a ditch. It was absolutely destroyed; both the driver and co-driver got out and walked off. The only thing that was hurt was the owner’s pocket as it cost him a brand new car.

We later heard that he came down out of the hills at break-neck speed, going far too fast for the corner, managed to put it sideways between two trees which were spaced about the width of the car apart, took out a wire fence, missed another tree and managed to park it up with nothing more than a few scratches across the bonnet.

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SEPTEMBER 2021

out of the car. Don’t know why … [Sub-Ed - I cannot believe I agreed to publish this picture.]

Therefore, for those of you who want to go racing, just do it. Don’t let any concerns get in the way, just do it.

Bear in mind, however, buying the race car is one thing.

Running it is another and it usually costs you about the same value as the race car annually and then on top of that, when you have a prang, it really starts to hurt. By the same token, the race car community is pretty tight, and people rally around and assist in any and every way they possibly can.

This guy is a pastor in his local church, and I asked him how on earth he missed all the trees. His reply was that he shut his eyes and prayed. Obviously, the big guy was listening.

Then of course there is the Tui Brewery at Mangatainoka. This is a favourite with the Targa guys – see photo. These two girls greeted us when we rolled in a couple of years ago. My co-driver refused to get

So, I started this article with the title – “to race or not to race” – that’s up to you. You are either hard wired that way or you are not. I am. If you are, then get out there and do it. You will never regret it – your wallet might, but so what……….

Meanwhile, Mrs Petrol Head is planning another trip – without me.

Until next time - when I'll have some real racing to talk about or another car to tell you about. * David O’Neill is a Hamilton barrister, the NZBA treasurer and only fiscally responsible with other people's money.

Events Over the last few months the NZBA has been organising a series of informal social gatherings, which have been hosted by different Chambers. As our President, Paul Radich QC, stated in the Annual Report he presented at the AGM, collegiality is an important part of life at the bar, because it strengthens the networks barristers rely on in their work in good times and in bad. We are very grateful to the chambers who have volunteered to become involved in this programme, including (in no particular order) Princes Chambers in Dunedin, Riverbank Chambers in Hamilton, Tauranga Chambers, Shortland Chambers and Bankside Chambers – both in Auckland, Clifton Chambers, Thorndon Chambers, Stout Street Chambers and Barristers.com, all in Wellington.

SEPTEMBER 2021

Clifton Chambers Drinks

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2020 – 2021 COUNCIL CONTACT DETAILS PAUL RADICH QC – President Ph: +64 4 974 5951 Paul.radich@cliftonchambers.co.nz PHILLIP CORNEGÉ Ph +64 7 282 0572 Phillip@phillipcornege.com KATE DAVENPORT QC Ph: +64 9 307 8787 kate@katedavenportqc.co.nz SIMON FOOTE QC Ph: +64 9 307 8784 swbf@simonfoote.co.nz FELIX GEIRINGER Ph: +64 4 909 7297 felix@geiringer.law TARYN GUDMANZ Ph: +64 3 477 8781 taryn@princeschambers.net ISWARI JAYANANDAN Ph: + 64 9 263 0047 iswarij@yahoo.co.nz SAM JEFFS Ph: + 64 9 973 0272 sam.jeffs@bankside.co.nz STEPHEN LAYBURN Ph: + 64 9 300 5485 stephen@stephenlayburn.co.nz RICHARD MCGUIRE Ph: +64 3 962 4241 richard.mcguire@pds.govt.nz TIHO MIJATOV Ph: +64 4 472 9027 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL Ph: +64 7 839 1745 david.oneill@nzbarrister.com JAMES RAPLEY QC Ph: +64 3 964 8000 james.rapley@bridgesidechambers.co.nz SETAREH STIENSTRA Ph: +64 9 309 7889 Setareh@publiclawchambers.com ANNE TOOHEY Ph: +64 3 260 3101 anne@annetoohey.com ESTHER WATT Ph: +64 4 260 5041 esther.watt@stoutstreet.co.nz MAGGIE WINTERSTEIN Ph: +64 9 262 1126 m.winterstein@libertylaw.co.nz