At the Bar March 2018

At The Bar March 2018

Gender Equitable Engagement and Instruction Policy Barristers and AML/CFT Leave to Withdraw as Counsel NZBA Intervention: Amicus Curiae and Standby Counsel Old and New Courts Take Centre Stage www.nzbar.org.nz

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YOUR ASSOCIATION 4 From the President – Clive Elliott QC 8 Gender Equitable Engagement and Instruction Policy – Launch of a new policy 12 Anti-Money Laundering and Countering Financing of Terrorism Act - its application to barristers 17 New Members – recently joined members 19 NZBA’s Mentoring Programme – making the most of mentoring 37 DragonDictate: an Essential Tool – a new member benefit to improve your workflow LEGAL MATTERS 15 Leave to Withdraw as Counsel – the lessons from Burgess v Monk 18 Appointing Amicus Curiae and Standby Counsel in Criminal Trials – Fahey v R 21 A Performance Approach to Advocacy – how acting training can help at the Bar 23 Old but venerable – Auckland High Court and Dunedin Courts 26 The Cutting-Edge Court – Christchurch Justice Precinct PRACTICE AND LIFESTYLE 27 The End of Retirement as We Have Known it – is retirement an outmoded concept? 31 Residential Property as an Investment – is property the answer? 34 Digital Marketing – making the most of your online opportunities 39 PlanetWine – a new member benefit offer 42 Petrol Heads' Corner – David O’Neill on the Range Rover Vela

Cover photo: Re-opening of the Dunedin High Court - the Otago Bench and Bar

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 - Chair Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz

Jacqui Thompson (Contributions & Advertising) Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224

NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 4516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140

From the President Clive Elliott QC*

Tēnā koutou. 2018 has started at a rapid rate and its hard to believe we are already a quarter of the way through the year. There seems little time to reflect and look forward, but recent events have demonstrated how important it is to reflect on what has been happening and on what we need to do to effect change. Later on this column, I comment in more depth about the recent discussions following revelations of harassment in the profession. I want to stress how seriously we view these issues. As a legal organisation, our natural response is one of caution and a focus on due process and fairness, determining the facts and considering the appropriate response. But this does not in any way detract from the recognition that there is a problem and that it must be properly addressed. More about this later. Anti-Money Laundering and Countering Financing of Terrorism Act: From 1 July 2018, the Anti-Money Laundering and Countering Financing of Terrorism Act (the Act) will apply to any involvement that a barrister has, in the ordinary course of the barrister’s business, in advising on, documenting or effecting a transaction involving real property. Paul Radich QC outlines the issues in an article on p12 of this issue. The Bar Association is applying to the Minister of Justice under section 157 of the Act for an exemption from the requirements of the Act in circumstances in which a barrister acts on direct instructions from an instructing solicitor or the Crown. Until that is in place, barristers will need to be careful to comply with the Act's requirements. Mentoring On 8 March 2018 (International Women’s Day) the NZBA relaunched its mentoring programme. Mentoring is critical to the development of a healthy and well functioning profession. We also see it as having an increasingly important place as we face the future challenges of automation, including the development of expert systems for legal research and information; as well as increased pressures brought about by a shrinking legal market. The Association also recognises that without diversity the profession will face an increasingly uncertain future. For this reason, we are focusing more of our attention on encouraging members from a wider range of backgrounds to become mentors, and to seek mentoring. I would urge you all to view the mentoring pages on our website, and if you have any questions to contact our Executive Director, Melissa Perkin at melissa.perkin@nzbar.org.nz. For more information, refer to the article on p19 of this issue. Council activities We ended 2017 not just with our Christmas functions, but with a special sitting to mark the closing of the old Christchurch High Court. Since the first earthquake in 2010, the people of Canterbury have faced hardship and uncertainty. The building of a new Justice precinct was seen as an anchor project in the rebuild. It was to be the beginning of a new era. Many felt the poignancy of moving from the old Court into the modern purpose-built surroundings of a complex that housed not just courts, but the executive and emergency service agencies. The final sitting stressed the need to retain the lessons from history and the traditions that tie us to the rule of law, which is fundamental to what we do in the profession. In the New Year, there was a special sitting to mark the opening of the new justice precinct. NZBA Vice-President (South Island), Jonathan Eaton QC, spoke at the opening of the new Justice Precinct.1 There is more about this later in this issue (p22) but I would like to take a moment on behalf of the Council to wish the judiciary, the Court staff and the Canterbury Bar all the best in their new accommodations.

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Another landmark moment was the reopening of the historic Dunedin courthouse. The 116 year old building was closed in late 2011 after it was deemed to be an earthquake risk. After some deliberation, the Government invested $30 million in its rebuild. I was privileged to speak at the reopening in January this year and to join the procession through the streets of Dunedin with the rest of the legal fraternity. As I commented at the time2, courts like this are so much more than bricks and mortar. Not only must the courts be open to the public, but they themselves must remain open and be properly functioning. All too often today, we hear troubling reports of courthouses around the world being closed. For example, in England and Wales, in the last six years, no less than 250 courts have been closed. In this regard, it is appropriate, to recognise and applaud the government for funding the important remedial work on this priceless building. I also want to mention the 150th anniversary sitting at the Auckland High Court. The fondness with which this building is held by the profession was demonstrated by the large numbers of practitioners who attended the sitting. Again, there is a fuller article about the court later in this issue, and the full text of my address at the ceremonial sitting is available on the NZBA website.3 Ceremonies were held to welcome three new members of the High Court bench this year. Paul Radich QC spoke for the NZBA at Associate Judge Johnston’s swearing-in ceremony in Wellington. Associate Judge Johnston served on the NZBA Council from 2006 – 2011. Kate Davenport QC addressed the court at Justice Powell’s swearing-in ceremony, and Simon Foote spoke on behalf of the NZBA at Associate Judge Andrew’s swearing-in ceremony, both which were held in Auckland. We are 30! It’s equally hard to believe but 2018 marks the 30th anniversary of the New Zealand Bar Association. This year’s Annual Conference, to be held on 21 – 22 September in Rotorua, acknowledges this anniversary. Its theme is "The New Zealand Bar Association at 30: Wisdom from the Past, Realities of the Present, and Ambitions for the Future”. We will be circulating more information about this important conference shortly and are looking forward to seeing many of you there. Committee News As mentioned, our Mentoring Committee has been extremely busy with a relaunch of our mentoring program and the hosting of an event at Bankside Chambers in Auckland. Updated guidance materials are now available on our website as outlined in an article on p19 of this issue. I encourage you all to consider the benefits of mentoring, or being mentored. The Bar Care Sub-Committee is aimed at being there for NZBA members in times of emotional need. There are times when things get too much for any of us and there are times when having an independent but objective view point can be of assistance. The Bar Care Committee Chair, David O’Neill, reports that the committee has been under-utilised. He encourages anyone who needs guidance or assistance or who is trying to deal with a matter that is proving to be difficult to contact him. If you have that “skeleton in the closet” or a file that has become “too hard” - we all have them from time to time – then please contact David via the NZBA Secretariat. It doesn’t cost you anything other than a phone call and a bit of time. A big vote of thanks goes to the members of our Gender Equity Committee. They have been tireless in their efforts to launch the Gender Equitable Engagement and Instruction Policy. The policy requires signatories to commit to increasing the proportion of women lawyers leading court proceedings and other contentious matters. Several leading corporate clients and law firms have committed to the policy, which is being jointly promoted and managed by the New Zealand Bar Association and New Zealand Law Society. For more information on this excellent initiative, please refer to the article on p8 and on our website.4 Eaton, J NZBA address at the ceremonial sitting of the opening of the no.1 High Court in Christchurch https://www.nzbar.org.nz/news/nzba-addressceremonial-sitting-opening-no1-high-court-christchurch-31-january-2018 (accessed 11/03/2018) 2 Elliott, C Address on the occasion of the Re-opening of the Dunedin Court on 26 January 2018 https://www.nzbar.org.nz/news/address-president-new-zealandbar-association-reopening-dunedin-court-26-january-2018 (accessed 11/03/2018) 3 Elliott, C Auckland High Court 150th Anniversary Sitting Address https://www.nzbar.org.nz/news/auckland-high-court-150th-anniversary-sitting-address-cliveelliott-qc (accessed 11/03/2018) 4 https://www.nzbar.org.nz/news/gender-equity-increasing-lead-roles-women-lawyers 1

Objective 3 of the Association’s Strategic Plan is to promote diversity and equality at the bar and the wider legal profession. We held a meeting of an informal diversity working group in late February. The group met to consider some fundamental questions: 1. 2. 3. 4. 5. 6. 7.

Is the NZBA representative/inclusive? What are the barriers for entry to the Bar? What is the progression in the Bar? Is it a congenial place to work? What are the issues NZBA is trying to tackle? Does a lack of visibility of law as a career option stop people trying law as a career? Does the Bar do anything to sell itself to universities?

The group was also fortunate to have as its guest, Lesley Wan. Lesley is visiting from the United Kingdom and has had extensive experience, including in developing Lloyds Bank Group’s Breakthrough Mentoring Programme. We appreciate Lesley’s willingness to share her insights with us. We welcome a new member to our Training Committee, Auckland barrister Sarah Wroe. She replaces Lisa Hansen, who has moved from training to concentrate on her roles in mentoring, gender equity, annual conference and our recently formed Management Committee. We look forward to working with Sarah. Complaints of Harassment Finally, I come to an issue of crucial importance to the legal profession, and indeed society as a whole. Over the last few weeks, revelations of the profession’s response to complaints of sexual abuse and harassment have demonstrated that there is a serious problem that calls for concerted, immediate action. This issue is not isolated to one firm or one individual or indeed the legal profession, as recent events show. As stated in a recent article by our President-Elect, Kate Davenport QC, the time has come to deal with this issue5. In our recent press statement on the subject6, the NZBA made it clear that it has a zero-tolerance approach to all forms of abuse, harassment and bullying within the profession. We remind all lawyers of their obligations under the rules, including the requirement to treat other lawyers with courtesy and respect, and to report misconduct to the Law Society. The NZBA is committed to eliminating harassment and discrimination at the Bar and ensuring professional conduct by all barristers. This starts with individual standards of behaviour, but includes workplace culture and policies. The newly established NZBA Conduct and Values Committee has been tasked with raising awareness about what constitutes harassment and discrimination, suggested policy guidelines for the Bar and providing information and support for people who are affected. The NZBA will be participating in the working group on sexual harassment reporting announced by the Law Society on 1 March 20187. We fully support this initiative and intend to play an active part in the working group’s efforts. Davenport, K “#timesup for the legal profession (updated 5 March 2018)” https://www.newsroom.co.nz/@the-interns--the-law-firm/2018/02/27/92817/timesupfor-the-legal-profession (accessed 6 March 2018). 6 New Zealand Bar Association “Media Statement re Sexual Misconduct Complaints” https://www.nzbar.org.nz/news/nzba-media-statement-re-sexualmisconduct-complaints (accessed 6 March 2018). 7 New Zealand Law Society “Law Society announces working group to focus on sexual harassment reporting” http://www.lawsociety.org.nz/news-andcommunications/news/law-society-announces-working-group-to-focus-on-sexual-harassment-reporting (accessed 6 March 2018). 5

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The Wider Issues – Gender, Diversity and te Reo and Tikanga Māori We have received feedback from several people that they would like to see the NZBA make a stronger statement that this current crisis is not just a workplace safety issue, but also a wider gender issue. We accept that there is an overlap with gender, as demonstrated by statistics on the reporting of sexual harassment. However, behaviour such as harassment and bullying exists wherever there is a power imbalance. Clearly, that imbalance currently exists in respect of gender and diversity. With this in mind, the NZBA Council has directed its committees to consider a multipronged approach in developing methods for redressing the power imbalance and lack of diversity. As mentioned, our Gender Equity Committee is focused on initiatives to empower women in the work place, to ensure that the power balance and culture is more representative of women. It is critical that the joint Gender Equitable Engagement and Instruction Policy gains widespread adoption and I encourage you all to read it and support it. In the same way, our diversity working group is working on measures to make the Association and the profession more inclusive and accepting of minorities. We are attempting to encourage people from a wider range of backgrounds to join our committees and mentoring programme, and to help all members succeed at the Bar. I am shortly to attend the World Bar Conference in South Africa. There will be several sessions on gender and diversity both within the profession and the judiciary, which I hope will be useful to us in our work on these issues. I will report back in the next issue of At the Bar. Finally, I need to acknowledge the steps taken by the Senior Courts to increase the use of te reo Māori. Our Training Committee has received a proposal for training members of the Bar in tikanga Māori and the use of te reo and is considering how this can be delivered to our membership throughout New Zealand at a reasonable cost. Please continue to give us feedback on what you consider to be useful initiatives and priorities in addressing the issues that are affecting the independent bar or hindering its development. Your feedback is important to us. *Clive Elliott QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email our Executive Director, Melissa Perkin at melissa.perkin@nzbar.org.nz.

Auckland Bench and Bar at 150th Anniversary Sitting.

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Welcoming the Gender Equitable Engagement and Instruction Policy Jenny Cooper QC and Gretta Schumacher *

In 2018, women constitute the majority of practising lawyers, and yet represent fewer than 35% of law firm directors, fewer than 24% of partners in law firms, and only 18.7% of QCs. Can the recently launched Gender Equitable Engagement and Instruction Policy address these woeful figures? ranks of QCs, these are clearly positions which provide higher levels of status and influence within the profession. In particular, law firm partners and leaders at the bar play a key role in defining the values and culture of our profession. The underrepresentation of women in these leadership roles matters.

A global conversation about gender issues has been sparked in the last 12 months by the #metoo and #timesup movements. As that conversation has reached the legal profession, itâ&#x20AC;&#x2122;s clear that sexual discrimination, including both conscious and unconscious bias, still affects women in the law. Nine years after the New Zealand Bar Association (NZBA) first launched an Equitable Briefing Policy in 2009 it still feels as though there is a long way to go to achieve the goal of gender equity.

Happily, there is reason for optimism. In December last year, the NZBA and the New Zealand Law Society jointly launched the Gender Equitable Engagement and Instruction Policy. The Policy includes a specific target for at least 30% of lead roles in court proceedings, arbitral proceedings and major regulatory investigations to go to women barristers or solicitors. Crucially, it also imposes reporting obligations on Policy adopters to track whether the target is being met.

In 2018, women constitute the majority (just) of practising lawyers. But despite this, women still make up fewer than 35% of law firm directors, fewer than 24% of partners in law firms, and only 18.7% of Queen's Counsel. Although not all lawyers (whether male or female) necessarily aspire to be directors or partners or to join the

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7 years now. Doubtless we can do better and in adopting this Gender Equitable Engagement and Instruction Policy we are redoubling our commitment. We like the Policy’s clear expression delineating “why” from “what” – that allows Policy adopters, whether clients or lawyers, to understand why we pursue equitable engagement practices. So, the connection between the Policy’s functional/ measurable part (a target of at least 30% of litigation lead by women) and the ambition that lies behind it is a critical part of the Policy. The ambition to drive cultural change in the profession to deliver greater diversity, to correct the under-representation of women in lead roles (especially in commercial litigation), to support the development progression and retention of women in firms and at the bar is something we are proud to sign up to.”

One of the most encouraging features of the new Policy is the widespread and enthusiastic support it has received from clients, firms, and the bar. The Policy adopters at the launch date included a number of major law firms, namely Anderson Lloyd, Bell Gully, Buddle Findlay, Chapman Tripp, DLA Piper New Zealand, Kensington Swan, Minter Ellison Rudd Watts, Russell McVeagh and Simpson Grierson. Initial Policy adopters also included major corporates such as ANZ, Auckland Airport, Chorus, Contact, Countdown, Fonterra, Lion, Meridian, Samsung, Spark, Stuff, Watercare, and Westpac. Crown Law was also an initial adopter and Shortland Chambers led the way as the first chambers to adopt the Policy, with Bankside Chambers, Clifton Chambers and Richmond Chambers following thereafter. One of the reasons for the Policy’s success in attracting support is that it reflects the values that many firms and clients are seeking to promote within their own organisations. Speaking about ASB’s reasons for recently becoming a Policy adopter, General Counsel and Company Secretary Graeme Edwards commented that: “The Policy’s objectives are aligned with ASB’s values and our own diversity and inclusion initiatives. While ASB already regularly instructs women lawyers in lead roles, adoption of the Policy is a tangible way of evidencing our commitment to diversity and holding ourselves accountable.”

While many of the initial Policy adopters are large firms and corporates, it is important to be clear that the Policy is not just for them. It is aimed at all forms of litigation and at firms and clients of all sizes and in all regions. Everyone is encouraged to sign up. This includes members of the bar barristers have an influential role on the distribution of work, both at the bar and within firms. Explaining why Shortland Chambers chose to become a Policy adopter, its Chair, Daniel McLellan QC, said:

Crown Law is another key supporter of the Policy. Asked about Crown Law’s reasons for supporting the Policy, the Solicitor General, Una Jagose QC, explained that:

“The decision to support this initiative was an easy one for Shortland Chambers. It reflects our own ambition to continue to build a membership that reflects society. Gender equity is just one part of this, but there is an immediate need to recognise that women are significantly under-represented in senior roles in many firms and barristers’ chambers, and in major litigation. Despite the efforts of practitioners and clients to remedy the imbalance, progress has been slow.

“Solicitor-General Dr David Collins QC (now Collins J) first adopted the NZBA’s equitable briefing policy in 2011. Crown Law has had a policy of working to develop diversity of the bar through its external briefing practices for some

This strong and creative initiative by the NZLS and NZBA, with the support of many lawyers and consumers, is welcome and Shortland Chambers was pleased to be the first chambers to endorse it.” The NZBA encourages all members to adopt the Policy. We look forward to supporting all our members, chambers, colleagues and clients in adopting and administering the Policy. For more information about the Policy see our FAQs below, or the NZBA website.

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FAQs about the Gender Equitable Engagement and Instruction Policy 1. What types of legal work does the Policy apply to? The Policy’s target of at least 30% (calculated either by number or by value of fees) of leading roles going to women applies specifically to court proceedings, arbitral proceedings and major regulatory investigations. This includes criminal, civil, and specialist court proceedings and investigations.

3. Who has adopted the policy so far? Policy adopters at the launch date were: ANZ, Anderson Lloyd, Auckland Airport, Bell Gully, Buddle Findlay, Chapman Tripp, Chorus, Contact, Countdown, Crown Law, DLA Piper New Zealand, Fonterra, Kensington Swan, Lion, Meridian, Minter Ellison Rudd Watts, Russell McVeagh, Shortland Chambers, Simpson Grierson, Samsung, Spark, Stuff, Watercare, and Westpac.

The goal of ensuring the fair allocation of work is of course equally applicable to all legal work, not just litigation. With this in mind, NZBA and NZLS intend to review the scope of the Policy as part of a review of the Policy as a whole, to be carried out within 3 years.

Since the launch, others have been added to the list including ASB, Air New Zealand, the Broadcasting Standards Authority, Wilson Harle, Bankside Chambers, Clifton Chambers and Richmond Chambers.

2. Why is the target only 30%? There are several reasons why 30% was adopted as the initial target (noting that it is to be reviewed within 3 years with a view to increasing it to 35%): •

First, there is still apprehension in some quarters about having any target at all. We wanted to get widespread support for the Policy by having an achievable initial target which can be increased over time, rather than set one that could be portrayed as unrealistic and risk the Policy failing to get traction.

•

Secondly, while we don’t yet have data on the issue, we suspect that achieving the target would be a significant improvement on the status quo. NZBA is currently undertaking a research project, generously funded by The Law Foundation, on the gender ratio of senior and junior counsel appearing in the Court of Appeal and Supreme Court. This will shed more light on the current situation and will help us to make appropriate adjustments to the target figure when the Policy is reviewed.

•

Thirdly, while approximately 50% of lawyers are women, women comprise only 39% of barristers and 18.7% of QCs. While we want that to change, it will take time – hence our aim to steadily increase the target over time.

• Finally, it is important to note that 30% is the target minimum not a cap. Figures above the target are certainly to be welcomed and encouraged.

We hope to broaden the list of policy adopters over time to include smaller and mid-sized firms, barristers, and as many public and private sector users of legal services as possible. 4. Can barristers sign up as Policy adopters? Yes, and we encourage them to do so, either individually or through their chambers. While barristers may not generally instruct other lawyers, they can implement and support the Policy in other ways, including: • Considering and including female lawyers (either solicitors or barristers) when asked to give recommendations and referrals to clients; • Using gender equitable selection processes to fill roles within chambers; and •

Providing opportunities for the development of female lawyers, including by giving speaking roles to women appearing as junior counsel in court and arbitral proceedings whenever it is practicable to do so. The recent announcement by the Court of Appeal encouraging greater participation of junior counsel in hearings is a welcome step in this regard.

5. What are the reporting obligations for Policy adopters? Policy adopters are required to provide a confidential report to NZLS every two years. The format of the reporting is still being developed and will be different for clients, firms and barristers. Clients will need to include information on the number of male and female lawyers engaged by

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them in relation to court proceedings, arbitral proceedings and major regulatory investigations. That obligation will not apply to firms and barristers, but they will need to report on steps they have taken to implement and support the Policy.

Why equitable briefing matters

6. Does the Policy apply to internal instructions to in-house counsel? Yes. Instructions to in-house counsel are included in just the same way as instructions to external counsel. Therefore, where a female in-house counsel takes the lead role in a court proceeding, arbitral proceeding, or major regulatory investigation, that will count towards her employer meeting the 30% target. Nonlegal services and instructions to non-lawyers (e.g. investigators, experts or managers) will not count and are not part of the Policy targets or monitoring obligations.

The lack of women in the higher ranks of the profession affects both those already in the profession and those first entering it. In an AUT study, when asked about their prospective careers in a law firm, 85% of female respondents reported they perceived barriers to their progression in their current firm. Only 20% of females (compared to 40% of males) considered they had a moderate level of opportunity available to them.

7. How can I find a female barrister? For a quick way to remind yourself of all the talented women practising at the bar and where to find them, you can search for female barristers using the “Find a Barrister” search page on the NZBA website. The “Advanced Search” menu enables you to search by gender. Or ask around for recommendations.

In 2016, a Law Society survey of junior lawyers indicated that new female lawyers considered overwhelmingly that it was more difficult for women to progress in the law than men. A survey of 531 female lawyers in their first five years of practice found that 67% felt that their gender had a bearing on their prospects in the legal profession.

8. How can I sign up or help to promote the Policy? To adopt the Policy, you simply need to notify NZLS by email to equitable@lawsociety.org.nz. NZLS and NZBA publish the names of all Policy adopters and adopters are also free to publish the fact that they have adopted the Policy. We encourage all NZBA members to adopt the Policy and to promote it to their colleagues, instructing solicitors, and clients. A full copy of the Policy is available on the NZLS and NZBA websites, www.lawsociety.org.nz and www.nzbar.org.nz.

This perception by female lawyers of a lack of opportunities for them to progress in their chosen career has a negative impact on the lives of many individual women, and also on the profession as a whole through the loss of talented female lawyers who leave the profession; the loss of female lawyers who never enter certain areas of the law because of real or perceived barriers; and the under-utilisation of talented lawyers because of inequity in briefing practices. These are the problems the Policy seeks to address.

For more information feel free to contact any member of the NZBA Gender Equity Committee. We welcome all feedback, questions and comments on the Policy. Gender Equity Committee members: Jim Farmer QC (Co-chair) Kate Davenport QC (Co-chair) Paul Radich QC Jenny Cooper QC Karen Feint Simon Foote Lisa Hansen Lara Mannis Jane Meares Gretta Schumacher

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(Sources: https://www.nzlawyermagazine. co.nz/news/women-lawyers-nowoutnumber-men-in-nz-245958.aspx; https://www.radionz.co.nz/news/ national/295517/equal-number-of-female,male-lawyers-for-first-time.; https://www. lawsociety.org.nz/law-society-services/ women-in-the-legal-profession/by-thenumbers). 11

Anti-Money Laundering and Countering Financing of Terrorism Act: Application to Barristers By Paul Radich QC and Dr Derek Johnston*

An overview From 1 July 2018, the Anti-Money Laundering and Countering Financing of Terrorism Act (the Act) will apply to any involvement that a barrister has, in the ordinary course of the barrister’s business, in advising on, documenting or effecting a transaction involving real property. Unless the barrister chooses to avoid becoming involved in work of that sort (for example, by leaving work of that nature to their instructing solicitor, or to another solicitor) he or she will be subject to the compliance obligations in the Act. The Bar Association is applying to the Minister of Justice for an exemption from the requirements of the Act in circumstances in which a barrister is acting on instructions from an instructing solicitor or directly from the Crown. But, unless and until the exemption is in place (or if it is in place and a barrister is acting on direct instructions), barristers need to be aware that it is possible that aspects of their practice will be subject to the Act. The application of the Act The Act will apply to “law firms” on 1 July 2018. A “law firm” is defined in s 5 of the Act to include a barrister. However, under s 6(4)(c), the Act applies to a barrister only to the extent that the activities carried out by the barrister are described in the definition of “designated non-financial business or profession” in s 5 of the Act. Under s 5, (as relevant here) a “designated nonfinancial business or profession” means a barrister who, in the ordinary course of business, carries out one or more of the activities that are then listed.

Transactions involving estates, interests or rights and real property Subparagraphs (a)(vi)(A) and (B) of the definition of “designated non-financial business or profession” relate to transactions (within the meaning of s 4(1) of the Real Estate Agents Act 2008) involving real property. Subparagraph (A) captures a barrister who engages in (or gives instructions on behalf of a client to another person for) any “conveyancing” to effect a transaction involving real property. The term “conveyancing”, as defined in the Lawyers and Conveyancers Act 2006, involves legal work carried out for the purpose of effecting or documenting any transaction or prospective transaction involving an estate, interest or right in any real property. Subparagraph (B) captures a barrister who, in the ordinary course of his or her practice, engages in or gives instructions on behalf of a customer to another person for a transaction involving real property. It seems unlikely a barrister would, in the ordinary course of his or her practice, personally engage in any real estate transaction or give instructions on behalf of a client to another person for a real estate transaction. However, if a barrister were, in the ordinary course of their practice, to give instructions on behalf of a client to another person (for example a real estate agent or a nominee for the client) for a real estate transaction, that will likely amount to the conduct of a designated nonfinancial business or profession by the barrister and be caught by the Act. Consequently, any involvement by a barrister, in the ordinary course of their business, in: (a) advising on or documenting a litigation settlement or other transaction involving real property (for example, a settlement of a matrimonial property dispute providing for the transfer of the matrimonial home from both parties to one or the other spouse);

The Bar Association has considered the application of the s 5 activities with care and has obtained, and had peer-reviewed, advice on the point. As a result, its position is that, of the listed activities in the definition, only those set out below are of potential relevance to a barrister and, of them, only the first seems particularly likely to have any application to a barrister.

(b) becoming otherwise engaged in any legal work associated with effecting or

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documenting any transaction involving real While at first blush this sounds to be a broad category, the Act defines “transaction” to mean property; or “any deposit, withdrawal, exchange or transfer of (c) giving instructions on behalf of a client to funds…”. Accordingly, the activities described in another person for a real estate these subparagraphs will only catch the activities transaction or to undertake any of the of a barrister where, in the ordinary course of activities in paragraphs (a) or (b) above, business, they engage personally in any actual would be likely to amount to the conduct deposit, withdrawal, exchange or transfer of of a designated non-financial business or funds or, alternatively, give instructions on behalf profession by the barrister and be caught of a client to another person to deposit, withdraw, by the Act as a result. exchange or transfer funds in connection with one of the activities in paragraph (a) or (b) above. Transfers of beneficial interests in land or Typically, it would be unusual for a barrister in the other real property ordinary course of their practice to be engaging Subparagraph (a)(vi)(C) of the definition would personally in the deposit, withdrawal, exchange capture a barrister who, in the ordinary course or transfer of funds and so, for this reason, a of their business, engages in the transfer of barrister is unlikely to fall within the scope of the beneficial interests in land for other real property activities described in these sub paragraphs. or gives instructions on behalf of a client to any other person to do so. If a barrister were, in the ordinary course of business, to give instructions to another person This subparagraph, unlike subparagraph (A), does on behalf of a client for the deposit, withdrawal, not capture a barrister engaging in “conveyancing” exchange or transfer of funds in connection in connection with the transfer of the beneficial with one of the activities in paragraph (a) or (b) interest in land or other real property. Consequently, above, that will likely amount to the conduct of a it is unlikely to bring a barrister within the scope designated non-financial business or profession of the Act when he or she is simply involved in the by the barrister and be caught by the Act. documentation of, or review or negotiation of the documentation for, the transfer of the beneficial Other activities interest in land for other real property. The definition of a designated non-financial business or profession also captures certain Under the Lawyers and Conveyancers Act other activities which are not generally undertaken (Lawyers: Conduct and Client Care) Rules 2008 (the by barristers. However, if a barrister were, in the “Client Care Rules”) a barrister may not hold valuable ordinary course of their business, to undertake property on behalf of others. Consequently, it seems one of these activities, that would also amount highly unlikely a barrister will, in the ordinary course to the conduct of a designated non-financial of their business, hold, or engage in the transfer business or profession by the barrister and be of, a beneficial interest in land or real property. If, caught by the Act. The relevant activities are: however, a barrister were, in the ordinary course of their practice, to give instructions on behalf of a (a) acting as a formation agent of companies client to any other person to transfer a beneficial or other legal persons or of a trust, interest in land or real property, that would likely partnership, charitable entity or any other bring the barrister within the scope of the Act. prescribed arrangement;

(b) acting, or arranging for a person to act as, a nominee director or nominee shareholder or trustee in relation to any company or other legal person or in relation to a trust, partnership, charitable entity or other prescribed arrangement;

Other “transactions” Subparagraphs (D) and (E) of the definition will bring within the AML regime any barrister who engages in (or gives instructions on behalf of a client to another person for) a “transaction” either: (a) on behalf of any person in connection with the sale, purchase or transfer of a business, a company or other legal person or trust, partnership or charitable entity; or (b) on behalf of a client in connection with the creation, operation or management of any company or other legal person or trust, partnership or charitable entity.

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(c) providing a registered office or a business address, a correspondence address, or an administrative address for a company or a partnership or for any other legal person, trust, partnership or other prescribed arrangement, unless the office or address is provided solely as an ancillary service to the provision of other services (that do not otherwise give rise to a designated non financial business or profession).

Under the Client Care Rules a barrister may not receive or hold money or other valuable property for or on behalf of any other person. If, contrary to this prohibition in the Client Care Rules, a barrister were, in the ordinary course of their business, to manage client funds (other than sums paid as fees for professional services), accounts, securities or other assets, that would also be caught by the Act. The net effect For these reasons, in the event that, in the ordinary course of a barrister’s business, he or she advises on, documents or is otherwise involved in documenting a transaction involving real property or undertakes any other activity which constitutes a designated non-financial business or profession, then the Act is likely to apply to that work or activity. As a consequence, the barrister will, in relation to that work or activity, have to meet the Act’s compliance obligations which, at a high level, will require the barrister to:

documents and templates it has created should, if a barrister become subject to the Act, be used.1 Alternatively, a barrister might choose, as a consequence of the potential application of the Act in the ways described, to take steps to ensure that activities of the sort that might fall within the scope of the Act are not undertaken by them in the ordinary course of business. The barrister might, for example, ensure their instructing solicitor, or another solicitor, looks after those aspects of their work that might otherwise see them having involvement in advising on, documenting or effecting a transaction involving real property or otherwise undertaking a designated non-financial business or profession. An exemption has been sought The Bar Association is applying to the Minister of Justice under s 157 of the Act for an exemption from the requirements of the Act in circumstances in which a barrister acts on direct instructions from:

(a) conduct a written assessment of the risk of money laundering and financing of terrorism that he or she may reasonably expect to face in the course of his or her practice (s 58);

(a) an instructing solicitor; or (b) the Crown.

If the exemption is granted, then the Act will only apply to a barrister if he or she was acting on (b) keep that risk assessment up-to-date (s 59); direct instructions under rule 14.5 of the Client Care Rules on work which, in the ordinary course (c) create a written AML/CFT programme of business, would see them being involved based on the risk assessment (ss 56(1) and in advising on, documenting or effecting a 57); transaction involving real property. (d) appoint an AML/CFT compliance officer to maintain the AML/CFT programme (s 56(2) and (3)); (e) prepare and provide to his or her AML/CFT supervisor (the Department of Internal Affairs or another supervisor prescribed for the purpose (s 130)) an annual report on the risk assessment and AML/CFT programme (s 60); (f) have the risk assessment and AML/CFT programme audited by an external auditor at least every two years (s 59(2)); (g) undertake customer due diligence and verification obligations (Subpart 1, Part 2); (h) maintain prescribed records (ss 49 – 52); (i) make suspicious activity reports (s 40) and comply with Prescribed Transaction Reporting obligations (subpart 2A, Part 2). The Law Society’s guidance on AML/CFT compliance and the specimen compliance

The exemption process, which will result in the creation of a legislative instrument, will take several months to be completed and the Bar Association will advise members of its progress during that time. Members will be notified when the exemption application, which describes more fully the application of the Act to barristers, is available on the NZBA website. If any activities of a barrister fall within the scope of the Act then, until such time as any exemption is obtained, he or she will need to comply fully with the requirements of the Act. Both NZLS and ADLS are providing detailed training on the requirements for compliance with the Act. If members have any questions about or comments on the content of this article or the exemption, they are asked in the first instance to email them to the NZBA Executive Director, at melissa.perkin@nzbar.org.nz. * The NZBA Council would like to express its appreciation to Paul Radich and Derek Johnston for their work on the AML/CFT issues.

http://www.lawsociety.org.nz/news-and-communications/news/law-society-gives-guidance-on-amlcft-compliance-documents

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Leave to Withdraw as Counsel: Lessons From the Decision in Burgess v Monk Honor Ford*

meeting, and put it down to a misunderstanding (at [10]). The defendants opposed the application principally because they did not wish to see the trial aborted.

Should counsel be able to withdraw when a client indicates they may sue them for negligence, but the client nevertheless maintains they want to be represented by counsel? How do such allegations impact on counsel’s obligation to act without any conflict of interest? Is the relationship of trust and confidence mutual, meaning that counsel must be able to have a degree of trust and confidence in his or her client in order to act? These questions were recently grappled with in Heath J’s decision in Burgess v Monk (No. 4) [2017] NZHC 2618.

Such a situation did not appear to have been addressed before in case law, nor do the Conduct and Client Care Rules (“Rules”) or commentary to those Rules offer any clear guidance. As Heath J held, in the absence of any authority, “a first principles analysis” was required (at [11]).

Burgess v Monk involved a claim against executors of two estates, solicitors to the estates and a purchaser of estate assets for inter alia breach of constructive trust, knowing assistance and receipt, conversion and breach of contract. All claims were unsuccessful. The trial lasted 32 sitting days in the Hamilton High Court. The author is second counsel for the first and second defendants. Nineteen sitting days into the trial, near the end of the plaintiffs’ case, counsel for the plaintiffs sought leave to withdraw. As Heath J (the trial judge) described, the circumstances were “unusual” (at [1]). Counsels’ position was that during a meeting, the plaintiff made allegations that created “a factual foundation for a claim in negligence” against counsel, implicitly threatened such a claim and would not deny at that meeting that such a claim might be pursued (at [7]-[8]). Counsel considered this gave rise to a potential conflict of interest and amounted to a complete breakdown in the relationship of trust and confidence. Accordingly, both counsel sought leave to withdraw. The client, along with all defendants, opposed the application. The client’s position was that he retained trust and confidence in his counsel and wished to proceed with the trial. He denied any such allegations were made during the

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The Court’s findings The starting point is that the High Court relies on its inherent jurisdiction to determine whether counsel should be granted leave to withdraw, or conversely to restrain counsel from acting. In exercising its inherent jurisdiction, the Court will be guided by the Lawyers and Conveyancers Act 2006 (“Act”) and the Rules. Section 4 of the Act sets out a lawyer’s core obligations (at [59]). Under the Rules, a lawyer has a duty to complete a retainer (r 4.2), unless good cause exists to terminate it. Rule 4.2.1 provides a non-exhaustive list of what amounts to good cause. Here, his Honour held that “the Court is dealing with one of its officers who owes duties to the Court to complete a retainer, unless good grounds exist to allow counsel to withdraw, or render it necessary for counsel to be removed” (at [20]). His Honour considered r 4.2.1, but none of the circumstances listed as giving rise to “good cause” to terminate a retainer applied here (at [50]). His Honour did not refer to the fact that given r 4.2.1 is not exhaustive, the Rules clearly envisage that good cause to terminate a retainer may arise outside of the circumstances listed in that subrule. Rule 5.1 provides that “the relationship between lawyer and client is one of confidence and trust that must never be abused.” His Honour Justice Heath declined to interpret that rule as requiring mutual trust and confidence for the duration of the retainer (at [48]): the Rules are focused on protecting the interests of clients, not lawyers. It is therefore not necessary for a lawyer to have trust and confidence in their client, nor could the loss

of such trust and confidence in the client justify counsel’s withdrawal. That finding will be difficult for some to swallow, but it is consistent with fiduciary law. As the Supreme Court held in Fay v Chirnside [2007] 3 NZLR 433, at [80]: “[A]ll fiduciary relationships, whether inherent or particular, are marked by the entitlement … of one party to place trust and confidence in the other. That party is entitled to rely on the other party not to act in a way which is contrary to the first party’s interests.” His Honour’s finding is also consistent with the view of commentators that a client’s only real duties are to “give the lawyer instructions so they can work, to pay the lawyer’s fees and to be truthful in instructing their solicitor” (Professional Responsibility in New Zealand, LexisNexis, online ed, at [250,105]). Those requirements are reflected in what amounts to good cause to withdraw under r 4.2.1. There is no requirement of a client to otherwise ensure their lawyer maintains trust and confidence in them. As to a conflict of interest – the more interesting point – senior counsel representing the applicants (the plaintiffs’ counsel) argued it was no longer possible for them to act in an objective manner given the threats that had been made, notwithstanding the client wished them to continue. His Honour determined no such conflict arose, principally because the client resiled from any claim that may have been threatened and wanted them to continue to act; he retained confidence in them (at [58]). Moreover, a threat alone was not sufficient: “[i]t is not enough to say that because of a threat of legal proceedings they cannot be independent” (at [61]). Counsel must be made of stauncher stuff than that (at [57]): “In my view, whatever their misgivings may be and whether they have good or bad reasons for holding those views, they have a professional obligation to continue to act for their clients. Having reflected on the issues raised on the present application, I have concluded that the interests of justice will not be served by finding a ready route by which counsel may seek to extricate themselves from what they perceive to be a difficult client and an unwieldly case. The statutory obligations case on all lawyers reflect that approach. As Sir Thomas Bingham MR said: they must ‘soldier’ on.” (footnotes omitted)

While the Act and Rules provide guidance by analogy, and his Honour held they did not support the application, ultimately, he concluded the matter was to be determined with reference to “broad administration of justice concerns” (at [49]), taking into account: - Counsel’s position; - the effect on the client if counsel withdrew; - the fact the trial would be aborted after 19 days, with a subsequent delay and waste of costs for the defendants; - the interests of the public in the finality of litigation; - the need for justice to be seen to be done. The fact the application was made during trial, strongly counted against leave to withdraw being granted. If the application was granted, and the trial aborted, the effect on the defendants (and client) would be “devastating” (at [62]). That was particularly so given the trial had been aborted on one previous occasion. Accordingly, and logically, the interests of other parties will be given less weight if leave to withdraw is sought at a time when it does not risk a fixture date, or prejudice other parties. Issues of privilege Inevitably, client-solicitor privilege will complicate the presentation and determination of such an application. Counsel will be required to provide some evidential foundation for their application, without breaching privilege. The difficulties this gives rise to are clear, particularly in circumstances such as occurred in this case where there is essentially a dispute as to what was said, and privilege was only partially waived. In the author’s view, it is somewhat problematic for a client to assert counsel is mistaken (or has no reason to perceive a conflict) yet refuse to waive privilege to determine that issue. This places counsel, and the Court, in a difficult position. In this case, Heath J declined to resolve the factual conflict of what happened at counsels’ meeting with the client (at [45]-[47]). Instead, he proceeded on the basis that counsel had a genuine belief the client intended to bring proceedings against them. However, that had to be balanced against the fact the client had now retracted this suggestion. Procedural guidance for counsel While the High Court Rules at r 5.41 set out a

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procedure by which a solicitor on the record may apply for leave to withdraw, no similar procedure exists in respect of counsel. The present case offers guidance in this regard.

direction as to the scope of counsel’s authority as follows: [28] In my view, counsel is permitted to use his or her judgment in determining how best, as an advocate, to present the client’s case, on the basis of the instructions given. In many cases that will entail making decisions about the number of witnesses to be called and the nature and extent of cross-examination. An advocate will not be criticised if he or she were to follow instructions, yet present the case in a succinct and persuasive way. It is difficult to conceive of a case in which a Court would find counsel negligent if instructions were followed but the discretion as to presentation exercised in the manner I have indicated.

Here, counsel filed an interlocutory application relying on the court’s inherent jurisdiction and a memorandum in support of that application. No affidavit was filed. Counsel engaged independent senior counsel to represent them at the hearing. The Court also took steps to ensure the client received independent advice and was represented by senior counsel at the hearing. The defendants, as affected parties, were given the opportunity to address the application. Even though the application was declined, his Honour made no costs award. He was not critical of counsel for making the application: indeed he determined it was appropriate for them to have done so. Observations as to counsel’s role Finally, his Honour surveyed various relevant domestic and overseas authorities concerning the nature of counsel’s role, and in obiter provided

In doing so, his Honour likely sought to provide both guidance and a level of comfort to counsel representing difficult clients in complex proceedings. * Honor Ford is a member of Shortland Chambers, Auckland. She acts in both civil and regulatory/serious fraud proceedings.

New Members Ms Stephanie Grieve

CHRISTCHURCH Ms Noor Hamid

CHRISTCHURCH

Professor Tony Angelo QC

WELLINGTON Mr James Gurnick

Mr Callum Reid

WELLINGTON Mr Michael Greenop

AUCKLAND

Mr James Burns

WELLINGTON Mr Jordan Grimmer

AUCKLAND

Mr Marc Corlett QC

AUCKLAND Mrs Shenaaz Khan

AUCKLAND

Mr Navid Sedaghati

SYDNEY Mr Lance Green

AUCKLAND

Mr Julian Dawson

WHANGAREI Mr Richard Smith

HAMILTON

INVERCARGILL

Ms Sharron Wooler

MATAMATA Ms Megan Cucerzan

AUCKLAND

Mr Mark Beech

TAURANGA Mr James Donkin

AUCKLAND

Ms Anjori Mitra

AUCKLAND Ms Victoria Heine

WELLINGTON

Mr Christopher Johnstone

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CHRISTCHURCH

Appointing Amicus Curiae and Standby Counsel in Criminal Trials Tiho Mijatov*

In December 2017, the Court of Appeal issued judgment in Fahey v R [2017] NZCA 596. It relates to one aspect of developing criminal trial practice that has caused much debate among those at the bar: the propriety of appointing amicus curiae for self-represented defendants. This is an increasingly common practice by courts. The tasks to be performed by amicus appointed in these circumstances have been many and varied – from providing neutral submissions on points of law in the traditional “amicus” role, to preparing a theory of the case for the defendant, cross-examining witnesses and presenting closing addresses (either alongside or instead of the unrepresented defendant). The Court reviewed the practice, surveyed overseas jurisdictions, and assessed the competing rights at stake, before concluding that appointment of so-called “amicus” is problematic. In its place, the Court confirmed that trial judges have the power to appoint “standby counsel”, who may more properly perform the tasks of an advocate. The Court’s principal conclusions were (at [105]): (a) Trial courts possess an implied discretionary power to appoint standby counsel for a self- represented defendant where necessary to ensure a fair trial. (b) The roles of amicus curiae and standby counsel must be distinguished. Amicus is appointed to assist the court itself, usually on questions of law, when it appears the parties may not do so. Standby counsel is appointed to assist a self represented defendant to the extent he or she is willing to accept help. (c) Standby counsel appointments should be exceptional. A defendant’s decision to self represent must be respected and in ordinary cases a fair trial should be possible without standby counsel. (d) The role of standby counsel is necessarily flexible and case-dependent, and it may evolve during the trial. (e) Standby counsel takes instructions from the defendant. The duties owed to the court do not differ in principle from those owed by defence counsel, except in regard to gaining approval for costs and expenses. (f) The power to appoint standby counsel extends to cases in which the defendant dismisses his or her own counsel to secure an adjournment or is thought likely to cause disruption by

dismissing counsel at trial. (g) Rarely if ever should a defendant’s former counsel be appointed amicus. (h) Former counsel should not normally be appointed standby counsel either. If withdrawal or dismissal as defence counsel disrupts the court’s business, the court may inquire about the reasons for withdrawal, without requiring disclosure of privileged information. If counsel cites ethical reasons the court should not inquire further. Former counsel should not be appointed in a standby role if the court accepts that counsel’s relationship with the defendant has broken down. The NZBA’s involvement allowed the views and experience of those at the bar to inform the NZBA’s case on appeal. We thank members who shared at the outset their views and information about relevant court decisions, statistics, anecdotal information and trial practice. Prior to the hearing the NZBA prepared a summary of issues and skeletal argument. The other interveners largely agreed with our suggested approach and analysis of the interests at stake – including the interaction between the right to self-represent, to choose counsel, and to a fair trial. As a result of this early collaborative work among the interveners, at the hearing of the appeal, counsel for the NZBA (Jonathan Eaton QC, assisted by the author) represented both the NZBA and the New Zealand Law Society. The NZBA’s involvement informed the Court about amicus appointments in practice. We supplemented incomplete official data about number of appointments, with our members’ collective experience of trial practice. We also provided concrete examples from case law where defendants had chosen to self-represent but where this decision had demonstrably threatened their ability to have a fair trial. We also explained why there was confusion and conflict where former counsel is appointed as amicus. The decision in Fahey should be welcomed and is likely to live up to its promise as a judgment “to guide trial judges in the exercise of their discretion to appoint counsel … to assist the self-represented defendant”. * Tiho Mijatov practises as a barrister at Stout Street Chambers, Wellington, with a focus on public law litigation and with wide experience including in criminal appeals. Tiho is a member of the NZBA Council.

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2018 NZBA Mentoring Programme Lisa Mills*

In 2018, the New Zealand Bar Association is expanding its mentoring programme. Research from the UK on lawyer well-being found that lawyers who were mentored were much more resilient than those who were not.1 The NZBA has had a mentoring programme in place for almost 10 years but it has had limited uptake and with the development of the NZBA’s Strategic Plan, the Council has prioritised the update and expansion of the mentoring programme as one of its key objectives. With that in mind we have updated the mentoring information on our website and recently hosted an event to relaunch of the NZBA’s Mentoring Programme. This event, which was held at Bankside Chambers in Auckland, was well attended by both current and potential mentors and mentees. We hope to host a similar event in Wellington in due course. Members were given the opportunity to hear from Kate Davenport QC and her mentee, Alison Todd. Alison outlined the benefits that both she and Kate had gained from their relationship. She also pointed out that “...it is very useful to find a mentor outside your organisation as you get a better perspective on what you are doing, and it reminds you that there is a wider world of law out there.” We encourage you to consider signing up and taking part in the programme. If you would like to look more closely at the programme, the first thing you need to do is to visit the mentoring

section of the NZBA website. View the Mentoring Programme Guidelines and the Background to Mentoring documents. These documents provide full information about how a mentoring relationship should work, what is involved from both parties’ perspectives and what both parties may be able to achieve out of a mentoring relationship. Things to consider Mentors Before signing up, ensure you are interested and enthusiastic about becoming a mentor. All of our members have a wealth of knowledge but not everyone is available to take on the additional role of mentor. As a mentor you will need to be supportive and encourage the professional development of your mentee. You will not be expected to solve your mentee’s problems, but rather provide helpful advice and guidance to support your mentee to discover solutions to the problems themselves. The mentor is someone who can be a helpful “sounding board” for the mentee. Mentees A mentee must be a member of the NZBA and enthusiastic about the programme and development of their career progression. The mentee will be responsible for arranging the first meeting with their matched mentor and communicating to the mentor what they hope to achieve from the relationship. The Background to Mentoring document provides useful information relating to all aspects of the mentoring relationship. How to sign up Mentors Click on the link Fill in the Mentor Application form at www.nzbar.org.nz >member resources>mentoring programme, complete the form and submit. The Mentoring Committee will approve the mentoring application at its discretion. Once approved the mentor’s name will be added to the list on the NZBA website and linked back to

Promoting well-being in your chambers or organisation https://www.wellbeingatthebar.org.uk/policy-and-practice/ (accessed 17/3/18)

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the “Find a Barrister” listing (recommended – and we can assist with setting this up!) or if that listing is not available, the mentor’s own website profile.

these are not immediately obvious and we would therefore recommend that you take the time to look at this material.

The list of mentors can only be viewed by NZBA members. However, if you do not want to be placed on this list but are still willing to act as a mentor, please let us know and we will ensure that your name is not included on the website list.

What happens if it does not work for me? The mentoring relationship may be concluded at any stage on a “no blame” basis. If a mentee or mentor wishes to withdraw from the mentoring relationship, they may do so by communicating their withdrawal to other party in writing. If for any reason this poses problems, they can notify the NZBA in writing and request the Association to notify conclusion of the relationship. They are not required to provide a reason. If a mentor wishes to be removed from the list of available mentors they should contact the NZBA in writing. Their name will be removed from the list.

If a mentee requests you as a mentor, or the Executive Director believes that you would be a good match with a particular mentee, you will be contacted and will have the opportunity to consider whether you would like us to set up the contact for you. You will also have a chance to meet informally with the proposed mentee, so that you can both decide if you feel that you are a good match. You are welcome to discuss any matters at any time with the Executive Director. Mentees Mentees are asked to submit up to three names for possible mentors. Although there is a list of potential mentors on our website, if there is someone you would like as a mentor who is not listed, please let us know. Provided they are a member, we are happy to approach them on your behalf to see if they are available to mentor you.3

*Lisa Mills is the NZBA Administrator and Events Coordinator. If you have any questions about how to sign up for the mentoring programme or use the website please contact her at nzbar@nzbar.org.nz

Once you have decided who you would like to have as a mentor, fill in the Mentee Application Form and submit it. Your chosen mentors will be contacted (in the order you chose them) and asked if they are available. If they are available, the NZBA Executive Director will provide you with your mentor’s contact details. It will then be up to you as the mentee to start the conversation. Initially we suggest a meeting to establish if you are a good fit as mentor and mentee. After that it will be up to you both to meet as regularly as you decide is required/necessary. You can determine how much formality or structure your relationship should have, but we note that recent research has suggested that a certain amount of structure is better for a successful mentoring relationship. We have included some guidance in the background information and some forms that will help you work through the issues you need to discuss with your mentor/mentee. Some of

www.nzbar.org.nz/resources/list-of-mentors

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A Performance Approach to Advocacy by Chan Shoker*

This article first appeared in Counsel Magazine (December 2017) and is reproduced with the permission of the author.

pressure, in a living, breathing, unpredictable courtroom. Barristers may eventually acquire similar skills but too often by trial and error.

What can the art of performance offer the barrister? By performance I don't mean theatricality or shouting in the evenings, guilty as I am of both. I refer, instead, to the action or process that governs behaviour. How might the actions or processes of an actor benefit the barrister?

Having trained and worked both on the stage and at the Bar, I believe that any barrister, in particular the pupil, would benefit from performance-based training. Barristers who understand performance can bring a powerful psycho-emotional dimension to their work. Performance offers them a deeper understanding of the components of their moment-tomoment subjective experience under pressure, of the actions they take. It brings that experience under their control. Above all, it shields the barrister from the perils of trial and error.

I recall a creeping sense of unease during my advocacy training. I was taught well, I left with all the right grades, secured pupillage and spent half a dozen years in practice without completely humiliating myself. And yet, I carried with me the feeling of something missing, of unexplored territory and potential beyond the questions I was asking, of a world outside of my control; the vague notion that my mind and body were reacting under pressure in ways that I didn't fully comprehend. Many years later, having left the Bar to train as an actor, the source of this unease became apparent. What I had experienced back then were the outer limits of traditional advocacy training, whereby barristers are taught what to do but rarely how to do it. This 'how' applies to any and every meaningful action in court; to the living of a life under the pressure. It is in this context, I believe, that the art of performance assumes relevance. Traditional training seldom incorporated performance, but the need for this aspect to be addressed is being acknowledged, and workshops are increasingly available on voice, presence and presentational skills, some of which are led by professional actors. Barristers may have learnt how to prep and present a case according to the basic principles of advocacy, but not necessarily how to bring that presentation to life, through designed, intentional action in the context of a deeper human narrative. Performance skills can help the barrister truly exploit those advocacy techniques under

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There are plenty of skills, tricks and techniques that could assist. By way of example, I explore four key areas. It is my belief that the injection of performance techniques in to these areas would create a virtuous cycle for the newcomer - each feeding and reinforcing the others to create a tight loop of certainty and control under pressure. Speech Actors are taught a method of strategic speech whereby words, phrases, sentences are loaded up with psychological intent. Its purpose: to bring specificity, accuracy and dramatic power to dialogue. Speech is used to create measurable, internal reactions in the listener. Words are 'aimed' and 'fired' like the bullets of a sniper. In this way, actors are compelled to avoid waste, affectation or generality. Their words carry purpose far beyond linguistic meaning. This method requires no collusion from amenable cast members - the actor employs the same to elicit specific responses in an audience. For the barrister, placing all speech within a framework of psychological intent offers more impact, subtlety, control and tactical precision in cross-examination, submissions, closing speeches etc. From moment-to-moment, incrementally, barristers can affect and even control the internal

state of the listener. He or she becomes an agent of specificity; not just in the words used but, in the psycho-emotional messaging with which they motor those words. Basic advocacy techniques are brought to life - the barrister has a tool for how. An additional benefit to the newcomer is the sidestepping of self-consciousness; this technique places all attention on the recipient and their reactions. Listening â&#x20AC;&#x201C; an act of excavation From speech to listening. There are several performance techniques that could offer barristers a distinct advantage when listening. Actors learn to listen with eyes and ears, throwing all their attention on to the speaker without trying to listen (trying to listen often merges what was said with an imperceptible inner monologue of our own making). They will learn to hold a thought in their mind without it distorting what they hear. They will focus on the choice of words, on their nature, on the images behind them which may reveal the deeper, internal, emotional landscape of the speaker. They will note the full weight and value given to specific words. They will sense and internalise the tempo of speech, any dissonance or congruence in delivery, the breath, where the speech sits in the body. They will understand the power of mirroring speech patterns. Listening becomes an act of excavation.

Through focus on vocal agility and flexibility, the barrister moves closer to finding his or her most relaxed, 'free' voice. A freer voice means more vitality, more colours to the presentation, a voice more likely to surprise, break pattern and rhythm and therefore hold the attention. It can mean a more personal voice, a rougher voice even; a voice more likely to connect psychologically and emotionally. The voice itself becomes a flexible tool. Centring the body Actors will train to bring their bodies under control, to centre it, strengthen it, isolate its joints and muscles so it becomes alive to them. Through doing just some of this work, the barrister, powerfully connected to his or her own physicality, becomes more alive to others. They iron away kinks caused by nerves, insecurity, anxiety, kinks that may stifle the breath, and so the thinking, when it is needed most.

In this way the barrister is brought entirely in to the moment, not just in court, but also in negotiation or conference. Because truly engaged listening not only improves intuition, but effectively creates a world or mind between people, the barrister becomes more deeply attuned to the hopes, needs, fears and intentions of his client, an opponent, or witness. Barristers can sense more closely the attitude of the judge or jury. They reveal to themselves more possibilities, more ways to win, more insight. In this way, they can begin to unlock a deeper human dimension within the work, a deeper connection to every aspect of their environment. The listening itself becomes strategic. In my experience an additional benefit accrues: the more profound the listening, the more incisive the speech. Voice â&#x20AC;&#x201C; more powerful, clear and controlled The most immediate benefit would be a more powerful, clear and controlled vocal instrument that holds under stress. A stronger voice tends to bring more confidence. We are more believable when our voice carries authentic

weight and resonance. Our narrative, personal and case, gains power. The more settled breath pattern of a strong voice steadies the flow of blood to the brain, maintaining clear and relaxed thinking under pressure.

Barristers in control of their body are in control of their presence, of the messages, conscious and subconscious, that they send to others. They can orient themselves to a judge, witness, opponent or client for specific impact. They can maximise their presence when facing down a difficult witness or opponent, de-emphasise their power with a vulnerable client. They create a body which is relaxed and responsive, reserving energy that would otherwise be lost through muscular tension. They can bring more power and force to their advocacy through a deeper synchronicity of movement and speech. The similarity in the subjective experience of the barrister and actor is so striking, it is inconceivable to me that the former cannot learn from the latter. The importance of performance lies not just in the difference between mere information and persuasion, between generalisation and specificity, looking bad or looking good, but also in the difference between a kind of professional purgatory and certainty, of unconscious trial and error and conscious mastery. In my opinion, it is fundamental. * Chan Shoker spent six years at Cornwall Street Chambers before retraining as an actor. For more information see: www.chanshoker.com/

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Photo credit: Bernard Spragg - https://preview.tinyurl.com/y93c9asg, CC0, https://commons.wikimedia.org/w/index.php?curid=61216702

Old But Venerable by Jacqui Thompson*

2018 began with looking backwards into the history of two courts and viewing the future of courts, in the form of a justice precinct. Special sittings were held to mark the reopening of the Dunedin High Court, the opening of the Christchurch Justice Precinct, and the 150th anniversary of the Auckland High Court. The reopening of the Dunedin High Court on 26 January 2018 was marked by procession of the judiciary and the profession from the town hall, followed by the special sitting and a ball to celebrate the restoration. The courthouse was designed in 1901 – 02 by John Campbell who was the government architect. This was the first of his major works. In 2011, following the Canterbury earthquakes, the building was assessed as being high-risk even in the event of a moderate earthquake. There was considerable uncertainty about its future, but in 2015 Cabinet approved a $20 million budget to save the building. The work including upgrading the technology and strengthening the building to 60 to 70% of the new building standards. Although the Otago District Law Society had been campaigning for a new court building in the 1880's and 1890's, it was less than pleased when the location of the building was finally announced.

It was to be erected in Lower Stuart Street, near the railway station. The Society pointed to the "incessant whistling, accompanied by the shunting of trucks".2 Nonetheless the building went ahead on that site and was officially opened on 23 June 1902, when 62 members of the profession formed a procession (led by Alf Hanlon KC) through the streets to the new building. The building has borne witness to crucial periods in New Zealand’s legal history and has seen many of its most famous figures pass through it. One of its earliest judges was Joshua Strange Williams, about whom it has been said that “no New Zealand judge has ever quite achieved the same position of affection within the profession or the community at large.”1 Williams J was originally a conveyancer in England. Notwithstanding his very limited 1 2

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Cullen, M. J. Lawfully Occupied. (Otago District Law Society, 1979), p66. Ibid, p42

experience as a barrister, in March 1875 he was appointed to the Supreme Court of New Zealand. Over the years, he gained the respect of the bar for his wisdom, courtesy and helpfulness to practitioners, including leading young lawyers through cases and suggesting questions to be asked. One of the most famous and colourful figures to appear before the court was barrister Alf Hanlon KC. His background differed from the majority of the profession who were drawn from the English/ Scottish middle classes. He was the son of an Irish policeman, who despised class distinctions and was an adamant atheist.3 While it was said that “there is little doubt that a murderer wishing to escape the supreme penalty was better advised to hire Hanlon than anyone else”, he was unable to save one of his most famous clients, Minnie Dean.4 An appearance in court by Hanlon would lead to the court overflowing with both members of the profession and the public. This could be explained, perhaps, by his love of performance which was in turn fed by his love of Shakespeare.5

Otago Bar and Dunedin High Court

Mr Elliott observed that Dunedin continues to be served by an active and accomplished Bar, upholding the very best traditions of the independent bar. They have the privilege of practicing in a court so steeped in rich history and tradition.7 Auckland Auckland could be said to be the birthplace of the Supreme Court, as the High Court was then known. Prior to 1842, New Zealand fell under the jurisdiction of the New South Wales Courts. In January 1842, William Martin (later Sir William) took the oath of office as this first Supreme Court judge and the first Chief Justice. Martin CJ had been called to the bar in England. When he was appointed to the New Zealand Supreme Court he was 34 years old and had no court experience.8

Other trials in more modern times have equally attracted crowds and comment in the media. As noted by NZBA President, Clive Elliott QC, in his address to the Court at the re-opening special sitting6, magistrate Donald Rennie was tried in Dunedin in 1972 for perjury. He was convicted and sentenced to six months' imprisonment. More recently, deposition hearings were held for the Bouwer and Weatherston murder cases.7

The Supreme Court first sat in a Kauri timber building, located in the commercial sector of colonial Auckland in February 1842. The current court building replaced the earlier timber building in 1868. It was given a more prominent position on the hill near the former Government House. Built as a two-storey brick and stone building, at that time it was said to be the first public building erected in durable materials in Auckland.

Perhaps the most famous recent case is the first Bain murder trial. Arguably, New Zealanders learnt more about legal bodies and the appellate process from this trial than any other. The public followed the trial and then on to the Court of Appeal, a petition to the Crown, referral back to the Court of Appeal and then to the Privy Council, which found there had been a miscarriage of justice and ordered a retrial (this was held in Christchurch). Otago claims the first woman admitted to the bar in New Zealand. Ethel Rebecca Benjamin was also the first woman admitted to law school at the University of Otago. This university was the first in Australasia to allow women to acquire a degree in law.

The architect was British born Edward Rumsey, who had trained under Gilbert Scott. The design of the building was in keeping with the frequent use of Gothic revival in judicial buildings in the later colonial period and included a crenellated central tower and pointed arch arcading. This is in strong contrast to some of the more classically designed buildings nearby.

Hall, Geoffrey, “Alf Hanlon” – Te Ara - The Online Encyclopedia of New Zealand. https://teara.govt.nz/en/biographies/2h11/hanlon-alfred-charles (accessed 19/03/2018) 4 Cullen, Op. Cit, p45 . Minnie Dean’s trial was heard in Invercargill. 5 It is said that Hanlon’s address to the jury in the Dean trial was so impassioned that the judge adjourned the day before summing up to allow the jury to have time for calm consideration. See n3. 6 https://www.nzbar.org.nz/news/address-president-new-zealand-bar-association-reopening-dunedin-court-26-january-2018 (accessed 17/03/2018) 7 Ibid 8 Spiller, Peter A New Zealand Legal History (2nd ed, Brookers Ltd,Wellington, 2001) p204. 3

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The carvings on the exterior façades are by Anton Teutenberg and are depictions of British royalty, local dignitaries and Maori leaders such as the Ngapuhi chief, Hone Heke who had died in 1850. The Gothic revival style is continued in the interior of the building, and these preserved interiors are examples of the fashions for decor in 19th-century craft techniques. There were from an early stage some criticisms of the working conditions inside the building.9 The roof in the number one courtroom was known to let in “torrents” of rain and the ceiling shape created bad acoustic problems. Allegedly there were fleas in the courtroom and the earth closets created a smell. The courthouse underwent at least two extensive renovations, the first in 1935 -1936 and a second, more extensive $40 million refit in 1988. As remarked by Clive Elliott QC in his address at the sitting for the 150th year anniversary, while the leaks, fleas and odours may have been overcome, the bad acoustics have successfully resisted all remedial efforts.10 The courthouse has featured many significant trials, including the earliest trial in New Zealand that involved fingerprint evidence, a well-known celebrity trial involving dancer and entertainer, Freda Stark, and the 1986 sentencing of the French agents involved in the infamous sinking of the Rainbow Warrior in 1985. Each of these hearings placed great demands on the court. The latter two hearings, in particular, attracted a great deal of publicity, with crowds queueing on the street to get into the public gallery and the media demand outpacing the available accommodation. Some cases introduced technological advances that changed the court's operations. In the case of the Rainbow Warrior, the security imposed was at a level that had never previously been seen in New Zealand courts. Because of the demand for seats at the hearing, screens were used to project the proceedings into the number two courtroom. Things have changed somewhat from this early use of monitors. Today, increasingly, the public can see court proceedings on the evening news.

The Auckland Bar has seen significant progress for women in the legal profession. The second woman in New Zealand to be admitted to the bar was Eliza Ellen Melville (known as Ellen). Unlike Ethel Benjamin, she remained in the law in New Zealand for many years. She was the first woman City Councillor in New Zealand, serving for 33 years on the Auckland City Council following her election in 1913. She was also a leading figure in the National Council of Women of New Zealand. She continued her fight for women’s rights throughout her professional career as a lawyer. The Auckland High Court has seen significant advances for women in the judiciary. Dame Silvia Cartwright, the first woman appointed to the High Court Bench, sat in Auckland.11 The Auckland Bar now proudly claims among its former members the first woman Chief Justice (Dame Sian Elias), the first Māori woman to become a judge of the High Court (Justice Lowell Goddard; she also shares the honour of being the first Māori woman Queen’s Counsel with Her Honour Justice Elias)12 and the first woman to hold the position of Chief High Court Judge (Justice Helen Winkelmann). The High Court is not a building, and it is more than a symbol. It is an institution that underpins our legal system and our constitution. Those who work in the courts and the registry and provide external support through the Ministry of Justice and Department for Courts are as critical to the workings of this institution as those who appear before it. It is trite to say that without them, nothing would happen. Mr Elliott noted on behalf of the Bar that their commitment, professionalism and courtesy are greatly appreciated by the profession.

Another significant case was the Equiticorp case, which ran for a year. Apart from absorbing enormous judicial and court resources, the case cemented the use of computers in the courtroom to aid with the volume of documentation. Restoration and Refitting of Auckland High Court [1991] NZLJ 186 at 187 Elliott, C “Auckland High Court 150th Anniversary Sitting” https://www.nzbar.org.nz/news/auckland-high-court-150th-anniversary-sitting-address-clive-elliott-qc (accessed 10/03/2018) 11 The first woman appointed to the judiciary was Dame Augusta Wallace who was appointed to the District Court. 12 Judge S Te A Milroy, “Māori women judges in Aotearoa” March 2016, https://maorilandcourt.govt.nz/assets/Documents/Publications/MLC-2016-Mar-JudgesCorner-Milroy-J.pdf 9

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The Cutting-Edge Courthouse by Jacqui Thompson

The Christchurch earthquakes in 2010 and 2011 destroyed more than just buildings. It claimed lives and forever changed the traditions of that city. But the rebuild has been a testament to the resilience of Christchurch and its people. That resilience is also demonstrated by the response to the loss of its old High Court and the acceptance of a new, cutting-edge Justice Precinct. The $300 million precinct brings together all justice and emergency services into a purposebuilt environment in central Christchurch. It is made up of three buildings; the Justice building, the emergency services building and a car park for operational vehicles, all grouped around a central courtyard. In what may appear to be a case of putting all one’s eggs in one basket, it houses the: • Ministry of Justice; • New Zealand Police; • Department of Corrections; • St John New Zealand; • Ministry of Civil Defence and Emergency Management; • Canterbury Civil Defence and Emergency Management Group;

•

Christchurch City Council – Civil Defence and Emergency Management.

The Ministry of Justice's website, after listing all of these agencies, goes on to say that the “… judiciary will also be housed in the Precinct, in a way that recognises and ensures its constitutional independence.”1 In his address at the ceremonial sitting to mark the opening of the Court, NZBA Vice-President Jonathan Eaton QC remarked on the need for this separation: “ … [I] sense a degree of discomfort that the “justice precinct” label fails to recognise the separation of powers prescribed by the Constitution Act. A court quite independent of the legislature and of the executive. To refer to this building as a court house rather than a part of a precinct can only enhance the prospect that the public appreciate that this courthouse stands strong and independent.” Mr Eaton QC commented that justice had been administered from the old High Court location for nearly 150 years2. He said that that courtroom had had an inspiring and unique history with many fondly remembered judges and advocates. He noted that all would feel “a very strong sense of

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pride in our profession with its rich history and tradition”. The move from a building that recognised the traditions and history of the administration of justice and the judiciary, has not been without some angst. There were complaints over the loss of the old court’s judicial canopy and eight portraits of Christchurch justices, which did not go to the new precinct because they did not “…fit with the Ministry of Justice design aesthetics.”3 However, those who have visited the ultra modern and high tech Queen Elizabeth II Courts of Law in Brisbane may have seen the portrait gallery that blends old with new effectively. Perhaps this is an issue that could be revisited as the Department for Courts finds its place in this precinct.

unintended consequence of eroding fundamental rights. The new court, he said, would not carry the same physical, tangible reminders and reflections of history. There were concerns that the increase and improvement of AVL facilities encouraged remote appearances and that the jury box was split 8:4. The new courthouse is acknowledged to be light and airy, with excellent facilities and an upgrade in terms of security. It increases public access for the people of Canterbury. But in the end, as noted by the Chief Justice, in her address on the 150th anniversary of the Auckland High Court, a court is not a building. Recognising this distinction, Mr Eaton said: “An awareness and appreciation of tradition and history can promote and encourage high standards, adherence to our overriding obligations, our commitment to the rule of law and respect for legal process, for legal history. This is an important occasion for justice in Canterbury but it is not a fresh start or a clean slate. This is very much a continuum of a proud past, albeit in these most impressive surrounds. Which only serves to remind us of the importance of our role as counsel to ensure we maintain the highest standards.”

Mr Eaton noted that there had been some apprehension about the development of a justice precinct and whether there would be any

https://www.justice.govt.nz/about/about-us/our-strategy/christchurch-justice-and-emergency-services-precinct/ (accessed 11/03/2018) Eaton J. NZBA Address at the ceremonial sitting of the opening of the no.1 High Court in Christchurch, 31 January 2018 (https://www.nzbar.org.nz/news/nzbaaddress-ceremonial-sitting-opening-no1-high-court-christchurch-31-january-2018, accessed 11/03/2018) 3 Christchurch Justice Precinct 'blandly anonymous': QC Nigel Hampton, Christchurch Press 15 November 2017 (https://www.stuff.co.nz/the-press/ news/98926720/christchurch-justice-precinct-blandly-anonymous-qc-nigel-hampton, accessed 11/03/2018) 1 2

The End of Retirement as We Have Known It by Geoff Pearman*

“The 20th century gave us the gift of longevity – but for what? The longevity revolution forces us to abandon existing notions of old age and retirement. These old social constructs are quite simply unsustainable in the face of an additional 30 years of life.” - Alexander Kalache, President International Longevity Centre.

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We are living longer and healthier lives. The old life maps that guided our parents are no longer relevant. The boomers are doing what they have always done – challenging the norms and charting a new direction. In a series of four articles I will explore the implications of this change. In this first article I want to set the scene, proposing that we are already seeing the end of retirement as it has typically been portrayed and dreamed about. In fact I am going to go as far to suggest that retirement is an outmoded concept that needs to be retired. I can already hear the protests from those in their 30-40’s who are dreaming of the time when they will no longer need to work.

The combination of lower birth rates following on from the boomer bulge, and increased life expectancy is going to see a significant increase in the number of older people. The number of people aged 65 plus is expected to grow by 77% from 700,000 in 2016 to 1.24m in 2031. But will this simply mean more retirees?

follows night. Childhood followed by adolescence and then adulthood. The later was then broken up into middle age and old age. Influential British historian, Peter Laslett, in the 1980’s talked about the emergence of a “third age”. He described this as a new stage between the end of mid-career and parenting duties and the beginning of dependant old age. Laslett wasn't the first to try and divide up our lives into stages. Shakespeare back in 16th century Britain talked about the seven ages of man in his play As You Like It. As early as around 600 BC an Athenian statesman, Solon, divided life into 10 periods of 7 years each.

Increasing numbers of people aged 65 and over are already staying on at work longer. Currently in New Zealand a quarter of people aged 65 and over are still in some form of paid employment (30% of men 18% of women). Of those aged 65-69 forty-four per cent are in paid work. It is expected that number of people still in work will grow to around 300,000 by 2031 up from 166,000 in 2016. They are doing life differently.

The latest incarnation of linear thinking has come from the Commission for Financial Capability. They have further divided the “third age” into a Discovery phase (65-74) followed by Endeavour (7584) and then the Reflection stage (85+). All of this suggests we are programmed to follow predetermined paths throughout life.

We have been socialised into a linear view of life, twenty years of education and training, 40 years of work and family and then the golden years. The challenge we now face is that the 10-15 years we dreamed of post work has now become potentially 30 years. If we subscribe to this linear approach to life it does suggest that in fact many more people will be retiring (even if a little later than previous) and living out their lives as retirees for longer. This has given rise to recent headlines in Australia arguing that their superannuation system is not designed for the ageing population. The rationale being that when the system was conceived it was designed to financially support the period 55 to 75, after all that was the average life expectancy. People are now typically living into their late 80’s, more than nine years longer than they did in the 1990s. We have also been taught to think of life as a series of sequential stages that follow just as day

Life is more complicated than simply adding up the number of birthdays we have had and then conforming to a set of expectations passed down about what we should do at different ages and stages. In fact, chronological age is now recognised as the least reliable measure. American gerontologist and writer, Ken Dytchwald, argues that rather than seeing life as a series of linear and sequential stages roughly approximating the 20,40 10+ model we will increasingly be mixing it up. Why have education just at the front end and defer leisure until we retire? Margaret Mead once whimsically said “It is utterly false and cruelly arbitrary to put all the play into childhood, all the work into middle age, and all the regrets into old age.” Why not a gap year in your 40’s, why not a degree in your 50’s or 70’s, why not retraining for an encore career in your 50’s or going into business for the first time in your 60’s?

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Many more people are needing to stay on for financial reasons. New Zealand is one of the few countries to have universal access to a state funded age pension and while it is designed to meet the basic needs of recipients, many find that they need to supplement their income through paid work. The recent Government commissioned report on housing showed that the number of people receiving both New Zealand Superannuation and an Accommodation Supplement payment is growing by 2,000 per year. The authors concluded there is a growing risk that we will see more and more older people living in housing-related poverty.

For many people retirement is no longer the dreamed of destination. Takapuna based HT Group undertook significant research last year examining the lifestyle needs of a group of New Zealanders aged 55-70. They conducted indepth interviews with more than 60 adults and compared their attitudes and behaviour with that of other age groups in an online survey of 1,363 people. They found a number of cross-cutting themes and identified five orientations. The dream for most was not retirement but rather freedom. As Clare Hall Taylor found: “This age group has a strong disconnect between interior vitality and physiological ageing. They simply do not feel ‘old’ and, for many, the concept of retirement was unattractive. They are particularly repelled by age-related advertising, so organisations need to be particularly sensitive about the way they communicate with this age group.”

We are also seeing a number staying on at work because they dare not think about an alternative. They may not be enamoured by the work they do, but work is what they have always done, their identify is defined by their job and to not be in work is not something to be contemplated. Many will tell you stories of people who died soon after retiring and that is not something they want to bring on. What is surprising when you talk with people in their fifties is the low level of planning being undertaken. Our estimate is that only around ten per cent of people over 50 have a thought through life stage plan, maybe a few more have a financial plan. In spite of the injunction to at least have a financial plan, people drift. After all if you have not been a planner during your life thus far, why would you suddenly become one in your 50’s or 60’s?

New Zealand now has the second highest workforce participation rate of people aged over 55 in the OECD. This is often regarded as being positive as people in work contribute to the economy, pay taxes and have higher levels of disposable income. The Ministry of Social Development has projected that the paid work earnings of the 65 plus population will grow from $4.8b in 2016 to over $13.6b by 2041. People are staying on in paid work through choice because they are healthy, they enjoy what they do, gain personal satisfaction and often say that they still have something to contribute and achieve. They may want greater flexibility, which could be reducing their days or hours of work to factor in other interests or taking longer vacations.

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With increasing numbers of people wanting to stay on in work, what is it they are looking for and what makes work satisfying? The research is consistent. The first thing many older workers are looking for in their work is flexibility and a sense of having some control over their work arrangements. While this may not be possible in all jobs, a degree of choice is important. This may mean the ability to vary start and finish times, to take additional leave, to work shorter weeks and maybe to cut down on the daily commute and work from home if this is feasible. The second thing many want from work is to be recognised for their ongoing contribution and to be valued for their knowledge and skill.

They are not over the hill and do not want to be marginalised or ignored. This ongoing contribution could be made through a changed role where they shed some of their responsibilities and give back through mentoring. Equally it could mean having access to ongoing professional development to remain relevant.

HT Group’s research study found 5 ‘Life Orientations’ – people who differed in their attitudes to work, leisure and finance. Each group had its own distinct view of what ‘freedom’ meant and how they viewed their current life stage.

The third thing that many people value is the social aspect. If where they work is a great place to work with good relationships, they will stay on. They want to be respected, have fun and continue to develop and maintain friendships. This is where it is important as you think about a life beyond work to have a transition plan in place and to be developing alternative social networks and interests.

Prosperous Enterprisers

- often business owners, they were driven, savvy individuals who achieved a work-life balance that they were satisfied with.

The curious thing about these three factors is that they are also present in the top ten for most employees irrespective of age. In the case of mature aged workers what happens is that factors such as career progression and money become less important, while giving back, making a difference and leaving a legacy become much more important.

Purpose Seekers

- had a strong desire to maintain a purpose in life. They were determined to try and work as long as they could. Meaningful work was associated with positive wellbeing.

American researcher Gail Sheehy in her book Understanding Mens’ Passages observed that the word “retire” has become synonymous with words such as discard, dismiss, resign, retreat, seclude oneself, be unsociable, go to bed. She, like many others went on to suggest we should retire the word “retire” and replace it with a word that is much more active. She suggests, “redirect”. A time in your life when you want to redirect your energies, talents and time.

Retirement Embracers

– mainly paid employees, they were counting down to retirement or celebrating the fact that they had now retired. Retirement was associated with positive wellbeing.

The reality is that more and more people are choosing the age at which they move to the next stage in their lives or alter the nature of their working life. The point at which we exit paid work will increasingly have little to do with the age of entitlement to an age pension. For a growing number, the intention is to never retire in the traditional sense. They cannot imagine not working in some way, even if it is doing something different or organised to give greater flexibility. Award winning economics journalist Chris Farrell summarises the trend that many of us are shaping – the end of retirement as we have known it:

Reluctant Sloggers

– felt financially behind and believed that they needed to keep on working for the foreseeable future. A group we believe is growing in size.

Seasoned Survivors

- often long-term beneficiaries they had experienced a tough childhood or had suffered trauma when they were young. They have had a consistently hard life which had left them vulnerable.

“We are at the early stages of a long, difficult transition toward a different vision of the elder years, less a model of disengagement from work and neighbourhood to one of continuing engagement in work and community.” * Geoff Pearman is a consultant, trainer, speaker and author who specialises in the field of age and work. For more information see: www. partnersinchange.co.nz/ about/

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Residential Property As An Investment. Does the House Always Win? by Laetitia Peterson*

During the course of writing my book, “Legal Tender,” in which I talk about New Zealand lawyers and their attitudes towards money and wealth creation, I asked 61 legal professionals, “What are your main strategies to create wealth?”.

Statistics New Zealand shows home ownership trending down, with just under half of all people living in a house they own or partly own, with a decline in home ownership seen across the board from people in their 20s to 70s, with the largest falls for those in their 30s and 40s. This was echoed in our interviews with younger lawyers experiencing major challenges in getting into the property market. They are not on low incomes by any stretch of the imagination, compared to others at the same life stage.

Buying a family home was the most popular strategy, with 77 per cent acknowledging it as their main plan to build wealth. This comes as no surprise. We know lawyers are predominantly Family Stewards (wanting what’s best for those closest to them) and, of course, a top priority is to buy a home for their loved ones. For many New Zealanders (not just lawyers), this is the main (if not only) financial asset. Most lawyers, young and old, started to build their wealth this way. For older lawyers, the family home was used as a springboard to leverage into other forms of property investment (residential and commercial).

Buying a home is not a one-stop shop. The next Kiwi dream is to renovate. Ongoing capital expenditure loomed large in homeownership discussions. Capital expenditure and renovations had the potential for a “significant financial impact” on lawyers facing future financial challenges.

Buying a family home today is more challenging than ever, especially in Auckland where house price growth has far outstripped income growth. One lawyer in his early 30s and the father of a young child shared his story about the challenge of upgrading his family home. He had already made the first step on the property ladder but needed to make the next step to a bigger house on a larger section for his growing family. He was disillusioned with the property buying process with its increasingly unattainable auction prices, but refused to give up the Kiwi dream of providing his family with a lovely home and garden. While on a clear path to partnership, this successful lawyer was struggling with what seemed so easy for the generation above him. How could this be? He was spending most of his time at work and yet this wasn’t enough. He had to look further out of Auckland, which, due to increasing traffic, wasn’t appealing, but what was the alternative?

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As mentioned, the family home is often the largest financial asset. As such, it is often unavoidable for lawyers to have the majority of their wealth (especially in the early stages) invested in a highly concentrated component. Think of a home worth more than a million dollars tied up in a single asset, a single asset class (property) and a single (and very small) country. If your investments are exclsively in your house, all your wealth is concentrated in the residential property market. Given the importance of property for wealth creation in New Zealand, it is worth getting a handle on what sort of returns we can expect from property as an investment over the longterm? To find this out, we first look back to Europe 350 years ago. In Amsterdam, just on the outskirts of the medieval city, lies a canal. On the edge of that canal sits Herengracht, one of the most prestigious neighbourhoods in the city, built in the 1600s at the start of the golden age of Holland. Over time it has housed wealthy financiers, slave traders, diamond cutters and the like. It has always been considered

States were virtually unchanged on an inflation adjusted basis.

a premium area, in one of Europe’s most prosperous cities. Dr Piet Eichholtz, a professor at Holland’s Maastricht University, had a novel idea. As the Dutch are such meticulous record keepers, he thought he should be able to construct a time series going back 350 years which showed the change in the value of housing, adjusted for inflation, using the neighbourhood of Herengracht as the basis.

Year on year, this is almost impossible to guess. As we know, property can experience periods of rapid price increases and, at other times, extended periods of flat or subdued growth. However, long-run estimates of growth rates can be observed from historical data. For instance, the Shiller Home Price Index provides long-term US house price data going back to 1927. We can see that, since the 1920s, US home prices have increased by 3.9 per cent per annum on average. That compares to US inflation, which increased at 3 per cent per annum over the same period.

We’ve all heard the refrain, adopted as fact, that property is a great investment. With that in mind, what do you think the 350 year investment return on housing in Herengracht has been? Over the complete 350 year period, housing in Herengracht has achieved a total return of (drum roll please) 250 per cent! However, that’s a mere 0.2 per cent real return per annum. In an interview with the New York Times Dr Eichholtz said, "There is a myth which says that real estate values go up significantly over time, and that this is especially true for central city locations. When I began to study the Herengracht, I didn't know what I would find, but the data ended up challenging that myth." Perhaps this is simply a Dutch problem. Maybe in other, newer economies, we would find a different result. Actually, no. Dr Robert Shiller won the Nobel Prize in Economic Sciences in 2013, in part for his work on a long run housing index for the United States going back to 1890. Apparently, Americans aren’t as meticulous record keepers as the Dutch so he couldn’t go back further. However, that still provides us with 125 years of data. What did Shiller find? In the 100 years from 1890 to 1990, property prices in the United

Although there have been a few small deviations over the full 90-year period, the long-term relationship between house prices and inflation has been remarkably stable. That includes the decade of the 1970s, when US inflation was high and house prices increased at an accelerated rate. The strength of this relationship is intuitive because, over the very long-term, we expect the price of a residential property (particularly a residential investment property) to be driven primarily by the long-term growth in rents, which in turn is related to increases in wealth and income, and thus, inflation. In fact, a key observation from the Gordon Growth Model (a method for calculating the intrinsic value of an asset exclusive of current market conditions) is that, in the long-run, the growth in asset prices (capital gains) must be equal to the growth in yield (rental income). Therefore, rather than looking at growth in property prices, you could equally look at the growth in rental income.

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Let us look at a central Auckland example, using the index Trade Me Property publishes showing the annual change in rental prices. While in the month of June 2017 rental prices were up 3.9 per cent on a year earlier, the average annualised increase over the previous 12 months was closer to 3 per cent. While this is above the current New Zealand inflation rate of around 2 per cent, it’s not significantly different, which makes a lot of sense.

to justify the higher current property values. Unfortunately, the history of rental price movements is that they are relatively stable. Therefore, it has to be considered extremely unlikely for a market mechanism that historically exhibits considerable stability to suddenly move by a substantial amount in any direction.

In the long-run, if rents consistently increased by much more than inflation, they would consume an ever-increasing proportion of a tenant’s income. That wouldn’t be sustainable. In fact, the reason that rents have increased over the rate of inflation reflects massive new investment in property, providing better, roomier, warmer and safer rentals. Ultimately, this new investment comes at a cost to the investor. So, let us assume the long-term growth in rents is 1 per cent above inflation. Since the Reserve Bank of New Zealand has a policy target of maintaining inflation in the range of 1 – 3 per cent on average, we can reasonably expect long-term inflation in New Zealand of approximately 2 per cent per annum. Therefore, let us assume that rents in New Zealand increase on average by 3 per cent per annum. In other words, an investor on-selling a property to a new investor (in a rising property market) is simply selling their property at a lower expected return than they purchased it for. If you extrapolate that trend out, you realise this can’t go on forever. Eventually, there’s going to be an investor offered such a low expected return that they simply refuse to purchase the property. At that point, the price must fall until the rental yield returns to an attractive level. The only alternative is that the rental yields themselves would need to increase substantially

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Although property is less volatile than shares, it is not, as you might think, as “safe as houses”. Taken properly into account, several hidden costs and hassles could significantly reduce your effective return. Apart from the lack of diversification and hidden costs lowering the effective return, property investments are also illiquid assets with high transaction (entry and exit) costs. And, if your property is funded with a loan, an increase in interest rates will increase your repayments and, in the case of a rental property, decrease your net rental income (most lawyers were well aware of the effect of the rising OCR on floating mortgage rates in our financial literacy survey questions). Coming back to property as a lifestyle asset, I believe that creating a comfortable home environment is essential to creating a happy family life, but we need to be careful not to fall into the trap of keeping up with the Joneses as property is an asset class may not deliver the best returns. I have often wondered why New Zealanders are so obsessed with moving and accumulating rental properties when there are so many other opportunities to create wealth through a globally diversified investment portfolio. * Laetitia Peterson is a personal wealth adviser and is married to competition barrister, Andrew Peterson. She has worked with companies such as Goldman Sachs and boutique funds management firm Liontamer, which she co-founded with Janine Starks. She is now the CEO and founder of The Private Office, helping successful lawyers achieve the financial goals important to them and their families.

Digital Marketing by Lynn de Winnaar*

Like everything since the advent of the digital age, PR as an art has moved from its traditional form into a pastiche of tradition, technology and innovation. Think back to how our parents consumed news. They relied on traditional media like radio, newspapers and television, none of which provided coverage 24/7. At the time, public relations practitioners were pitted against each other behind the scenes, competing for the favour of journalists and editors in trying to secure editorial coverage for clients. The lunch trade was booming and golf courses buzzing in the name of relationship building. If someone was unhappy with service they received, or a product wasn’t performing as expected, they complained to a friend. Social media has buried the contentious adage “there’s no such thing as bad publicity” once and for all, because we have seen the digital era give a guy in his lounge the power to fold a business. Fast forward to present day where the big media players are still considered the cream of the crop but Google has opened up the world to anyone who has something of value to say. There is an opportunity for everyone with access to a computer to become known for their opinion, intellect, advice. Modern day PR is the ability to shape a message for the audience you are targeting so that it accomplishes your marketing goals. For example, if your goal is to become a thought leader in a particular area of law, work on contributing content – to industry publishers, on your own blog, on social media, to your clients, even to mass media newsrooms (if you are in the enviable position to provide unique and interesting information of public interest). Contributing to industry publishers is likely to convert to the quickest results.

There are an array of hard copy and digital legal publications to consider when thinking about approaching them to publish your content. Some are actively looking for contributors: for example the New Zealand Law Journal welcomes exclusive articles that comply with submission guidelines. Legal publishers love receiving new book proposals. If you have an idea, take the time to submit a framework and if it is accepted as viable, you start the process of writing the book, working with an editor. Being a published author may not be the most lucrative accolade, but it can take you a long way in building or entrenching your reputation as a subject matter expert. Given the nature of legal work and the public interest that often accompanies it, barristers are better placed than most other professions to be able to work with mainstream news media to distribute their content and build their profile. This could be in the form of articles written targeting the general public’s interest, or opinion pieces around proposed legislation, synopses on court proceedings - the list goes on. Paramount to success in using this strategy though is forging relationships with journalists and editors. Choose the publications you would like to contribute to, understand their audience profile, compile some ideas around articles and set up to meet with them to discuss how you could offer value. The days of well-staffed newsrooms and investigative journalism teams are over. Quality and unique content is coveted and you’d likely to get a positive outcome. Many professionals wonder about the value in running a blog. It is a great way to establish yourself as a thought leader, as all your content is easily accessible online, and you can build your library of work over time. There are a few techniques you can apply to help it rank better in Google search results. Think about the query your target audience might type into the Google search bar if they were trying to source an article exactly like the one you intend to write. Make a list of the variations and incorporate these keywords into your copy. The Google algorithm applies synonyms, so there is no need to call the same thing ten names to cover all bases. The Google keyword tool is a

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on the most). This data will give you a good indication if the effort is worth the cut through, and which ‘type’ of content is of most interest to your audience. If you are still using Microsoft Outlook to send out newsletters, try Mailchimp’s email marketing platform, which has drag and drop design functionality, and the ability to manage your customer lists and run those insightful analytics reports. There is a free version to try.

free resource that uses analytics to recommend keywords and is well worth learning to use (YouTube has many tutorials). Technical tactics should also be applied to maximise high search results. Incorporate a strong keyword into the URL when you name it; add ‘share’ functionality to blog articles so that readers can share off the page; consider adding a comments section. Lastly, the code behind your blog can be enhanced with keywords to increase the relevancy of your webpage in Google's ‘eyes’. Incorporate keywords into title tags, header tags and metatags, and use alt text. If this all sounds like jargon, ask your website administrator to do the research and set it up for you. If you would like to use your blog for lead generation too, ask visitors to submit their details in a form to download content. If the form includes an optional checkbox to subscribe to updates, this will help you to build your newsletter database. Newsletters can be time consuming to compile and one might wonder if it is worth the effort. The answer lies in the analytics. Considering that average business to business email open rates are around 30%, with a lower click through rate to links within the newsletter, what you initially may consider a worthwhile audience could shrink substantially. Email analytics will tell exact numbers on bounce rate (delivery failure), open rate, click through rate, unsubscribes, and even provide a heatmap (to see which parts of your email were clicked

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If a content driven strategy so far sounds way too time consuming, remember that content is not limited to the written word. Webinars, vlogs, vodcasts, podcasts, TV and radio interviews, and speaking spots at events can all be homed on your blog and social channels. Other types of content include case studies, photos, eBooks, slide shares, testimonials, templates, whitepapers, infographics and press releases, even tweets and social posts – many things that you will create as a matter of course in your day, but which can provide fantastic promotion for you if made freely available for consumption and sharing. In the modern world, content marketing leads as the best strategy to achieve marketing goals. Compile a media contact list to proactively submit content or put a little spend behind a social media campaign and watch the momentum build. Once upon a time media was in control of the news. Now you have direct access to your target audience. Experiment with content type, volume and format and you will figure out what delivers reach and engagement. No longer does ‘going viral’ send people scattering - it is the greatest accolade. If you are a little behind the times, what is stopping you from creating your first piece of shared content? * Lynn de Winnaar is a Marketing Consultant who has previously worked in publishing including as the Segment and Solutions Marketing Manager at LexisNexis New Zealand. She can be contacted at lynndewinnaar@gmail.com. For more information see https://www.linkedin.com/in/lynn-de-winnaarba421267/

Dragon Discover how speech recognition can help your firm focus on billable work, while ultimately providing better service to your clients The document process can impact client demands for efficiency & accountability. Dragon personal speech recognition solutions, can increase productivity & positively impact the transcription process. Put your voice to work and improve practice productivity. Enjoy legal-specific accuracy. Built with a specialised legal vocabulary to deliver optimal recognition accuracy when you dictate legal terms.

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Boost efﬁciency with customizations. Add custom words speciﬁc to your practice and shortcut repetitive tasks by voice.

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Use your favourite applications. Dictate, edit and control within your desktop applications by voice.

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For a limited time Sound Business Systems are offering NZ Bar Association members 15% off the standard purchase price of Dragon Legal. Simply call 09 300 3030 or 0800 DICTATE (0800 342 828) to speak to one of their team. 36

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Dragon Naturally Speaking – a Review by Jacqui Thompson*

The NZBA has negotiated a 15% discount on the price of Nuance’s DragonDictate Naturally Speaking for users of the legal version. The New Zealand supplier, Sound Business Systems Ltd, allowed the NZBA to trial the program for the purposes of reviewing it for At the Bar. What is DragonDictate? if you are unfamiliar with it, DragonDictate is a speech recognition system. Nuance claims that it delivers up to 99% speech recognition accuracy. Compared to earlier versions, very little training in the use of the product is required. Dragon establishes a profile of your voice when the program is set up. It learns your intonation and distinguishing characteristics and gets a feel for your accent and the peculiarities of your speech. The more you use it, the more it learns about you and improves your profile and in turn its accuracy. If you use words that don’t appear in its vocabulary, you can add these and train Dragon to recognise them.

make your emails streamlined, including inserting signatures, attachments and sending on command. You can also add commands that tell it to send an email to a specific person such as “send email to Fred Dagg.” review your existing documents and emails so that it can learn more about how you write; learn new vocabulary; create custom commands to perform common actions.

What about other speech recognition programs? Some of you may have used the Apple speech recognition program or the Windows versions. Google Docs also has a reasonable speech recognition program. However, DragonDictate Legal takes this to the next level. Its vocabulary includes a range of legal commands and phrases that mean that you do not have to do worry about the technical language not being recognised. It contains the names of New Zealand legislation, and allows you to dictate sections and subsections with ease. Of course, there are some differences between using Dragon for PC and using Dragon for Mac and we recommend that if you are Mac user, you discuss these with the supplier before going ahead.

If you have used it in the past, as in some years ago, forget what you knew of Dragon. There is very little comparison with the earlier versions. The latest version of this product is powerful, effective and very satisfying to use. If you are used to dictating documents, you are able to see your results instantly without waiting for someone else to type them. If you type your material yourself, you will experience a considerable rise in productivity because no matter how quickly you think you type, Dragon can do better. What does DragonDictate do? DragonDictate is integrated with Windows and Microsoft Office. Some of the things that Dragon can do are: • open your programs and apps. Simply ask it to (for example) open Microsoft Excel and it will promptly launch the program.

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• • • •

What do you get for your licence fee? Your licence entitles you to load the program on four different PCs. This should be more than enough for most practitioners! It is not available for iPad or Android. There is however a plug-in that you can use which allows you to dictate material on your (for example) iPad and then send it to your PC so that you can later use Dragon to edit it. You are also entitled to 2 hours of free training in the use of the product. This is usually broken up into an initial one-hour session, which gets you started on using the product and understanding its toolbar, followed by another hour of training going through more advanced features. This training can be delivered online anywhere in New Zealand. How easy is it to use? The hardest part about using DragonDictate is remembering to actually use it. If you are a heavy keyboard user, your instinct is immediately

around, particularly if you have a high degree of customisation set up in your programs. These are usually solved very easily.

to start typing rather than to start dictating. You have to train yourself to start your day by launching the program and putting your headset on. The very first email that you send should be one that you have dictated, rather than typed.

Dragon doesn’t cope very well with Māori words, which is very frustrating. You may need to train Dragon on some words more than once. For example, it insisted on inserting Martina for Morena, despite extensive training. Consistent use and training provides part of the answer here.

Another issue, which can have its amusing side (depending on what is said), is that if you take a phone call without muting your headset or telling Dragon to go to sleep, you can find your conversation recorded in a very one-sided way in the middle of your document. One soon learns to pause Dragon before answering the phone! What do you need to watch out for? In a way, Dragon’s ease-of-use is its biggest downside. It is only too easy to leap into dictating material, without thinking of the structure of what you are writing. If you don’t already do so, you may find it useful to go back to your high school days of drafting essays and begin with a quickly sketched outline of what it is that you want to include in your document and in what order. Secondly like all new computer programs, you need to learn how to use it to its fullest extent. It is relatively easy to set up and get going with it, but the more you learn about it, the more you can use it effectively. The temptation is to stay with the basics and not go any further, but Dragon can do much more than the basics. Finally, there is absolutely no substitute for proofreading documents. DragonDictate does its job so well that sometimes you feel as if it has perfectly recorded what you have said. In fact, you don’t really need to watch the screen while you dictate and may find yourself staring out of the window or focusing on the ceiling as you think about what you are saying. However, depending on the clarity of your pronunciation, sometimes Dragon will mix up words with unexpected consequences. For example, in an email the words “NZBA Treasurer” became “NZBA Treasure”. Most awkward. What does it not do well? Formatting is not Dragon’s forte. Although there are some formatting commands, numbers or bulleted lists can be difficult, as can indents. However, you can improve this by building a set of commands to do what you want. You also must be flexible between the applications. For the most part DragonDictate works very well within the Microsoft Office suite. However, every now and then there are issues that you need to think your way

What specs do you need on your PC? The requirements are: • Hard Disk Space: 8GB • Operating System: Windows 7, 8.1, 10 (32- and 64-bit); Windows Server 2008 R2 & 2012 R2 • Recommended CPU: Intel dual core or equivalent AMD processor. Faster processors yield faster performance. • Recommended Ram: Minimum 4GB The reality is that if your present computer does not meet these requirements, you may not enjoy Dragon Legal, and may find that many new programs slow down your machine’s performance anyway. It may be time to think about an upgrade. Overall view It can’t be stressed enough that this is a product that you need to consistently use and keep learning about. For example, there are a variety of editing commands that can be used, so don't fall into old habits and grab your mouse. You need to overcome this mindset and try to make most of the product. Having said that, you have to work in a way that suits your thought processes. When I am proofreading the document, I like to run my mouse along the line and do the corrections partly using the keyboard and partly using Dragon. It depends on whether they are small typo corrections or major rewrites. After trialling Dragon at a particularly busy time, the thought of giving up on using it was highly distressing. It enabled me to cope with a greatly increased workload without having to work too many extra hours. It did require persistence, but it is now an essential tool in my work day. While I could cope without it, because I’m a very fast typist, I don’t want to cope without it. An email to the NZBA Treasure (oops – Treasurer and Newsletter Editor) solved that issue. It has immeasurably improved my working day.

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To the Ends of the Earth – Naturally by Martin Cahnbley, Planet Wine*

The NZBA is pleased to announce a new member benefit offer through Planet Wine. Planet Wine will offer a 20% discount on all purchases made via its website. It’s founder and CEO, Martin Cahnbley, travels the world in search of the wines that make an impact on us and are different from the usual fare. Martin has agreed to write about his travels and discoveries for At the Bar. In this issue he is in Georgia and Armenia. The ‘natural’ wine movement and its emergence and fashionability have piqued my interest for some time now. The fact that this term has no specific definition or certification within the wine industry is a topic for a long discussion over many glasses of wine.

Sydney, one of the most acclaimed (and biodynamic) wineries from Western Australia was asked what gave them the right to be at that festival. How much more natural can a winery be than bio-dynamic? But, let us step back 8000 years. This is when Georgia (Eastern Europe) started producing wine, naturally. An invitation from a school friend to join him in his hunt for his father’s ancestral home in the Ukraine had me poring over online maps of the Black Sea and beyond. Any excuse and my tendrils are out, feeling for wine connections in Georgia and Armenia. In August 2017 I landed in Yerevan, the capital of Armenia. Despite a midnight arrival, the suited driver of the Ararat Cognac Factory guided me to the large black Mercedes and my AirBnB accommodation. After a short meeting with the family on the following day, we drove to the ‘Factory’. Number 2 son driving, father (no English) in the passenger seat and number 1 son, Grigor, next to me in the rear, pushing for

I have been working in the wine industry for over 30 years and am somewhat cynical about the many stillfermenting ‘Pet-Nat’ wines, fancy labels, high prices and often unimpressive liquids concocted by bearded hipstertypes wearing too-tight trousers with too-tight jackets. At the recent Rootstock Natural Wine Festival in

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sales already, in excellent English. The father had been the manager of the factory when the USSR fell in 1991 and took over ownership at that time. No questions asked (by me).

over the past 5 plus years, secure in the proof that Georgia has been producing wine continuously for the past 8000 years, longer than any other country.

While the facilities, with views of Mount Ararat in Turkey, were certainly out-dated, their very valuable assets are the multitude of barrels of liquid they have in stock. Armenian ‘Cognac’ is highly regarded around the world and especially in Russia. The tasting was held in a large woodpaneled room with high ceilings and naïve paintings of the owner leading worker brothers to shore. ‘Rustic’ would be a good descriptor, as were the chocolates that were offered.

I undertook my trip from Yerevan to Tbilisi in a marshrutka, a small bus certified to carry 12-16 passengers. Tbilisi is a hilly capital much more focused on tourism than Yerevan. Every fourth store is a wine store or a wine bar or restaurant. Wine is the engine of this country. After a night of walking about and ingesting a large steak with some local red wine, I tumbled into my AirBnB bed.

The various spirits and wines (including pomegranate and blackcurrant) were interesting. “How would these be received in the New Zealand market?” is the question I keep asking myself when searching for extensions to the Planet Wine portfolio. As the sun set, with Mt. Ararat in the distance, with the gift of a bottle of 50-year old Ararat Cognac in my hand, I resolved to import some of their products – good products, and sincere and good people. That evening, back in the capital Yerevan, I went in search of a wine bar called Wine Republic. An Armenian winery, Zorah, had suggested that I taste their wines there. Yerevan was founded in the 8th century BC and became the capital of Armenia in 1918. Structures are mainly European 18th and 19th century in style but the 21st century is making its mark with modern buildings, shops, bars and restaurants that would not be out of place in New York or Florence. Wine Republic turned out to be a Thai restaurant with an excellent wine bar and cellar. Its young staff were friendly and competent in English and led me through an interesting array of Armenian wines, which used indigenous and ‘Georgian’ grape varieties: areni noir, saperavi, kisi etc Armenia’s wine industry has been overshadowed by its northern neighbour, Georgia. While similar varieties and processes are used, the Georgian industry has taken the opportunity to promote itself extensively and consistently

In the morning I was picked up by my translator, Salomé, who had only recently started working for the Georgian wine marketing body, and a driver. This was the beginning of a 4.5 day, 22 winery whirlwind tour of Georgian wineries. On day one we visited two Monasteries that produce wine. I was introduced to the Qvevri, the traditional Georgian fermentation and storage vessel. Essentially, these are clay amphora, lined with bee’s wax, which are buried in the ground. In residential areas, where Europeans would have cellars, Georgians may have 4-6 Qvevri buried in the ground in the basement of their homes. This saves space and also aids in controlling the temperature of the wine. Day one ended with visits to the residential wineries of three brothers, each trying to outdo the other. I remember much food, many toasts and some singing, but no dancing. Very friendly and hospitable people, the Georgians! The rest of the days in Georgia were a blur of wineries, Qvevri and vineyards. Wineries ranged from small to foreign-owned and to large corporates. Most of the wineries work with autochthonous varieties like mtsvane, rkatsiteli, saperavi, kisi, chinuri and 500 plus others. Most of those that we visited ferment and age their wines in Qvevri but we also encountered a few larger wineries that have invested in modern winemaking equipment like stainless steel tanks and oak barrels.

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This brings us full circle. Georgian wines are, to a large extent, made in a natural, minimalinterventionist manner. That means using natural yeasts (occurring in the vineyard), not using chemical sprays in the vineyard and not adding SO2 to the wines. The proof of the pudding is in the eating. While proponents of the ‘natural wine’ movement may blindly jump at the chance of tasting Georgian wines and expounding its virtues, I am interested in a broader assessment from wine connoisseurs who have honed their senses on more traditionally-made wines. My experience in Georgia proved to me that many vintners producing ‘natural’ wines in the New World still have a lot to learn before their ‘natural’ wines meet my standards. On the other hand, I have had occasion to meet ‘natural’ winemakers around the world whose wines I really enjoyed. I am already representing the Testalonga wines from South Africa and am currently in discussions with Dave Geyer in the Barossa Valley and a Spanish ‘natural’ wine producer.

Vintners around the world are usually driven by a dream, by a passion. The winemakers I like to work with are these, the ones who love what they do and who will give up much to achieve that dream. An example of this is the winery Pheasant’s Tears, named after a Georgian fable in which only the best wines will make a Pheasant cry. The story of its winemaker, John Wurdeman, is worth telling. He grew up with hippy parents in California, studied art/painting, and then decided to study painting further in Moscow. John visited Georgia in 1996, where he met his wife, Gela, who was from a winemaking family. They married and John stayed.

If you would like more information, have comments and/or suggestions, please feel free to get in touch with me at martinc@planetwine. co.nz. I look forward to being part of an active wine community at the bar. * For more information about Planet Wine, refer to www.planetwine.co.nz. If you want to take advantage of the discount for NZBA members, please check the member benefits section of our website.

His wines are the most well-known in Georgia, but also outside of that country, possibly because of his western roots and connections. The wines are all made in Qvevri. The skin contact varies with each grape variety. The skin and stalks floating on top of the wine are called ChaCha, also the name for Georgian grappa. John was kind enough to devote an entire afternoon and evening to our small team and I am pleased to say that five of his wines will be arriving in New Zealand on 19 February and will be available via the Planet Wine website. Of the 22 wineries I visited, having tasted around 150 wines, I will eventually work with 4-6. Some focus on only one variety, while others produce more affordable wines with Georgian varieties that will be required to introduce them to a wider novice audience in New Zealand.

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Petrol Heads’ Corner by David O’Neill*

and back, with a trip out to Cambridge and back (from Hamilton), ended with having to put $30 petrol in it just to get it back to the dealer. This is a total of around about 400kms. Now, I wasn’t hoofing it along at an incredible pace (honest) but I wasn’t driving sedately either.

RANGE ROVER VELAR The local Range Rover distributor handed me the key (if you can call it that) to the latest edition to the Range Rover range of vehicles. It is the Velar. It is mid-way between the Range Rover Vogue/Sport and the Range Rover Evoque. To put it in perspective, I would say that its competitors are the Audi Q5 and the Porsche Macan. It is priced in that market and like all these vehicles, it comes with all the singing and dancing toys. Mine was a smart dark charcoal grey. I don’t know what the people at Range Rover call it but that’s what it looked like. It was the press drive vehicle and, strangely enough, had a white leather interior. Hardly the interior you would expect for a car that’s going to be sat in by 20 or 30 different people up and down the country who really wouldn’t give a toss whether they had dirty clothes on or not (or so I assume). The car is different from the other Range Rovers that I have driven in that it had very high spec electronics including a huge touch screen. It was presented to me in beautiful condition, but after a week of driving it, the touch screen looked like a grubby toddler’s dinner place setting at the table. There were finger marks everywhere. Touch screen is fantastic, and it looks smart, but it doesn’t look too flash after a week of heavy use.

I think I would be prepared to sacrifice the power for the diesel and get there without having to purchase large chunks of Caltex or BP. Range Rover hail this vehicle as their next generation car and it’s very striking. It retains the usual aggressive snout but, to my mind, it looks more sinister than the RR. I liked it. I thought it was a very good-looking vehicle. Range Rover has added a feature which makes it look ultra-sleek – door handles that recess into the body when you lock it. I did have visions of a child’s fingers being lopped off when an unsuspecting parent walked off and locked the car without looking, but the sales manager at Duncan & Ebbett put his body on the line and stuffed his fingers under the door handle and locked it at the same time. The door handle does spring back out as soon as it encounters resistance. The car had plenty of room. We were able to put golf clubs in quite easily; it fitted two sets and two trundlers with ease. There is a tonne

I had the top of the range, high-spec Velar which had the 3L V6 petrol super-charged motor in it. I understood it was the same motor as the Jaguar F Pace. For a heavy SUV, it is incredibly quick. However, the speed and weight come at a price. My trip to my usual destination of the beach

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of room in the back seat for guests (note I said guests – it doesn’t feel like you convey passengers around the place – too “tally ho” for that); however, the fifth person in the middle might find it a little bit uncomfortable because they’re sitting on a ridge.

At $185,900 base price, it is not cheap and it is one of those vehicles you would need to compare to others in the same class. The Velar is totally different from the Audi Q5, which is totally different from the Porsche Macan. Comparing them as diesels, makes for an unfair comparison because the Macan and the SQ5 sport twin turbo diesels whereas the Velar has a single turbo diesel. It still develops 221 kw and 700 Nm of torque. It sips diesel and claimed 6.4 litres per 100 kms. However, a sprint time of 6.5 seconds from 0-100km/h makes it a relative sloth in comparison to its competitors.

Like most cars I review, you have to re-think all the control settings and positions. The same applied here. Once you get the hang of using the touch screen, it is remarkably easy to navigate around the systems. There is one drawback to a touch screen; the accidental tap. We were toddling across the Hauraki Plains and I was talking to somebody on the phone (handsfree of course) and, to emphasise a point, I inadvertently tapped my finger against the touch screen, which turned the fan on full blast mode, rendering conversation pointless. I had to terminate the conversation and we spent the next 10 kms trying to work out how to turn the fan off. It was blowing a gale in the car and you couldn’t hear yourself think. Once I worked out what I was doing with the fan buttons, the rest was child’s play, as they say.

The super-charged petrol version puts out 280 kw of power and 450 nm of torque but, as claimed, (and I frankly doubt it) 9.4 litres/100 kms and 5.7 seconds 0-100 km - you can see the trade-off between power and economy. In summary, it looks cool, drives (sort of ) nicely and with great gusto, but is thirsty into the bargain and doesn’t corner as well as the other SUV’s in the same price range. * David O’Neill is a Hamilton barrister, and a member of the NZBA Council. His Petrol Head's Corner column is the environmental battlefield of the At the Bar editorial team, and only his position as Editor-in-Chief allows him to get away with his fossil-fuelled passion. Well, that and the fact that the Executive Director agrees with him, so it is two to one [Which is as it should be – Ed-in-C].

Putting your foot down is rewarding (apart from the petrol usage) and the car responds quickly and speedily, going past the speed limit with ease. One of the features about the vehicle that I didn’t like was the suspension. To my way of thinking, it wallowed when it went over a bump or around a corner. There was no sharp bang as you hit a bump but there was no tautness in the cornering ability either. In discussing this with the sales manager at Duncan & Ebbett, he confirmed that this was what Range Rover were trying to do, namely sacrifice handling capabilities for comfort. I am used to a much firmer suspension and didn’t like it much. But, as they say, it’s horses for courses. It was air suspension, so it could be firmed up or allowed to let you waft along in a cocoon of luxury. The car turns heads because it is well proportioned and stylish. It is not as big as the Range Rover Vogue and people look twice, wondering what it is actually is. It looks like the Vogue but is different. I would describe it as curvier and slightly more space age looking than the others.

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2013-2014 COUNCIL CONTACT DETAILS

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