At The Bar April/May 2022

At The Bar April/May 2022

Atrocity Crimes Quantum Meruit Mental Health

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p21 YOUR ASSOCIATION 4 From the President – Paul Radich QC 7 Korero – Chambers News 11 Committee News – Employment Law & Privacy Committee; Family Law Committee 14 New Members – New members of the Association

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LEGAL MATTERS 15 Quantum meruit and unjust enrichment in New Zealand – Andrew Skelton discusses non- contractual quantum meruit 18 The Role of the District Inspector for Mental Health – Rosemary Thomson outlines the role and its processes 21 Forensic accountants – An expert update 23 Accountability for atrocity crimes – Efforts to codify crimes against humanity PRACTICE AND LIFESTYLE 27 Leveraging the effects of the pandemic – Insights of a legal intern 29 A survival story – How did your pandemic experience compare to the survey?

31 Beyond a growth mindset – The benefit mindset 33 How to cope with distressing world news – Dealing with overload and anxiety 36 Mindfulness – An essential tool for the modern lawyer 40 Book Review – The Power of Wellbeing - Clive Elliott QC 42 Petrol Heads’ Corner – Comparing cars during Covid

p43 The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture.

EDITORIAL COMMITTEE David O’Neill - Editor-in-Chief Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Jacqui Thompson (Editor) Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz

Lisa Mills (Compilation and advertising) Tel: +64 9 303 4515 Email: nzbar@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224

NEW ZEALAND BAR ASSOCIATION | NGĀ AHORANGI MOTUHAKE O TE TURE Tel: +64 9 303 4515 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140

From the President Paul Radich QC*

Kia ora koutou, Together with the leaves on our trees, our traffic light has changed to orange. And so the freedoms we cherish are returning. We are venturing once more beyond our suburbs, into our towns and cities, across our country, and across the world.

We are appearing in courts in person more regularly.

Junior and intermediate barristers who have for the last year or two been deferring their overseas work experience are making plans to go. Others are making plans to return. The market and the ways in which we practice have changed markedly. We are perhaps more broadminded now, more versatile in the ways in which we practice. In some ways, the restraints on our freedoms have, as they are unwound, left us freer in the ways in which we think about, and go about, our work.

Before reflecting on the ways in which our increased freedoms are assisting with our activities at the New Zealand Bar Association|Ngā Ahorangi Motuhake o te Ture, it is worth pausing to look beyond our borders, in order to put our own experiences here into perspective.

It goes without saying that the conditions faced by Ukrainians are the most distressing one could imagine.

We join with the International Bar Association Human Rights Institute’s support for the recent decision of the United Nations Human Rights Council to establish an independent international commission of inquiry, mandated to investigate all alleged violations of human rights and of international humanitarian law in Ukraine; to collect and analyse evidence of violations and abuses for the purpose of future legal proceedings.

Other UN Human Rights Council resolutions over recent weeks might be observed. Recently, the Council extended the mandate of the Office of the High Commissioner for Human Rights Examination on Belarus. The Examination is tasked with collecting and preserving evidence of human rights violations.

The Council adopted a resolution on Myanmar with enhanced monitoring and reporting on the ongoing crisis, and with robust calls for suspension of arms transfers. It condemned the arbitrary detention and ill-treatment of lawyers and human rights defenders in Iran, Venezuela and Turkey. It recorded ongoing concern about the independence of lawyers in Afghanistan, particularly after the Taliban gained access

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to the Bar’s database containing the addresses and records of 2500 lawyers.

Freedoms have been constrained for other reasons in Peru which has introduced a state of emergency and curfews to quell violent protests about rising food and fertiliser prices. In Sri Lanka, a state of emergency has been imposed and the country’s president, Mr Rajapasaka, has dismissed most of his cabinet, following protests in response to dwindling fuel supplies and food shortages.

On the positive side of the ledger, the main sides in Yemen’s civil war agreed to a truce on 2 April, the first day of the fasting month of Ramadan, in the hope of renewing negotiations for a durable peace.

And, as a more general point of interest, three Republican senators joined the Democrats to seal the appointment to the US Supreme Court of Kentaji Brown Jackson who had served recently as a judge of the United States Court of Appeals for the District of Columbia. The new judge has a diversity of legal experience, including as a public defender for Guantanamo Bay residents. She replaces Justice Stephen Breyer, a fellow liberal judge for whom she once clerked.

There is much that is positive to report upon in the Bar Association’s world, too.

The Council The members of the Bar Council and I are delighted to announce that Kingi Snelgar from Bankside Chambers in Auckland has joined our Council as a co-opted member.

Kingi is of Ngāpuhi, Ngāti Whakaue, Te Whakatōhea and Ngāi Tahu. He is an experienced litigator who has appeared at all levels of our courts. Kingi began his career in criminal prosecution at Meredith Connell, before completing an LLM at Harvard Law School as a Fulbright Scholar. He then joined the bar, practising in Manukau as a Youth Advocate and defence lawyer.

Kingi was appointed an inaugural Commissioner on Te Kāhui Tātari Ture, Criminal Cases Review Commission.

He is counsel to assist the Royal Commission into Abuse in State Care. In addition, Kingi is well known for his work with te Hunga Rōia Māori o Aotearoa, where he chaired the criminal committee. Kingi‘s practice encompasses regulatory investigations, civil and commercial litigation and dispute resolution, and Inquiries.

APRIL / MAY 2022

Kingi has thrown himself into the Council’s work and we are lucky to have him. He has taken the Chair of te Ao Māori Komiti and has become involved in a range of projects.

Our Council comprises a truly remarkable bunch of people who are giving back to the profession on a daily basis. Our structures are so lean that, alongside our Secretariat team, Council members are working daily to achieve our objectives. Whether it is organising our conference, arranging collegial functions, advocating on access to justice, promoting diversity, submitting on legislation or reviews, liaising on behalf of the bar with the Law Society, or travelling to ceremonies or meetings, they are truly committed and give generously of their time. My sincere thanks to them all.

The Judiciary The recent appointments to the bench have been welcomed by the profession. Following on from Justice William Young’s retirement, the Hon. Justice Stephen Kós has been appointed a Judge of the Supreme Court / te Kōti Mana Nui. His role as President of the Court of Appeal / te Kōti Pīra will be taken by the Hon. Justice Mark Cooper. The Hon. Justice Sarah Katz has been appointed a Judge of the Court of Appeal to fill the vacancy created in that Court.

This in turn has created a vacancy in the High Court, which is to be filled by barrister and solicitor Kiri Tahana. Justice Tahana is of Ngāti Pikiao, Ngāti Makino and Tapuika (Te Arawa). Her Honour has had an outstanding career with significant roles in Aotearoa New Zealand and overseas. More recently she has been a partner at Kāhui Legal. At a personal level, having worked with Justice Tahana at Bell Gully – more than a few years ago now – it is a true delight to be able to celebrate her appointment.

The District Court welcomes new judges too. Janey Louise Forrest of Wellington, Alexander Rangiheua Henry Laurenson of New Plymouth and Sarah Margaret Morrison of Wellington have been appointed as District Court Judges. Both Judge Forrest and Judge Morrison were members of our Family Committee.

Judge Laurenson was a partner at Govett Quilliam.

Judge Forrest will sit in the Manukau District Court, Judge Morrison will take up her appointment with a Family Court warrant in the Waitakere District Court, and Judge Laurenson will be based primarily at the Papakura District Court. Our warm congratulations to them all.

The panel appointed to conduct the review is Professor Ron Paterson (Chair), Jane Meares, and Professor Jacinta Ruru. They will address six workstreams, with te Tiriti o Waitangi applying across them all. The streams are: 1. Complaints and discipline.

2. Conduct and culture.

3. Appropriate separation of interests and functions.

4. Regulated services.

5. Te Tiriti o Waitangi, biculturalism, inclusion and diversity.

The panel will be issuing a discussion paper within the next month or so and we look forward to engaging with you all on the points that arise, so that we can provide targeted feedback from the perspective of the independent bar.

Our Committees Our work for you, our members, is delivered primarily through our committees, which are chaired by Council members. Their activities are too many to mention in full, but I want to outline some of them here.

Our Te Ao Māori committee is investigating initiatives that would increase members’ familiarity with tikanga and basic reo Māori. Importantly it will be looking at initiatives to ensure that those members who identify as Māori feel that they are welcome and valued within the Association.

Our Membership and Wellbeing committee is looking to get a range of collegiality events underway now that the light is orange. We are very much looking forward to being able to see you in person again.

Our Diversity and Inclusion committee has been working on two key deliverables. The first is equitable briefing. The team is working with the Law Society on rolling out the Gender Equitable Engagement and Instruction Policy (introduced in March 2018) into the Gender Equality Charter. This will simplify the procedure for signatories and improve reporting on targets. Secondly, the Committee is working with Auckland University of Technology on mooting initiatives, which we look forward to discussing with you all shortly.

The New Zealand Law Society Review

On 19 May, Chief Employment Court Judge Christina Inglis will join members of our Council, and our committees for a discussion on judicial diversity. This is and important topic and we thank her Honour for taking the time to meet with us.

Late last year the Law Society announced an independent review of the statutory framework for legal services in Aotearoa New Zealand to examine the regulation and representation of legal services, including the structure and functions of the Law Society.

Our Education committee has been active in delivering our ongoing free webinar series. We are maintaining our commitment to our members in these times when collegial events are difficult to manage, to provide training without charge. The series has included engaging chats with Colin Carruthers QC and Clive

APRIL / MAY 2022

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Elliott QC and webinars on criminal case theory and strategy, and on closing addresses. And we recently enjoyed a delightful happy hour, swapping notes on remote court appearances. Significantly, we are on track to deliver our thrice-adjourned conference in September. [If this tempts fate and it all goes wrong with another delay, please note it is the President's fault. - Ed.] Our specialist area committees are carrying heavy loads.

Our Criminal committee’s work has been exacerbated

by Covid and the need to liaise regularly with the judiciary, the MOJ, Department of Corrections, and other legal organisations over the operation of the courts. In the background there are two major workstreams dealing with criminal procedure and with disclosure. The deadlines for consultation have been tight. A significant vote of thanks is due to those who, week after week, have been providing comments and feedback.

Thanks for staying with me this far. I wanted to give you all a sense of the remarkable work that is being done across the organisation. A couple of pages do it no justice but there are dedicated teams of people here who are committed to making life at the bar a better place and to representing its interests, legally, politically and practically.

Ups and downs…

It has very much been a year of ups and downs.

For the winter ahead, meteorologists predict La Niña conditions but warmer than average temperatures.

Inflation is on the way up, due not just to imported items but, more so, to non-tradable items and those produced domestically. (Our minds are taken back to the introduction by Roger Douglas of the “0 to 2%” reserve bank inflation target.)

Our Family Law committee is likewise focussing on education at the moment. There is a fuller report on this committee on p13. One of its aims is collegiality, which the Committee notes is a core ingredient of being at the bar. I encourage everyone to get involved in this way.

There has been a 20% decrease in prisoners on remand since December 2019 but an increase in the time that people are spending on remand (see p32 of the Chief Justice of New Zealand’s Annual Report). There has been a real increase in the use of specialist courts to provide wraparound support for people going through court processes and to address the root causes of their offending (Te Ao Mārama, the Young Adult Court and Porirua, the Matariki Court in Kiakohe, the Court of Special Circumstances in Wellington and the Alcohol and Drug Treatment Courts in Auckland, Waitakere and Hamilton). There has been an ongoing decrease in the number of legal aid providers (a crisis we are committed to continue addressing) and a marked increase in judicial diversity.

We are forever grateful for the wisdom from our Commercial Bar committee in relation to the Association's affairs.

I hope that there are more ups than there are downs – more highs than there are lows – in your practices as we head into winter. My very best wishes to you all.

In a similar vein, the work of our Audit Risk and Governance Committee is crucial in our operations.

This committee’s terms of reference are to support the Council in fulfilling its responsibilities with risk management systems, internal control structures, financial reporting, compliance with laws and regulations and with its internal and external audit functions. It is vital work that goes to the heart of our accountability.

Kia noho haumaru – stay safe

Our Employment Law and Privacy committee will be presenting two webinars over the next couple of months - on workplace investigations and on employing junior barristers. And it is working on a variety of law reform matters. For more information, see the report on p11 of this issue.

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Ngā mihi mui,

*Paul Radich QC is the President of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture. If you have any questions or comments about this column, please email him via president@nzbar.org.nz

APRIL / MAY 2022

Kōrero – Chambers News Update from Bankside The first quarter of 2022 has been exciting for Bankside Chambers. We warmly welcome four exceptional barristers and take this opportunity to recognise Bankside barristers for their international recognition. We also honour a pioneer of international arbitration, Sir David Williams KNZM, QC, with a Special Volume of the Auckland University Law Review, led by Dr Anna Kirk.

Aidan Cameron joins Bankside Chambers as an independent member after working as an employed barrister for a number of years for Bankside members Kate Davenport QC, Derek Nolan QC, Simon Foote QC and Rowan Butler. Aidan has a strong pedigree in civil, trusts and estates, and resource management litigation. Aidan provides advice and advocacy services to a broad spectrum of clients, from top-10 NZX listed firms to sole traders and SMEs, as well as private clients, and frequently appears in the senior Courts. Aidan can accept direct instructions on certain matters and works closely with instructing solicitors to achieve high-quality solutions for their clients.

David Johnstone joins Bankside Chambers following a lengthy period as a partner in a top tier law firm, practising in regulatory and particularly criminal litigation. A member of the Serious Fraud Office’s prosecutors panel, he has extensive experience in commercial and regulatory compliance, particularly in anti-money laundering enforcement, and prudential supervision.

Kingi Snelgar (Ngāpuhi, Ngāti Whakaue, Te Whakatohea, Ngai Tahu) joins Bankside as an experienced litigator. He has appeared before the District Court, High Court, Court of Appeal and Supreme Court. Kingi began his career at Meredith Connell specialising in criminal prosecution before completing a Master's of Law at Harvard Law School as a Fulbright Scholar. He joined the bar practising in Manukau as a Youth Advocate and defence lawyer. Kingi was appointed as an inaugural Commissioner on Te Kāhui Tātari Ture, Criminal Cases Review Commission. Kingi is also counsel to assist the Royal Commission into Abuse in State Care.

He is available for roles as both senior and junior counsel.

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Sharon Chandra is an experienced family lawyer, having spent over a decade practising exclusively in the area of family law. Sharon has expertise in all areas of family law, with a specialist focus on relationship property and trust and estate litigation. Sharon has been named one of the recommended leading family and relationship property lawyers in New Zealand according to Doyle’s Guide 2022 and 2021. An Auckland City representative for the Family Law Section of the New Zealand Law Society, Sharon is also a contributing author to leading online legal research service, Westlaw, and publishes family law articles in various legal publications.

We congratulate 15 Bankside barristers who received rankings in the 2022 Chambers and Partners Asia-Pacific Guide Rankings, and we also congratulate those in other Chambers in New Zealand who received rankings. See bankside.co.nz/post/top-ranking for the full article.

Sir David Williams KNZM, QC has been honoured with a Special Volume of the Auckland University Law Review, led by Dr Anna Kirk. The publication features Articles

by Dr Simon Foote QC, Sam Jeffs, James Hosking and Diana Qiu. We are proud sponsors of this Special Volume and proud to have one of the world’s best international arbitrators here at Bankside. Read more at bankside. co.nz/post/honouring-sir-david-williams-qc

Bridgeside Chambers Bridgeside Chambers in Christchurch has announced an expansion that has effectively doubled its size. Alanya Limmer, Lisa Preston, Matthew Prendergast and Helen Bennett have joined current members, James Rapley QC, Simon Shamy, Philip Shamy, Kerry Cook, Glenn Jones and David Caldwell. Helen Coutts (formerly employed by Jonathan Eaton QC before his appointment as a High Court Judge) is now a barrister in her own right and associate member of chambers. Ben Shamy has joined chambers as an employed barrister working for Philip Shamy.

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Trevor has been at the bar for nearly thirty years after some time as a partner in a general practice firm.

Trevor’s practice covers a full range of civil dispute resolution with particular involvement in conveyancing and real property issues, trusts and estates, and higher value relationship property. He is also a Fellow of AMINZ and a member of its Arbitration Panel, as well as being an accredited RMA Commissioner (with Chair endorsement). He is very experienced in assisting parties at mediation. Trevor is available nationwide.

Bridgeside is also delighted to count Fiona Guy Kidd QC, Ian Robertson SC and Tiana Epati as door tenants. James Rapley QC notes that door tenancy is an important part of the chambers ethos, as it promotes collegiality and learnings from those working in other areas of the country and abroad.

Founded in 2002, by Jonathan Eaton QC (now Justice Eaton), James Rapley QC and Simon Shamy, the original chambers overlooked the Armagh Bridge, which gave the set its name. Following on from the Christchurch earthquakes, the chambers relocated to Level 6, 77 Hereford Street - this time right next to the Hereford Bridge. The recent expansion has resulted in the addition of the whole of the space on Level 5. This has allowed the chambers to accommodate juniors, the new members, and provides capacity for growth.

Clifton Chambers Steve Wragg has recently moved to the independent bar, joining Clifton Chambers in Wellington, where he will continue to specialise in employment and health and safety law. Steve has 20+ years’ legal experience gained in the UK and New Zealand. Prior to becoming a barrister sole, Steve led the in-house employment law team at Te Herenga Waka – Victoria University of Wellington for more than five years, and before that held roles as a Senior Associate at Dentons Kensington Swan and MinterEllisonRuddWatts. In addition to general employment law and health and safety advice and representation, he is available to conduct independent employment investigations and workplace culture reviews.

Eldon Chambers Paul David QC, Sarah Wroe and Associate Member Fiona McGeorge welcome three new members to Eldon Chambers.

Trevor Shiels QC of Ten George Chambers, Dunedin has now also joined Eldon Chambers in Auckland as an Associate Member.

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Jason Mackie is an experienced civil and commercial litigator and former Crown prosecutor. His practice areas include insurance, professional and general liability claims, leaky building litigation, commercial property and construction disputes, commercial regulatory prosecution, and ADR. Tom Ashley is employed as a barrister by Paul David QC and Sarah Wroe.

Tom is a former professional athlete (and was Olympic champion in windsurfing in 2008). After retiring from sport, Tom graduated LLB(Hons) at Auckland and started his law career at a large Auckland firm. He left that firm in 2016 to pursue further opportunities in sport as Head Coach of the Chinese national windsurfing program and, most recently, CEO of Canoe Racing New Zealand. Tom joins Eldon Chambers as an employed barrister working with Paul David QC and Sarah Wroe. He will remain at Canoe Racing NZ as CE during his transition back into the legal profession.

Kate Sheppard Chambers Kate Sheppard Chambers has recently welcomed two experienced barristers, Julie Kane and Rachael Ennor.

Julie has diverse capabilities across multiple areas of law. She has experience in regulatory, competition, criminal, and fisheries law, gained over 20 years of practice. Rachael also has more than 20 years’ experience in public law. She has conducted litigation at all levels in New Zealand courts as lead or sole counsel and has particular expertise in appearing before the Waitangi Tribunal. For more detail about Rachael and Julie’s expertise, see https://katesheppardchambers.co.nz/.

APRIL / MAY 2022

Kōkiri Chambers Barristers, Bernadette Roka Arapere and Rohario Murray, have established Kōkiri Chambers, a kaupapa Māori, virtual barristers’ chambers.

Bernadette (Ngāti Raukawa te au ki te Tonga, Ngāti Tūwharetoa and Ngāti Maniapoto) was formerly Crown Counsel in Public Law at the Crown Law Office and in private practice. Rohario (Ngāi Te Rangi, Ngāti Ranginui, Tūhourangi, Ngāpuhi) joins Kōkiri Chambers from the legal team at the Ministry for the Environment and worked previously as Crown Counsel in the Treaty team at Crown Law. Kōkiri Chambers’ barristers have expertise in Public and Administrative Law, litigation and dispute resolution, Te Tiriti o Waitangi, Māori Legal Matters and Environmental Law. Both barristers are speakers of Te Reo Māori and have authentic knowledge of tikanga Māori.

The virtual nature of Kōkiri Chambers allows barristers to stay connected and available to assist clients with legal matters wherever they may be located.

Kōkiri Chambers operates in accordance with mātāpono (principles) and their vision – "Hāpaitia te kaupapa, manaakitia te tangata, hei oranga mō te iwi - Champion the cause, care for others, for the wellbeing of all."

Ai ua, ai hau, ai marangai. Kōkiri!

Withstand the rain, the wind, the storms. Go forth! www.kokirichambers.nz

Shortland Chambers Since its beginnings in 1986, Shortland Chambers has been home to New Zealand’s highest calibre barristers.

In February 2022, the members were pleased to welcome three new members, Simon Ladd, Desley Horton and Andrew Peat.

Formerly a senior litigation partner at Bell Gully, Simon Ladd is an experienced commercial and regulatory lawyer, specialising in competition law, the CCCFA and financial regulation, construction disputes, insurance law, and civil litigation. He is an experienced advocate and mediation counsel.

Desley Horton joins Shortland Chambers from Wilmer Cutler Pickering Hale and Dorr LLP in London, where she worked in the firm’s international litigation and arbitration team. Prior to that, Desley completed her Master's in

APRIL / MAY 2022

Law at Stanford University and was a member of Russell McVeagh’s litigation team in Auckland. Desley practises in commercial and civil litigation and has particular experience in contract, company and trusts disputes.

Andrew Peat is welcomed back to the independent bar and chambers following a period in private practice.

Andrew acts in a wide variety of civil cases, with particular interest and experience in property law and related fields.

Andrew spent a number of years as a junior barrister at Shortland Chambers and, prior to that, practiced at one of New Zealand’s leading commercial law firms. Andrew also has a Master's in Law (Hons, First) from Trinity College, Dublin.

Stephen Mills QC In 2021, Stephen Mills QC, retired from Shortland Chambers after 20 years. Stephen commented that the decision to retire was made “…with very mixed feelings, but ultimately with certainty”, notwithstanding that he would miss his chambers colleagues.

Stephen graduated with an LLB (Hons) degree from the University of Auckland Law School and went on to earn an LLM degree from the University of Pennsylvania Law School. For some years, he pursued an academic career, teaching at the University of Michigan Law School, the University of Auckland Law School, Lewis and Clark Law School in Portland, Oregon, the University of Western Ontario Law School and Dalhousie Law School.

In 1986 Stephen joined Chapman Tripp, becoming a partner there in 1989. During that time he was Chair of the firm and Chair of the Partner Admission Committee.

He joined the independent bar in 2002, taking Silk in 2007. Stephen sat on the Bar Council of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture from 2004 until 2015, and he served as President from 2012 to 2014. During his presidency, he helped the Association host its extremely well received World Bar Conference 2014. Stephen also led the successful negotiations with the Law Society and the Minister of Justice on the retention of the intervention rule, which is pivotal to the independence of the barrister’s role.

With a broad commercial practice, and a specialist practice in defamation, Stephen has appeared in a number of leading cases over the last 20 years, as well as acting as counsel assisting the Royal Commission of Inquiry into Building Failure Caused by the Canterbury Earthquakes.

He led the Royal Commission’s legal team in the 10-week hearing into the collapse of the CTV building (May 2011 to October 2012).

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Although Stephen has a number of on-going court commitments through 2022, his intention is to be fully retired by the end of the year. He has a new email address: stephen.millsQC@counsel.nz and can be contacted on his mobile number. Stephen's website is www.counsel.nz.

Tyler, Kerr and Sneddon (pictured in order) have put together a series of events called “Doing Law Differently”.

Each session will focus on various aspects of doing law differently and will address two core purposes.

The Bar Association joins Shortland Chambers in wishing Stephen all the best for his (eventual) retirement.

The first is to increase awareness of different ways to practice by sharing the stories of people who are working differently and offering guidance and support to those considering a different career pathway. The second is to create a community with opportunities for networking, collaboration and collegiality.

Doing law differently The practice of law has changed dramatically over the last two years as lawyers have been forced to adapt traditional models into a more flexible practice that accommodates work-from-home needs and modified family arrangements. There is a community of lawyers at the forefront of innovative practice, actively seeking ways to practice law differently, and they were doing so long before the pandemic. They aim to make connections and share experiences about re-imagined legal careers and client services.

Barrister Arla Kerr from the innovative and virtual Kate Sheppard Chambers, Prue Tyler (founder of SHIFT Advisory), and Suzie Sneddon (founder of Base Law) are building an informal network of practitioners who find the traditional models of legal practice do not fit with their lives or career aspirations. All have branched out to do things differently.

Of special interest to those at the bar, there is a panel session in May hosted

by Kate Sheppard Chambers. The sole practice panel will be moderated by Charlotte Griffin and will include Dhilum Nightingale and Elana Geddis. The panel will explore the flexibility and opportunities offered by the bar, including Griffin’s experience as a founding member of Kate Sheppard Chambers, how Nightingale uses design thinking in law and how it led her to work with female entrepreneurs in the Middle East, and Geddis’ experience advising on high profile and politically sensitive issues.

Bridgeside Chambers is delighted to announce its expansion and formally welcome the following new members: New Members Alanya Limmer Matthew Prendergast

Lisa Preston Helen Bennett

Associate member Helen Coutts

Employed barrister Ben Shamy

In addition, it takes this opportunity to welcome door tenants Fiona Guy Kidd QC based in Invercargill, Tiana Epati based in Tairāwhiti Gisborne and Ian Robertson SC based in Adelaide, Australia. Bridgeside Chambers is now situated on both Levels 5 and 6, Brother House, 77 Hereford Street, Christchurch. For more information on new members and chambers in general, please visit www.bridgesidechambers.co.nz

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APRIL / MAY 2022

Committee News Barbara Relph*

Employment Law & Privacy Committee Working to promote employment law and privacy initiatives

With an increasing cohort of barristers working in the niche speciality of employment law and privacy, it seemed timely for the NZBA to set up a bespoke special interest committee. One objective of the Employment Law & Privacy Committee is to provide a voice for this group of practitioners and ensure a broad appeal of topics in terms of both CLE and in the annual Conference Programme.

Committee members Rachel Burt (Chair) and Maria Austen note that in recent years workplace investigations and reviews have become a focus area for specialist barristers. Law firms engage these specialists to work on employment law projects because they value their independence, experience and expertise. Independence and specialist expertise are key components for workplace investigations which are inherently confidential, and there is also significant focus on privacy law and how it applies in this area.

Along with practical tips and tricks for remote hearings, and a Q&A with the Acting Privacy Commissioner, workplace investigations is an area this new Committee will be addressing through online NZBA presentations and masterclass type sessions.

The Employment Law & Privacy Committee also aims to engage with the NZLS and ADLS employment law committees and the Employment Law Institute of New Zealand (ELINZ) to address regulation of advocates, an increasing area of concern and believes having the NZBA as a supporting body to campaign on the issue will be helpful. “Linking with other employment law committees assists in coordinating efforts; ensuring we are not reinventing the wheel,” says Burt.

Aspiring to greater diversity at the Bar, the Committee is looking to develop a mentoring programme and is focused on raising practitioners’ self-awareness (including understanding unconscious bias).

Combined with more general NZBA aspirations of improving access to justice, raising awareness of probono initiatives, and enabling greater networking and attendance at NZBA events, the Employment Law & Privacy Committee is a welcome addition to the Bar Association and encourages greater collaboration and inclusion of speciality bar counsel.

APRIL / MAY 2022

Committee members Rachel Burt, Chair Rachel is an employment and human rights barrister who has over 20 years specialist experience, including ten years at Dentons Kensington Swan. Rachel is an experienced and AWI qualified workplace investigator who has acted for numerous state sector and private organisations conducting investigations and reviews over the past five years.

Rachel also acts as an independent facilitator and mediator in employment disputes. Rachel says it is a pleasure to have the opportunity of helping to develop a collegial and supportive specialist bar that can focus on the key issues affecting employment barristers.’

Maria Austen Maria is an experienced employment lawyer. Her practice is focussed on advocacy and privacy work for public and private sector employers in all areas of employment. Maria also undertakes independent investigations and reviews.

Following experience obtained working at a large commercial firm, Maria joined the independent bar as a barrister specialising in Employment law in 2012. Maria is a member of the New Zealand Law Society Employment Law Committee’s Wellington branch and the Australasian Association of Workplace Investigators (AAWI). Maria holds the AWI-CH distinction for investigators having qualified at the training institute in Monterey CA in 2017.

Kathryn Dalziel Kathryn is a barrister at Walker Street Chambers. She has practiced in privacy and employment law for over 30 years. Kathryn teaches at the University of Canterbury in employment law and privacy and has contributed to publications, seminars and conferences on these topics.

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Geoff Davenport Geoff has been a specialist employment lawyer for over 28 years. He has worked in New Zealand and overseas, including for the United Nations. He has a Master's Degree in Law, focusing on issues of good faith. He acts for public and private sector employers, unions and employees throughout the country, and commenced at the bar in May 2019.

Maria Dew QC Maria has a focus on all areas of employment law. She is currently the President Elect of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture.

Maria also serves as a Deputy Chair of the Health Practitioners Disciplinary Tribunal and an expert panel member on several legal panels. In recent years, she has gained a strong reputation for leading independent investigations and reviews on public matters. Maria has a strong commitment to furthering access to justice by improving access to legal aid and supporting the work of pro bono organisations.

Tanya Kennedy Tanya is an employment law specialist at Lambton Chambers.

She has over 20 years’ experience in employment law, and also privacy law as part of her employment and education law practice. She joined the independent bar in 2019, and acts for employees, employers, and Unions. Tanya has experience in the full range of employment law matters.

Andrew Marsh Andrew is a Christchurch barrister who has acted for both employers and employees throughout his 25+ years career. He was a partner in Saunders Robinson Brown from 2006 until he commence practice as a barrister in May 2018, dealing with a wide range of commercial litigation matters, but with specialist knowledge in employment law.

Karen Radich Karen is a member of Clifton Chambers in Wellington. She has practiced as a specialist employment lawyer since the mid-90s, including nine years as partner in a large firm.

Karen provides the full range of employment law services to both employers and individuals, from advice

12

and representation (in all forums) through to conducting employment investigations. Karen has been involved in NZLS employment law committees for many years, including as convenor, and is delighted at the advent of a committee for barristers who are practicing in this space – particularly after the challenges brought about

by Covid-19, which has had a significant impact on both employers and employees, and around which case law is still developing.

Rachael Schmidt McCleave A member of Kate Sheppard Chambers and based in Wellington, Rachael has worked in public and private practice in NZ and the UK since admission in 1996. She joined the Independent Bar from Minter Ellison Rudd Watts in 2014.

Rachael has extensive expertise in professional discipline, medicolegal and public law as a result of almost a decade at the Crown Law Office.

Rachael is an Associate of the Arbitrators and Mediators Institute of NZ and is experienced in statutory and other investigations (including employment investigations, statutory reviews and Commissions of Inquiry) and in mediation. She is the author texts on civil procedure and health and safety. She is the President of the Film and Literature Board of Review, a Deputy Chair of the Teachers Disciplinary Tribunal, and Deputy Lawyer Member of the Mental Health Review Tribunal.

Philip Skelton QC Philip is a member of Bankside Chambers in Auckland. He specialises in commercial litigation, employment law, shareholder disputes and public inquiries. His inquiry experience includes litigation experience includes numerous employment related investigations whether on behalf of employers, employees or in the role of independent investigator. Philip was admitted to the Bar in 1983 and commenced practice as a barrister sole in 2006 after 14 years as a Russell McVeagh partner. He was made a QC in 2013.

Jenni-Maree Trotman Jenni-Maree has over 20 years advocacy experience. She was a Member of the Employment Relations Authority from March 2017 until her resignation and return to the bar in September 2020. Following Jenni-Maree’s return to private practice, she has continued to provide civil, commercial and employment advocacy, as well as undertaking workplace investigations, mediations and arbitrations. She has also been providing weekly training to the lawyers at the Auckland Community Law Centre to enable greater access to justice.

APRIL / MAY 2022

Steve Wragg Steve has recently joined Clifton Chambers in Wellington. He has 20+ years’ experience specialising in employment law in the UK and New Zealand, acting for a range of public and private sector clients.

Before moving to the bar, Steve led the in-house employment law team at Te Herenga Waka – Victoria University of Wellington

for more than five years, dealing with a wide range of employment law and privacy issues. He is experienced in conducting and supervising complex workplace investigations and has a particular interest in dispute resolution, including the use of restorative processes, as an alternative to employment litigation in appropriate cases.

Since this article was written, Juliet Philpott has joined the committee. We will provide a bio of Juliet in our next issue.

Family Law Committee

Creating community for family law barristers Three meetings in, and the new Family Law Committee is finding its niche. Chaired by Christchurch barrister Stephanie Marsden, the Committee is considering the strengths of the NZBA and finding ways to use those to promote and assist family law barristers.

Education is a core aspect of the NZBA, and the Committee hopes to extend this framework to meet the needs of those family law barristers stepping up to practice in the High Court but whose experience is limited to the Family Court sphere. The skill set required is different, and the Committee is dedicated to helping practitioners to acquire those skills.

Focusing on supporting family lawyers through Covid-19, Marsden plans to reach out to local NZBA members and the handful of non-member practitioners in Christchurch to offer that support and collegiality, demonstrating this important component of barristerial practice and raising awareness of this new committee’s focus on the wider practice of family law, not just the specialty of relationship property law.

Marsden says that one matter the Committee hopes to consider is the way in which courts are operating under the Covid-19 framework and any implications for fair hearing rights or limitations on access to justice. The Committee will consider the impacts of various practices such as wearing masks and the use of AVL in hearings, and whether these activities may result in missed clues.

The Committee will report to the Bar Council on these issues, so that it can consider this advice alongside the feedback it is receiving from other committees and Bar Association members.

Acknowledging existing strong interest groups such as the Family Law Section of the NZLS, the Family Law Committee aims to support family law members of the NZBA but in a different way. “Collegiality is an important aspect of being a barrister and being a member of the NZBA makes you part of something bigger,” says Marsden. “At the core you are attaining excellence in advocacy and best practice, and we aim to raise the practice of family barristers up by being included in this wider community.”

APRIL / MAY 2022

Committee members Stephanie Marsden, Chair Stephanie Marsden joined the independent bar in 2011 and is a member of Canterbury Chambers where she values the professional support, wisdom, and friendship of her colleagues in Chambers.

She enjoys her work resolving relationship property/trust disputes immensely. Her cases often involve complex asset ownership structures and interesting matters of law, set against all the drama and human interest that is part of the practice of family law. She hopes to bring barristers practising family law into active membership of the Bar Association, to be more a part of this distinct branch of legal practice.

Dr Deb Inder Admitted to the Bar in 1998, Deb Inder is a Barrister and Accredited Mediator. She conducts both FDR and private mediations as well as regularly appearing in the Family Court as Court Appointed Lawyer for the Child and on behalf of clients. Deb has a Post Graduate Diploma in Child Centred Practice (with Distinction) and a PhD in Law, her Thesis topic being Children’s Participation Rights within the Context of the New Zealand Family Justice System.

As a result of her research, she has appeared in London to speak at the International Centre for Family Law Policy and Practice Conference and in Wellington at the New Zealand Law Society Family Law Conference.

An accredited NZ Law Society Family Specialist Mediator and a member of the New Zealand Family Law Section, Deb is also a committee member of the Children’s Rights Alliance Aotearoa New Zealand (CRAANZ) an alliance that reports directly to the UN Committee of the Child on the New Zealand Government’s implementation of the United Nations Convention on the Rights of the Child (UNCRC).

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Stephen McCarthy QC Stephen McCarthy has practised as a barrister since 2006. For 20 years or so before that he was partner in a small firm in Manukau. He was appointed QC in 2021.

Family law matters comprise about half of Stephen’s current practice.

He specialises in disputes over relationship property, wills, trusts and estates. He is regularly appointed by the Family Court as counsel in PPPR Act matters and has been occasionally appointed as counsel to assist in other Family Court proceedings.

Stephen has presented numerous seminars/webinars and conference papers for the NZLS and ADLS on family law and other topics. He was the convenor of the ADLS Mental Health and Disability Law Committee 1991-1995 and the ADLS Family Law Committee 2001-2003 and has been a member of the Family Law Section since its inception.

Joanna (Jodi) Ryan Jodi Ryan has specialised in family law since 2005 and joined the bar in 2015. Shelley Stevenson, Frances Williams and Jodi established Kumutoto Chambers in Wellington in 2020. She has previously served on the Family Law Section executive and as the Hutt Valley FLS regional representative. Her practice is predominantly made up of lawyer for child, Care of Children/OT and P(R)A work, rounded out with some Family Violence, PPPR and Family Protection matters. Like many others, Jodi juggles her mahi with being a partner and a parent and is grateful for the flexibility being at the bar allows (at least most of the time!).

Barbara Relph is a writer, editor and proof-reader. www.barbararelph.com

New Members Jack Alexander

AUCKLAND

Kishen Kommu

AUCKLAND

Georgia Bowker

AUCKLAND

Jason Mackie

AUCKLAND

Janette Campbell

AUCKLAND

Geoffrey (Geoff) Martin

Sharon Chandra

AUCKLAND

Sean McAnally

Paul Cogswell

AUCKLAND

Rohario Murray

Paul Dalkie

AUCKLAND

Rion Norris

CANTERBURY

Kadri Elcoat

AUCKLAND

Talia Powell

AUCKLAND

Lucinda (Lucy) Rishworth

GISBORNE

Rachael Ennor

NELSON

BAY OF PLENTY AUCKLAND BAY OF PLENTY

Tiana Epati

GISBORNE

Claire Robertson

AUCKLAND

Linda Fulton

AUCKLAND

Hannah Short

AUCKLAND

Alastair Hall

MANAWATU-WANGANUI

Anna Singleton

WELLINGTON

John (Ben) Hamlin

WELLINGTON

Oliver Skilton

AUCKLAND

Taz Haradasa

WELLINGTON

David Stevens

AUCKLAND

Justin Harder

AUCKLAND

Thomas Harre

CANTERBURY

Craig Horsley

BAY OF PLENTY

David Johnstone Matthew (Matt) Josephson Julie Kane Sinead Kennedy

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AUCKLAND NORTHLAND WELLINGTON WAIKATO

Vicki Walsh

CANTERBURY

Deirdre Watson

AUCKLAND

Samantha (Sam) Wilson

AUCKLAND

Nick Whittington

WELLINGTON

Beatrix Woodhouse

WELLINGTON

Steven (Steve) Wragg

WELLINGTON

Hannah Yang

WELLINGTON

APRIL / MAY 2022

Quantum meruit and unjust enrichment in New Zealand Andrew Skelton*

Quantum meruit means the “amount deserved” and refers to a claim for a reasonable sum for work performed.1 A claim for a quantum meruit can arise either as a “contractual quantum meruit” or a “noncontractual quantum meruit”.

A contractual quantum meruit is where the parties have entered into an agreement to provide services but either no price is agreed for the services, or the parties agree that the service provider is to be paid a reasonable price for the services without stating what the price is. The service provider is entitled to reasonable remuneration for the work performed. This is an entitlement that arises under the contract.

A non-contractual quantum meruit arises by operation of law where work is performed for another and there is no contract or no enforceable contract. Noncontractual quantum meruit has been controversial both as to the legal basis for the remedy and valuation of the amount deserved.

In this article, I discuss one of the most common circumstances in which an entitlement to a noncontractual quantum meruit can arise. That is where work is undertaken pursuant to a request to perform work or a letter of intent in the expectation that the parties will ultimately enter into a contract, but no contract materialises (anticipated contracts which fail to materialise).2 In particular, I focus on the recent decision of the High Court in Electrix v Fletcher Construction.3

Unjust enrichment in New Zealand law Many common law jurisdictions, in particular England and Australia, have recognised unjust enrichment as a unifying legal concept for a range of restitutionary remedies, including non-contractual quantum meruit.4 In these jurisdictions, it is recognised that four questions should be considered:5 a. Has the defendant been enriched? b. Was the enrichment gained at the expense of the claimant? c. Was the enrichment at the expense of the claimant unjust? d. Are there any defences available to the defendant?

APRIL / MAY 2022

These questions provide an analytical framework for application of the tests used to identify whether there has been an unjust enrichment at the expense of the claimant.

One such test is “free acceptance” of work or services, for example, where a recipient of services knows that the services are not being provided gratuitously, but fails to take an opportunity to decline the services.6 This is considered to operate as a test for “enrichment” because a reasonable recipient should have known that the person who rendered services expected to be paid for them but the recipient did not take the opportunity to reject the services.7 It is also used as a test of “unjustness” because of the unconscionability of the recipient in not taking the opportunity to reject the services.8 The New Zealand courts have generally refrained from recognising unjust enrichment as the unifying basis for restitutionary claims such as quantum meruit and adopting the analytical framework discussed above.9 In many cases, the Court embarks on a survey of case law and academic commentary, attempting to distil the elements afresh. A recent example is the decision in Northlake Investments Limited v Wanaka Medical Centre Limited.10 In that case, the Court identified nine factors which were considered to be relevant to establishing liability in “inconclusive negotiation” cases.

Several cases have acknowledged academic commentary to the effect that the purpose of the New Zealand law of restitution (and non-contractual quantum meruit) may not be to force the defendant to disgorge some underserved benefit, but to compensate the plaintiff fairly or restore the plaintiff’s position.

Thus, it is suggested that establishing an enrichment or benefit to the defendant may not be necessary.11 However, the law of unjust enrichment and the restitutionary remedies that come with it are not concerned with disgorgement of gains by defendants, nor with compensation for losses suffered by claimants. These are the functions of the law of contract and civil wrongs. Rather, the concern is with the reversal of transfers of benefits between plaintiffs and defendants.12 The element of “benefit” can be difficult. But it is important not to focus only on residual objective benefit, in the sense of marketable residuum or end product. The recipient of pure services (such as a taxi ride) receives a benefit. And where a service produces an end product, it is the value of the work which is central to the claim for enrichment at the expense of the claimant not the realisable value of the end product.13

15

As indicated by the various approaches taken in the New Zealand cases, the eschewing of the analytical framework has arguably resulted in uncertainty and a lack of coherence in New Zealand law as to the doctrinal basis for restitutionary remedies such as quantum meruit and therefore the elements that must be established by the plaintiff. The High Court of Australia in Mann recently confirmed the importance of the analytical framework to the development of the law:14 Although, over time, novel categories of case may come to be recognised, or existing categories refined, that must occur in accordance with the common law’s ordinary process of incremental development: by analogy with decided cases, albeit that, within that process of development and refinement, the four questions [being the analytical framework] may serve to focus attention on the nature, availability and measure of restitutionary relief, and so assist in structuring understanding as to avoid the development of the law of unjust enrichment degenerating into an exercise in idiosyncratic discretion.

The Electrix case The Electrix case arose out of the Christchurch Justice and Emergency Services Precinct project. Electrix was engaged by Fletcher Construction for the electrical services package and undertook the work on the basis of a series of letters of intent authorising work totalling $14,055,145 (GST excl).

Over the course of the works, Electrix issued 42 payment claims totalling approximately $28.9 million.

Fletcher Construction paid Electrix $21.6 million overall, eventually stating that payments were “on account” pending cost substantiation.

Issues arose with regard to payment. Electrix claimed an additional $7 million plus interest from Fletcher Construction for the work undertaken. Fletcher Construction counterclaimed, saying it paid Electrix some $7 million too much, whether there was a contract or not.

The Court found that no contract had been formed between Electrix and Fletcher Construction. While the letters of intent provided evidence that the parties were working with the intention that there would be a contract, the parties did not intend to be immediately bound by essential terms at any point. Although they expected to reach agreement on the contract, they never did.15

Availability of remedy Palmer J reviewed the caselaw and academic commentary in relation to the New Zealand law of noncontractual quantum meruit. He found it unnecessary to utilise the analytical framework adopted in other common law jurisdictions, finding that:16 The New Zealand law of non-contractual quantum meruit is not exclusively tethered to unjust enrichment, but there is reasonable coherence in what is required as a matter of practice.

16

The Court determined that the remedy was available because: there was no contract; and Fletcher Construction requested and freely accepted the services knowing Electrix expected to be reimbursed.17

Doctrinal basis The doctrinal basis for liability in Electrix is not clear.

It is apparent that it is not unjust enrichment. Rather, the Court seems to accept the position of academic commentators that the New Zealand law of noncontractual quantum meruit is more concerned with compensating a plaintiff for services provided or restoring the plaintiff’s position.18 Notwithstanding this approach, the Court adopts, as elements of a non-contractual quantum meruit claim, a “request” for services and “free acceptance” of those services. As noted above, free acceptance is used as a test for “enrichment” and “unjustness”. A request for services has been adopted in some jurisdictions as a test of enrichment on the basis that, where a person requests and receives something a reasonable person would realise is not provided gratuitously, the recipient will be enriched by the receipt.19 Reliance on these tests for unjust enrichment, when the basis of the remedy is expressed to be compensation or restoration (rather than reversal of an enrichment), exposes the doctrinal quagmire that the New Zealand law of non-contractual quantum meruit finds itself in.

Quantum Palmer J acknowledged the approach to valuation of a non-contractual quantum meruit in English law; being to identify the objective market price of the services and then allow for the defendant to prove that it did not value the benefit at all or as much (subjective devaluation).20 He then reverted to the position referred to above, that the New Zealand law of non-contractual quantum meruit does not necessarily require proof of a benefit to the defendant, and can extend to providing redress for those who have been “unjustly impoverished”.21 Ultimately, the approach taken to valuation was:22 a

Determine the cost of the services actually provided as the starting point, i.e., the actual cost to Electrix;

b

Add a market-related profit margin; and

c

If the defendant can show that the actual cost incurred was more than was reasonable for the work undertaken in the market conditions at the time, then the cost is reduced accordingly.

The Court stated that assessing the reasonable cost of the services to the supplier would uphold the plaintiff’s “reliance interest” in the anticipated relationship, which would provide the purchaser of the services with an incentive to conclude the contract. The Court noted that the purchaser is “able to avoid requesting, or to decline to accept the services, which is relevant to liability existing at all”.23

APRIL / MAY 2022

The difficulty with this approach is that the “reliance interest” is typically recognised as an interest protected by damages for breach of contract rather than the law of non-contractual quantum meruit.24 Further, there does not seem to be any reason why the provider of the services should not have as much incentive to conclude a contract as the purchaser. The provider puts itself at risk in continuing to provide the services without a contract, as it does not have the protection of the law of contract and damages. Having run that risk, it is difficult to see why the provider should recover any more than the market value of the benefit conferred on the recipient.

The Court also found that, because there was no contract and no agreement had been reached on the price of the services, it was difficult to put any weight on the evidence about budgets, expectations and negotiations between the parties. However, in Way v Latilla,25 in the context of assessing the value of a non-contractual quantum meruit, the House of Lords held that the court may take into account negotiations between the parties and would be wrong in ignoring them altogether.

There was evidence that Electrix submitted a proposal at a price of approximately $17 million and the parties considered that a “value engineering” process could reduce that price. Subsequently, at least one of the letters of intent referred to a final forecast subcontract value of around $14 million for the electrical services, and letters of intent were issued authorising work to around that amount. There was also evidence of a concerted effort to negotiate a formal contract involving an exchange of agreements; negotiations went through stages of being about a lump sum, costs-plus and verified costs. In the circumstances, it seems that there may well have been sufficient evidence of bargaining

between the parties for the Court to take into account in assessing the value of the quantum meruit.

With regard to potential deductions, the Court found that it would be surprising if some of the problems on the project were not caused by Electrix.26 However, on the basis that there was insufficient evidence Electrix had caused “difficulties or inefficiencies greater than what would usually be expected in a large commercial project”, it was found that Electrix had not materially added to the cost of the project.27 In the end, Electrix was awarded $7,473,207 (GST excl) which must be close to 100% of its actual costs plus profit.

Conclusion The New Zealand courts continue to grapple with the theoretical underpinnings of non-contractual quantum meruit. The cases raise issues as to whether the remedy is about the reversal of benefits unjustly obtained or compensating the plaintiff for work done; and whether the actual cost of the services provided, rather than the market value of the services, is the starting point for valuation.

I propose that the way forward is not to cast noncontractual quantum meruit as a compensatory or restorative remedy, as if it is a remedy governed by the law of contract or promissory obligations. In my view, the New Zealand courts should acknowledge the doctrinal basis for the remedy as unjust enrichment, and utilise the analytical framework adopted by other common law jurisdictions, enabling a principled and coherent development of the New Zealand common law in this area. * Andrew Skelton is a barrister based at Capital Chambers in Wellington. He has been a barrister since 2012 and specialises in civil litigation and arbitration.

REFERENCES Mann v Paterson Constructions Pty Ltd [2019] HCA 32 (Mann) at [150]; Keating on Construction Contracts 11th Ed 2021 (Keating) at 4-031.

For example, Dickson Elliott Lonergan Limited v Plumbing World Limited [1988] 2 NZLR 608; Villages of New Zealand (Pakuranga) Limited v Ministry of Health (2006) 8 NZBLC 101,739 (HC) (Villages); Morning Star (St Lukes Garden Apartments) Limited v Canam Construction Limited CA90/05, 8 August 2006 (CA).

3 Electrix Limited v The Fletcher Construction Company Limited [2020] NZHC 918 (Electrix).

4 Goff & Jones, The Law of Unjust Enrichment, 9th Edition (2016) (Goff & Jones) at 1-06 -1-08; Mann at [199], [212]-[213].

5 Goff & Jones at 1-09; Keating at 4-032; Mann at [213].

6 Villages at [74]-[80].

7 Goff & Jones at 4-43 – 4-50, 17-03 – 17-18.

8 Goff & Jones at 4-43 – 4-50, 17-03 – 17-18; Edelman & Bant, Unjust Enrichment, 2nd Ed, 2016 (Edelman and Bant) at pp 74-75, 129-130, 323-328.

9 Electrix at [73]-[87]. Exceptions include Stiassny v Commissioner of Inland Revenue [2012] NZSC 106, [2013] 1 NZLR 453; Commissioner of Inland Revenue v Stiassny [2012] NZCA 93, [2013] 1 NZLR 140 at [92]-[94]; 10 [2019] NZHC 3443.

11 Morning Star (St Lukes Garden Apartments) Ltd v Canam Construction Ltd CA 90/05, 8 August 2006 at [40]-[50]; Cassels v Body Corporate 86975 (2007) 8 NZCPR 740 at [41]-[43]; Electrix at [73]-[87], [96].

12 Goff & Jones at 1-17.

13 Skelton, Restitution and Contract, Mansfield Press, Oxford, 1998 at pp 8-14.

14 Mann at [213].

15 Electrix at [47]-[72].

16 Ibid at [85].

17 Ibid at [86].

18 Ibid at [85] and [96].

19 Edelman & Bant at pp 68-71.

20 Electrix at [90]; Benedetti v Sawiris [2013] UKSC 50; Mann at [208].

21 Electrix at [96].

22 Ibid at [98]-[99].

23 Ibid at [99].

24 Fuller & Perdue, “The Reliance Interest in Contract Damages” (1936-37) 46 Yale LJ 52 & 373.

25 Way v Latilla [1937] 3 All ER 759, at 764.

26 Electrix at [23].

27 Ibid at [121].

1 2

APRIL / MAY 2022

17

The Role of the District Inspector for Mental Health Rosemary Thomson*

This is a copy of a speech that Rosemary delivered at an ADLS Mental Health Law Kōrero in relation to the Role of the District Inspector. It is republished with the consent of the author.

Appointment process A District Inspector is appointed by the Minister of Health under s 94 of the Mental Health (Compulsory Assessment & Treatment) Act 1992, for a term of three years.

The position is advertised and any qualified barrister and/or solicitor can apply. They must demonstrate that they fulfil the criteria in terms of knowledge of mental health law.

The role of the District Inspector is triggered when a person is detained under the Mental Health (CAT) Act 1992 (MHA), commencing with the s 9 assessment onwards,1 to ensure proper adherence to law and procedure, and that the rights of the patient are protected and respected.

District Inspectors, when attending the inpatient units, are the eyes and ears on the ground. They are not advocates but act as a watchdog to ensure that the service provider is fulfilling their obligations appropriately for the patient’s benefit.

A person who is a voluntary patient does not come within the ambit of the District Inspector role, unless they have signed a written consent document and this has been provided to the District Inspector.

The role of the District Inspector was carried over from the 1969 Mental Health Act but was strengthened and given increased functions under the 1992 Act. This Act has now recently been amended and will eventually be replaced once a full review and consultation has been completed.

The role of the District Inspector under the MHA resulted in a more proactive role rather than a reactive one. This proactive role is encouraged in the following ways: • • •

Assist patients to seek s 16 judicial reviews.

A District Inspector is not permitted to lodge a s 16 within the first five-day assessment period (s 11) but can advise the patient of this right.

The District Inspector does not initiate contact with the patient until after they receive the s 12 five-day certificate of further assessment, at which point the s 16 review is raised.

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• • •

Monitor clinical reviews including facilitating and obtaining second opinions under s 69 if challenging diagnosis or medications.

Visitation and document checking.

Following a s 76 clinical review, make contact and discuss with the patient the right to lodge an application for review to the Mental Health Review Tribunal.

Access to the District Inspector The Ministry of Health has emphasised that District Inspectors’ names and contact details are prominently displayed in the Inpatient Units for patients to be able to access District Inspectors for assistance.

The District Inspector role has often been referred to as that of a mental health Ombudsman.

Although a qualified lawyer, the District Inspector is not counsel and cannot act for an individual. Patients and nursing staff are often not aware of this and it is important to explain and distinguish the role between District Inspector and counsel. It is important to note that the District Inspector does not give clinical advice; this is the domain of the medical team.

The District Inspector’s role is a facilitator assisting and supporting patients in terms of lodging reviews, ensuring appropriate legal representation by counsel and following up any concerns that they raise.

Judicial hearings and Mental Health Review Tribunal hearings The roster of legal counsel was previously administered by the ADLS, but that changed several years ago when the NZLS assumed responsibility.

There was an expectation by NZLS that the District Inspector would arrange counsel for the hearings.

However the reality is that this is done by the Mental Health Administrator Office within the District Health Board (DHB).

The District Inspector has a duty to oversee and ensure that patients are seen at least the day before their scheduled hearing, so that adequate instructions are obtained in advance.

Mental Health Review Tribunal (MHRT) hearings are available once the first s 76 three-month review of the

APRIL / MAY 2022

Compulsory Treatment Order is completed. The District Inspector receives a copy of the certificate of clinical review and must: (a) Communicate with the patient and find out, if possible, whether or not the patient wants an application to be made to the Review Tribunal for a review of their condition. The District Inspector must communicate by talking to them, unless it is impracticable; and (b) Decide, having regard to any view expressed by the patient, whether or not an application should be made.

If that District Inspector considers that such an application should be made, they are required to take whatever reasonable steps they think necessary to encourage or assist the patient, or any of the other persons entitled to apply to the Tribunal, to make such an application.

In recent years, with the change of Secretariat administering the hearings, there is now an expectation by the Tribunal that the District Inspector will arrange representation for the patient. The practical effect is that as District Inspector, I adopt the approach of contacting counsel who appeared at the last Judicial hearing, unless the patient directs otherwise.

Section 75 complaint of breach of rights Section 75 is a mandatory requirement for the matter to be referred to a District Inspector or an official visitor for an investigation.

This section stipulates that, where a complaint is made by or on behalf of a patient that any right has been denied or breached in some way, the matter shall be referred to a District Inspector or an official visitor for investigation.

This requires the District Inspector to talk with the patient, or the complainant (if this is not the patient), and everyone else involved in the case and generally investigate the matter.

If the District Inspector is satisfied that the complaint has substance, they are required to report the matter to the Director of Area Mental Health Services (DAMHS), together with any recommendations they think fit, and the Director shall take all steps as may be necessary to rectify the matter.

On concluding any investigation, the District Inspector shall inform the patient or complainant of their findings.

The inquiry does not stipulate a full written report, although if the matter is serious, usually this occurs with recommendations. It however creates a dialogue between the patient or complainant, District Inspector and the DAMHS and hopefully results in a positive outcome.

The s 75 process does not preclude other avenues such as a complaint to the Health & Disability Commissioner’s Office (HDC).

APRIL / MAY 2022

I approach the role of District Inspector positively and adopt the view that all participants are working together to progress and achieve positive outcomes.

This includes the clinicians and nursing staff.

I am frequently contacted by clinicians with queries about the scope of their jurisdiction in assessing and treating patients, who are mindful of compliance with the MHA. If the issue they raise affects or impinges on a patient’s rights and is outside the District Inspector’s role, I will refer them to the legal section of their District Health Board (DHB).

Section 95 inquiries Section 95 inquiries are significant and ambitious undertakings, with the terms of reference being set by the Directorate.

A s 95 inquiry allows a District Inspector to inquire as to: (a) Any breach of the Act or regulations, or any breach of duty by any officer or person employed in the hospital or service; and (b) Such other matters as the District Inspector or Director thinks fit to be enquired into respecting any patients, or the management of the hospital or service.

The powers conferred on the District Inspector when conducting an Inquiry to summon witnesses and receive evidence are the same as a Commission of Inquiry by the Commissions of Inquiry Act 1908. A full report is then sent to the Director.

This section is reserved for serious inquiries and requires approval from the Director of Mental Health.

Government inquiry into mental health legislation The New Zealand Government carried out an inquiry into mental health and addiction with a report published in 2018 (He Ara Oranga: Report of the Government Inquiry into Mental Health and Addiction, November 2018), which found that New Zealand’s mental health legislation approach was out of step with New Zealand’s international obligations under the United Nations Conventions, particularly the United Nations Convention on the Rights of Persons with Disabilities (CRPD).

They recommended that the MHA should be repealed and replaced, with a new approach applying human rights, recovery and supported decision-making, in accordance with least restrictive care principles and minimise the use of compulsion, seclusion and restraint.

The Government accepted the recommendation and work is presently underway. This will take time with public consultation to repeal and replace the existing MHA having closed on 28 January 2022.

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Covid-19 Covid-19 abruptly changed the landscape with access to patients and provision of care.

The role of the District Inspector was also impacted in that under Levels 3 and 4 they were not permitted to enter the Units and had to attend on patients by Zoom or telephone.

Everyone had to immediately adjust to the onset of the pandemic and it took a while to put adequate processes in place, to be able to fulfil the obligations of service providers and access to District Inspectors.

Court hearings were affected and judicial hearings were conducted remotely in respect of the Judge and counsel. In Auckland this continues.

Temporary legislative measures2 were put in place which have now been formalised under the recent Amendment Act.

Mental Health (Compulsory Assessment and Treatment) Amendment Act 2021 On 29 October 2021, Parliament passed the Mental Health (Compulsory Assessment and Treatment) Amendment Act 2021 (the Amendment Act) into law.3 The Amendment Act seeks to improve the protection of individuals’ rights and the safety of patients and the public. It also aims to enable the MHA to be applied more effectively. The Amendment Act is an initial step in the wider work programme to fully repeal and replace the MHA and addresses some pressing issues with the current legislation while longer-term work progresses.

It also serves to make permanent the changes that were made as part of the Covid-19 Response (Further Management Measures) Legislation Act 2020.4 Significantly, this has eliminated the indefinite compulsory treatment order under the MHA and requires the courts to review any compulsory treatment order at the end of each 12-month period for the duration of the order.

The Amendment Act has introduced s 6A specifically addressing the use of Audio Visual Links (AVL). It covers assessments and judicial hearings. It allows the use of AVL for assessments if the practitioner considers it not practicable for the person to be physically present and the use of the link is appropriate in the circumstances. It also allows family / whānau or caregivers to be present by audio or video link in s 9 assessment examinations.

In the case of judicial or MHRT hearings, if the Judge or member of the Tribunal considers that it is not practicable for the person to be physically present for

an examination, they can direct use of an AVL link to examine the person under the MHA Act. The Amendment Act has also replaced ‘medical practitioner’ with ‘mental health practitioner’, which includes medical practitioner, nurse practitioner and registered nurse practicing in mental health in certain sections of the Act. Also, ‘medical examination’ has become ‘examination’ and clarifies the responsibilities of duly authorised officers (DAOs) to make arrangements for assessments. It is intended that these changes will improve the administrative efficiency of the existing MHA. To comply with expectations of transparency and reporting about the use of legislation that restricts people’s rights, there will now be a requirement to record in the supporting documentation the rationale for using AVL in patient assessments.

This will require statutory officers, including the DAMHs and District Inspectors, to report the use of AVL assessments to the Director of Mental Health.

The changes in respect of AVL made by the Amendment Act will be incorporated into the Guidelines to the Mental Health (Compulsory Assessment and Treatment) Act 1992 issued in September 2020 and will be available on the Ministry of Health website.

The future of mental health law in New Zealand The area of mental health law is continuing to evolve and is currently transitioning as a result of the response to a rights-based approach with an emphasis on human rights and recovery, care and treatment and least restrictive care principles. There is also a need to give greater emphasis to obligations under Te Tiriti o Waitangi (The Treaty of Waitangi).

Further, an emphasis on acknowledging feedback from people with lived experience, and their families and whānau, on what their experience has been under the MHA. The Amendment Act is an interim solution to the outdated MHA that will be 30 years old on 1 November 2022.

There will be an overhauled and updated Mental Health Act in due course and a new era in Mental Health Law, which is likely to be quite different from the present legislation as the world continues to rapidly change into a virtual universe. * Rosemary L. Thomson is a District Inspector for Mental Health, which she describes as a “watchdog position.” Rosemary is a barrister with over 30 years’ experience in criminal and mental health law. She has extensive experience in forensic criminal matters including fitness to plead and insanity. Rosemary is also a member of the Bar Association’s Membership Committee.

REFERENCES Sestan v Director of Area Mental Health Services Waitemata DHB [2007] 1 NZLR 767 (CA).

COVID-19 Response (Further Management Measures) Legislation Act 2020.

3 The changes came into force on 30 October 2021, except for the changes in relation to the elimination of indefinite treatment orders, which will come into force by order in council, upon royal assent. This was to ensure sufficient time for courts and mental health services to prepare for implementation.

4 Toni Dal Din (Acting Director of Mental Health) correspondence dated 29 October 2021.

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APRIL / MAY 2022

Forensic accountants: an expert update Barbara Relph*

Barristers frequently have recourse to specialists outside their field of endeavour, including forensic accountants. I spoke with Jay Shaw, partner at Grant Thornton New Zealand about changes and new trends in forensic accounting and business valuations.

Jay Shaw’s practice at Grant Thornton focuses on forensic accounting services in a wide range of matters including shareholder disputes, financial investigations, and relationship property proceedings. He has presented expert evidence in the High Court, Family Court and other dispute resolution forums; he is on the Business Valuation Board of the International Valuation Standards Council, a leading independent body in setting valuation standards globally.

What do forensic accountants do?

The work undertaken by New Zealand forensic accountants falls into three general categories. The first, and most common instruction for forensic accountants, is the valuation of shares in unlisted companies or businesses. In the commercial sphere this may be where business partners have triggered the share transfer clauses in an ownership agreement.

In the relationship property field, it might be to establish the value of assets for distribution, or in relation to the compensatory provisions in the Property (Relationships) Act, including s9A concerning separate property.

APRIL / MAY 2022

The second category is quantifying economic loss or lost profits. Shaw explains what that might look like.

“An example would be a manufacturer, relying on another company’s product to make their own product, suffers lost earnings when the third-party product fails. In that case, the court must determine the sum of money required to compensate the loss. This will typically require establishing lost profits, effectively the net impact of lost revenues less saved costs, and this is where the forensic accountant comes in.”

The balance of the work of forensic accountants is the broad range of accounting and financial matters where an expert opinion is needed. This encompasses financial investigations to identify the source and use of funds, establishing the capacity of a business to pay a fine, asset tracing, reconstructing financial records, independent review of transactions, and fraud investigations.

What do lawyers want from forensic accountants?

A recent relationship property survey, conducted

by Grant Thornton in collaboration with the Family Law Section of the NZLS, showed a shift in the core attributes legal practitioners demand from their forensic accountant.

The research showed the most highly prized attribute is a good knowledge of relationship property law. Shaw

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notes this likely applies to other areas of practice.

“It’s critical a forensic accountant understands the legal processes, the use of evidence in court, and the gathering and presenting of evidence. Forensic accountants are not lawyers and should not express opinions on the law, but it is a distinct advantage if a forensic accountant understands the law and legal processes.”

The survey findings show that, increasingly, practitioners value the independence of the forensic accountant. Shaw says that this finding strongly suggests most relationship property lawyers are rightly not interested in a “hired gun” but an expert who will consider the issues on their merits and is mindful of their overriding duty to the court.

Working with a forensic accountant Almost all work requiring the opinion of a forensic accountant originates from lawyers and it is essential to establish a close working relationship with open and ongoing communication. “This ensures both lawyer and accountant have a common understanding of how the matter is proceeding. This will help the lawyer understand the strengths and weaknesses of their case,” says Shaw.

An aspect of communication is the need for lawyers to clearly set out the terms of reference and instructions to the forensic accountant. Shaw notes, however, part of the role of a good forensic accountant can sometimes be helping clarify the questions to be answered. “In certain cases, a forensic accountant will have a greater depth of knowledge of the matter, especially during the early research phase.”

As with other professional relationships, when you work well together, the communication flows easily and client outcomes are improved. If you have a preferred forensic accountant, it is wise to move early to engage them when a new matter arrives in your office.

What’s new for forensic accountants?

A significant reason forensic accountants are busy is the incremental but vast increase in volume of information they are presented with when undertaking instructions. Shaw explains, “When I first started out in this area in the early 2000’s, a ‘large’ assignment may have meant reviewing a dozen or so folders of documents. These days, it is relatively common to review thousands, if not hundreds of thousands, of pages of documents or data.” This change stimulated the need for forensic accountants to invest in data

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analytics technology and investigative tools which assist in assimilating the information and presenting it in a usable format.

Another big change is the increase in international elements to many forensic accounting investigations.

This could entail assets being held outside New Zealand or funds flowing over multiple jurisdictions.

Where this has occurred, it is important to ensure that the expert has the international reach and the tools to deal with it.

Impact of the economic environment We are all very aware of how the economic environment has impacted property valuations in the last two years, but business valuations also require consideration of the general economic and industry risks at the date of valuation.

Shaw says, “The last two years have been a very interesting time to be a business valuer. Business valuation is by its nature a forward-looking exercise and so is uncertain at the best of times, but that uncertainty has been amplified in the last two years.

In the early stages of Covid-19 many businesses were struggling to predict what would happen to their business in the following week or month, let alone the following years, with any degree of confidence.

This in turn made valuation very challenging and many possible scenarios needed to be considered. Thankfully, as the world has responded to the pandemic, for many businesses that uncertainty has now reduced or returned to close to pre-Covid levels which in turn reduces valuation uncertainty.”

Since 2020, there has been an almost unprecedented level of activity in the mergers and acquisitions market.

“There are many possible reasons for this, including pent-up demand, historically low interest rates, and significant government spending in response to Covid-19. When combined with a low interest rate environment which makes business returns more attractive in comparison, this has meant that many buyers have needed to pay more to acquire businesses.

Because prices paid for comparable business also informs the valuation process, this increased activity has a direct impact on valuations. It will be interesting to see how merger and acquisition activity is affected; in terms of prices paid now interest rates appear to be on the path to reverting to pre-Covid levels.” * Barbara Relph is a writer, editor and proof-reader – www.barbararelph.com

APRIL / MAY 2022

Accountability for atrocity crimes Ruth Green, IBA Multimedia Journalist*

Crimes against humanity were first prosecuted at Nuremberg in 1945 but have never been codified in a dedicated global treaty. This article reports on efforts to fill this long-standing gap in international law.

It is now ten years since the start of the war in Syria, which has claimed so many lives. The decadelong conflict stands out, not only for unleashing the largest refugee crisis since the First World War, but for underlining repeated failures by the international community to hold those in power to account.

in 2013 and submitted a final text of draft articles due to the General Assembly. Progress on the treaty was stalled in 2020 due to the pandemic, but in-person discussions about the treaty’s framework have resumed at the UN – the third time the proposals have been presented to the Sixth Committee.

Fighting impunity remains a global challenge. The crises facing the Rohingya, the Yazidis, the Uighurs and other vulnerable communities across the world are grave reminders that the need to end impunity for crimes against humanity is greater now than ever. That the UN’s Sixth Committee met in October at the General Assembly to debate the latest draft proposal for a long-awaited treaty on crimes against humanity must be welcomed.

Despite the outright objections of three ‘recalcitrant’ states to establishing a treaty at all, Sadat says the latest discussions have given hope that there’s strong political will among the majority of states to push ahead and engage in a structured process towards making the treaty a reality. "There were more interventions than we've ever seen – very similar to 2019," she says.

‘A lot of states were very enthusiastic and speaking in concert about the progress that they hope to be able to make. You could hear some evident frustration on the part of those wishing to move forward that there were a handful of states really unwilling to create a real process to take the draft forward. That's where the Sixth Committee is now and they are in informal consultations.

The idea for the treaty was conceived in 2008 and the 13-year-long project has been spearheaded by Leila Sadat, the James Carr Professor of International Criminal Law, University of Washington. The International Law Commission (ILC) took on the project

APRIL / MAY 2022

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Sadat says a dedicated treaty on crimes against humanity would fill a significant ‘accountability gap’ in international law and put an end to what she refers to as ‘the atrocity cascade’ that has engulfed countries like Syria, where human rights violations have descended into atrocity crimes. "Think of Syria, where the government is firing on protesters," says Sadat. "It's locking people up. There's torture. It’s just a terrible human rights situation and then that human rights situation slips in peacetime to a situation of crimes against humanity, where it becomes widespread or systematic, where the attacks are so frequent that the entire civilian population, or segments of the civilian population, are being targeted. Then those individuals being targeted will often take up arms and you have a degradation into civil war and then pockets of genocide."

"These are such horrible crimes and they should be binding on and within states and not only in international humanitarian law." - Justice Richard

Goldstone, member of Crimes Against Humanity Initiative Steering Committee The International Criminal Court (ICC) prosecutes crimes against humanity as well as war crimes and genocide. As Syria is not party to the Rome Statute, the ICC does not have jurisdiction to investigate the situation there. To date, the Court has not received a UN Security Council referral permitting it to investigate the allegations. Situations like these only serve to strengthen the moral argument for codifying a separate convention on crimes against humanity to hold states to account, says Justice Richard Goldstone, former Chief Prosecutor of the UN International Criminal Tribunal for the former Yugoslavia (ICTY) and Honorary President of the IBA’s Human Rights Institute. "These are such horrible crimes and they should be binding on and within states and not only in international humanitarian law," says Goldstone, who also sits on the steering committee for the initiative.

He’s in no doubt that a separate convention is sorely needed. "Crimes against humanity are the only serious

The International Criminal Court, the Hague, Netherlands

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war crimes that are not governed by a convention", he says. "War crimes against humanity are defined in the Rome Statute and so the question has been why do you need a separate convention? But the reason obviously is that not all member states of the United Nations are member states of the Rome Statute. In any event, the Rome Statute doesn't provide for mutual legal assistance between states."

Sadat, who was recently reappointed as a special adviser on crimes against humanity to the ICC, says a treaty on crimes against humanity would finally give states the necessary tools to prevent, as well as punish, atrocity crimes regardless of where and when they take place. "We've seen that the Convention on Torture has been the basis for very important cases brought before the International Court of Justice", she says. "If you're trying to empower national jurisdictions to be able to do the job that we know the ICC and ad hoc tribunals can do – and it’s a big job – everybody has to be all hands on deck. We need states as a core part of that process. We have to give them the right tools."

Mutual obligation and cooperation A treaty would also help states work together to fight crimes against humanity that transcend national borders, says Baroness Christine Van den Wyngaert, who is a member of the steering committee. "Think for example of crimes committed by groups such as Boko Haram and al-Shabab across the territories of various African States", says Van den Wyngaert, who currently serves as a judge at the Kosovo Specialist Chambers and previously served at the ICTY, the ICC and as an ad hoc judge at the International Court of Justice (ICJ).

She points to the case of Anwar Raslan, the former Syrian security officer on trial for war crimes and crimes against humanity at a small regional court in the southwest German town of Koblenz. Van den Wyngaert says a treaty on crimes against humanity would empower more states to seek redress against individuals who reside in their jurisdiction but have committed egregious crimes in other parts of the world.

"In view of the – sadly enough – almost permanent refugee crisis worldwide, it is important for states to be able to act against people who claim refugee status but who are in fact perpetrators of the most serious atrocities, as many countries in Europe have been experiencing, including Germany, France and Sweden", she says. "Without jurisdiction, states risk becoming safe havens for these 'refugees'." She says the proposed treaty would help ‘close this gap’.

Such a treaty would significantly bolster domestic prosecutions, agrees Shannon Raj Singh, Treasurer of the IBA War Crimes Committee and a member of Guernica 37 International Justice Chambers. "Under Article 6 of the draft, State Parties would be required to ensure that crimes against humanity are criminalised under their domestic criminal legal systems, using a definition set forth in the Convention, which is based on the definition articulated in the Rome Statute," she

APRIL / MAY 2022

says. "That would go a long way towards ensuring that crimes against humanity can be prosecuted in domestic courts, and also that they are consistent with the existing international understanding of the crime."

Raj Singh has been following the progress of the ILC’s proposals carefully, having been commissioned in 2018 to serve as special rapporteur for the War Crimes Committee on the ILC’s Draft Articles on Crimes Against Humanity. She led the drafting of the Committee’s written submission proposing recommendations for the draft text to the ILC. She says the treaty would strengthen the international justice system’s capacity to hold perpetrators of atrocity crimes accountable. "By bolstering domestic prosecutions, you strengthen the entire international framework around atrocity crimes," she says. "The ICC has limited capacity and has always been intended to be a court of last resort, so state courts should really be the first and most common fora for these types of prosecutions."

incredibly helpful to the efforts to break the cycle of impunity because you could then avoid questions like statutes of limitation and they did avoid amnesties and pardons that made it impossible to pursue crimes against humanity. But crimes against humanity is a term of art in international human rights law, so you still need at the UN today a treaty that gives this definition a treaty basis. That’s why I think it's important to have that."

"It’s clear that international law recognises crimes against humanity in peacetime, as well as in time of armed conflict. Would having a crimes against humanity treaty change that?

It might. It shouldn't be necessary legally for that to happen, but it might have that impact." - William Schabas, member, Steering Committee

The concept of crimes against humanity has already proved crucial to securing the transition of many Latin American nations to democracy, says Juan Méndez, a member of the steering committee and former UN special rapporteur on torture. "Even long after the transition to democracy in Latin America the notion of crimes against humanity has been very useful to break the cycle of impunity for crimes committed by military dictatorships," he says.

What’s more, having an international treaty on crimes against humanity could help dispel the long-held misconception among some activists and victims that genocide should be regarded as a more serious crime.

"Crimes against humanity in its earlier configuration at the time of Nuremberg and the years that followed were confined to acts associated with an armed conflict," says William Schabas, who also sits on the steering committee.

As many countries in the region continue to contend with democratic backsliding, Méndez says codifying these crimes under an international treaty would make it much easier for such heinous acts to be investigated and prosecuted in future. "The judiciaries of the newly democratic Latin American countries were grappling with what we mean by crimes against humanity," he says. "We had some good language from decisions by international bodies like the Inter-American Court of Human Rights, defining crimes against humanity generally and also establishing the legal effects of something being a crime against humanity. That was

"Genocide was really the only peacetime international crime we had for many decades, and I think that contributed a great deal to its elevated status," says Schabas, who chaired the UN’s Independent Commission of Inquiry into the Gaza war and today is a professor at both Middlesex University, London and Leiden University. "Then it got into the public consciousness about it being this highly elevated crime with special status and it’s been very difficult to roll back on that. It’s clear that international law recognises crimes against humanity in peacetime, as well as in time of armed conflict. Would having a crimes against humanity treaty change that? It might. It shouldn't be necessary legally for that to happen, but it might have that impact."

The ICJ does not have jurisdiction to try individuals accused of war crimes or crimes against humanity.

Article IX of the Genocide Convention grants the ICJ jurisdiction in all disputes related to the Convention’s interpretation, application and fulfilment. This includes state responsibility. "This is what allowed Bosnia to proceed against Serbia and, more recently, Gambia against Myanmar," says Van den Wyngaert. "If we would have a proper enforceable treaty on crimes against humanity, this possibility would exist for those crimes as well, and the efforts to 'upgrade' some crimes against humanity to genocide, for mere jurisdictional reasons, would stop."

Codifying crimes Crimes against humanity include murder, extermination, enslavement and torture, or the crime of persecution, deportation or forced displacement outside of armed conflict and any other inhumane or sexually violent acts committed against any civilian population. Some of these crimes – such as apartheid, torture and enforced disappearance – are already codified in international treaties, but the majority are not.

Schabas says the breadth of these crimes and what they include is one reason why it’s been so difficult to gain consensus on an international treaty framework to date. "When states look at the definition of crimes against humanity, it's much broader and the boundaries are not as predictable as the boundaries, for example, of the crime of genocide or the crime of apartheid," he says. "I think that's the difficulty with getting it through. We’ve got this far, which is already a phenomenal accomplishment to get to this stage.

First, the work that we, the steering committee, did under Leila Sadat’s guidance and the work that was undertaken by the International Law Commission.

It's a great innovation. It’s filling a very important gap and that's why it has to be done, but it's also why it's proving not to be straightforward and simple."

As debate continues within the Sixth Committee on specific aspects of the ILC’s draft articles and necessary next steps, both Schabas and Méndez agree that the draft proposals in their current form would make for a treaty that will have lasting resonance. "I think the ILC draft is good enough because the other temptation would be to water it down so much to get a good level of participation," says Méndez. "The present draft is very self-conscious of those tendencies and is well worth supporting. If approved, it's going to make a difference."

“The draft presents an opportunity for the international community to coalesce around a common denominator, and demonstrate that despite these trends, the gravity of atrocity crimes is severe enough to warrant collective action,” - Shannon Raj Singh - Treasurer, IBA War Crimes Committee Mark Ellis, IBA Executive Director, believes the treaty can’t come soon enough. "It has been more than 70 years since Nuremberg and while other atrocity crimes such as genocide, war crimes and torture have

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been given the heightened level of legal protection offered by an international treaty, the mechanisms to prosecute crimes against humanity remain elusive," he says. "There is no reason to delay the consideration and passage of the draft articles which are modelled on provisions that states have already accepted from widely adhered to treaties."

Raj Singh agrees that the time is right for the ILC’s proposals to be enshrined in international law: "We are in the midst of major democratic backsliding in jurisdictions across the globe, there has been a surge in populism and authoritarianism, and resistance to multilateralism is high," she says. "The draft Convention on the Prevention and Punishment of Crimes Against Humanity presents an opportunity for the international community to coalesce around a common denominator, and demonstrate that despite these trends, the gravity of atrocity crimes is severe enough to warrant collective action."

Hans Corell, former Co-Chair of the IBA Human Rights Institute, also sits on the steering committee.

As former Legal Counsel of the UN, he knows all too well how drawn-out these drafting and negotiation processes can be. He believes a dedicated convention would succeed in regulating ‘all elements related to interstate cooperation in fighting these crimes’ and says the treaty’s progress has been nothing short of ‘extraordinary’.

Sadat is encouraged by the fact that so many states have been willing to engage with the ILC’s latest draft articles. ‘Overwhelmingly states were saying that we need to move forward and we need a clear timeline’, she says. ‘Crimes against humanity are happening right now and that really was the point of the Myanmar intervention and the Haitian intervention and several others, who gave very moving testimonials as to how crimes against humanity can devastate a country for centuries.’

This article originally appeared in IBA Global Insight, December 2021 – January 2022, published by the International Bar Association, London, UK. © International Bar Association. * Ruth Green is Multimedia Journalist at the IBA and can be contacted at ruth.green@int-bar.org

APRIL / MAY 2022

Leveraging the effects of the pandemic - Insights of a legal intern Tayler Berridge-Smith* This content was provided by LexisNexis.

The transition from law school to legal practise is never seamless. It is an experience which is shadowed by anxiety, stress, and imposter syndrome.

But it is also an exciting transition, which brings with it so many opportunities for growth, learning, and development - both for graduates, and the wider legal industry.

The malleability and fresh perspective offered by graduates is extremely beneficial, especially when learning to adapt to the impacts of the unprecedented Covid-19 pandemic.

Students are used to learning and adapting – they have spent the last 4 years (at least) soaking in and applying information. They have learned to excel in online learning, which requires initiative, perseverance, and commitment. While working independently at home, students have also had to discover how to stay connected and supported.

Due to the continuing effects of the pandemic, many barristers are now working flexibly and taking advantage of virtual communication. Graduates therefore bring a unique perspective to the evolving legal industry, and if you take the time to tap into their knowledge and experience, you may revolutionise your legal practice.

Barristers need to make the most of their time, effort, and energy, in the Covid-19 landscape. The following paragraphs may offer some guidance for them.

Stay connected Staying in touch is critical, whether you are interacting with solicitors, clients, or junior barristers. In my own experience completing my law degree online and working virtually as a law clerk, regular and consistent communication has been key to my productivity.

Take advantage of the technology which is available to you. Utilising emails, skype, or zoom for quick messages and regular meetings helps you stay engaged and protects you from the isolation that can come from being a barrister-sole working at home.

If you are contacted, be sure to reply as quickly as possible. While in the pre-pandemic world, it might have been necessary to prioritise your workload over replying to an email, it is more important than ever to

APRIL / MAY 2022

be prompt and connected. It is crucial that you engage effectively with people in your legal practice, especially when you have less face-to-face contact with clients and colleagues.

As barristers, you are used to operating independently, but the impacts of this can be exacerbated by the pandemic. It is important to use technology to hear people’s voices and see their faces, not only for the accuracy of the conversation, but for your own social support needs also.

Ask yourself: Is it the most effective option, or is it just tradition?

Flexible working provides a unique opportunity to reevaluate how you carry out your work and how you organise your resources.

It is likely that working from home gives you limited access to printing and storing physical documents, but it has also inspired you to be more tech savvy and to utilise digital tools.

There are a raft of technology tools and platforms available to assist in the transition to operating in a technically driven world. Throughout university we are exposed to the major suppliers of online technology.

However I personally recommend LexisNexis due to the ease of navigation, introductory tools such as Practical Guidance, and the speed and regularity with which LexisNexis updates their database.

More importantly, LexisNexis offers very supportive and interactive training programmes, which are delivered either through webinars, online portals, tailormade one-on-one either in person or online, or in video form on their Knowledge Network, which means any questions you have can be answered quickly and in a style that works for you.

Be open to feedback and advice Everyone is going through this pandemic together, which means everyone is learning and adapting together. You never know what systems and protocols other people have in place to make their lives easier and to take advantage of flexible working. Those systems could be equally beneficial for you, and you get to skip the trial and error that they might have experienced.

My experience working with LexisNexis has shown

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me the importance of accepting, and giving, feedback.

I have grown as an intern, and as a future lawyer, by accepting and applying every bit of guidance that was offered to me. The teams at LexisNexis have also been very open to making changes in response to my feedback and fresh perspective, so I have tangible evidence of how this willingness to learn can help improve internal practices.

If you work closely with a solicitor, ask them what works for them and their firm, and how they like to collaborate. This can give you some different ideas about how to operate.

Once you have completed work with a client, be sure to get their feedback and find out what they enjoyed, or would have changed, about your service – particularly within the Covid-19 landscape. This will give you a better insight into what you need to improve and will enable you to successfully implement solutions.

If you work with junior barristers, seek out their recommendations and advice. They bring a unique, more objective perspective to your practice, and may have some helpful tips and tricks.

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In conclusion, we are all coping with the realities of being “pandemic lawyers” and delivering the trade we love in new ways. As I have outlined, make an active effort to stay connected, consider ways in which you could revolutionise your workstyle, and never be afraid to ask for advice or feedback.

I am very excited to continue my legal career, and to take full advantage of legal technology, both in response to the pandemic, and ongoing. I am so grateful for the opportunity to have gone behind the scenes of LexisNexis to understand how they continue to respond to the evolving demands of the legal industry and drive forward in supporting the “Rule of Law”. *Tayler Berridge-Smith, LexisNexis Summer Clerk, 2021 Disclaimer- This article is presented by LexisNexis on behalf of the author. The opinions may not represent the opinions of LexisNexis. This document is for educational purposes only.

APRIL / MAY 2022

A survival story:

How did your pandemic experience compare to the survey?

Barbara Relph* You would be hard pressed to escape some impact from Covid-19 over the last two years, but it seems legal practitioners are quite a hardy bunch.

The world has been in turmoil with court systems disrupted, businesses foundering or booming, and families flailing, but you kept bending and flexing to meet the evolving needs of your clients as you worked within Government restrictions. You managed changing workloads and adapted to technological challenges; you kept trucking on with added workplace stress while juggling your own changing personal life.

Tech problems In terms of managing new technology requirements, it was interesting to note that while 67% of respondents had no trouble managing the new technology, around one quarter reported difficulty signing agreements remotely during lockdowns. This can be attributed to technical difficulties in a challenging environment where technical support may have been limited from either side, noting this method does rely on clients having access to the necessary technology.

Every two years Grant Thornton and the Family Law Section of the NZLS conduct a broad ranging survey to identify trends and challenges in the practice of family law. The 2021 survey, recently released, was necessarily focused on the effect and impacts of Covid-19. While not focused on barristerial practice, many respondents were barristers, and many of the findings in the Relationship Property Survey covering the two years of the pandemic to date can be extrapolated into relevant guidance for wider practice.

Effect of volatile market conditions The survey revealed a volatile housing and investment market, resulting from economic conditions related to Covid-19. This created headaches, with valuations quickly becoming outdated. Valuers and the small pool of forensic accountants became increasingly busy, as evidenced by reports taking longer to be produced.

From a family law perspective, increasing housing costs meant some unhappy couples with a single large asset – the family home – could no longer afford two separate homes. A significant 20% of clients resiled from their decision to separate at all, citing the impact of Covid-19.

Despite valuation issues, rates of settlement increased during the period, most likely to avoid the longer term financial effects of Covid-19. The pandemic provided the necessary motivation to settle, and skyrocketing housing prices may have translated into urgency in terms of settlement, along with a desire for certainty and control of at least this one aspect of life. The further impetus of court delays for all but urgent applications offered couples the choice to wait it out or settle, with many couples settling in preference.

APRIL / MAY 2022

Managing workload The rising number of separations due to the impact of Covid-19 is well documented worldwide, and New Zealand is set to be no exception. Lawyers already report increased workload from the previous survey, and predictions are that this will rise further in the next two years. This will be true in many other areas of law following changes and challenges experienced in this period.

Many practitioners reported greater discounting of fees, despite a heavier workload. This can largely be attributed to the effects of Covid-19 such as cashflow due to business downturn and has likely been experienced in other practice areas. This trend is likely to continue with current and anticipated inflation levels leading to greater outgoings, however hourly rates have not increased significantly when compared to the previous survey period.

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Identifying changes in stress levels Relevant to all legal practitioners, the 2021 survey introduced an interesting set of questions aimed at identifying changes in the levels of stress experienced by practitioners and how this stress is addressed.

This section was included primarily because of the significant changes in the way law is practiced due to the impact of Covid-19 throughout the survey period.

Stress levels will be further canvassed in future surveys due to the large number of practitioners affected and general concern that many practitioners are continuing to work with unmanageable stress.

A majority – 56% of respondents – reported an increase in their stress levels over the two year period. All survey participants were asked whether they had accessed any resources to manage their stress, not just those reporting increased stress. A heartening 24% of respondents received professional supervision and 15% sought counselling. A further 11% had recourse to the Law Society’s friends panel to assist.

The Relationship Property Survey team The team responsible for this developing the survey comprised forensic accountant and partner at Grant

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Thornton Jay Shaw, Family Law Section Manager Kath Moran, and barristers Kirsty Swadling and Caroline Hickman. Independent market research organisation Ipsos was engaged to conduct the fieldwork. Of a possible population pool of approximately 2,000, a total of 275 practitioners responded. *Barbara Relph is a writer, editor and proof-reader. She is the author of Uncoupling, an insider’s guide to separation in New Zealand and was engaged by Grant Thornton to write the 2021 Relationship Property Survey Report. www.barbararelph.com

APRIL / MAY 2022

Beyond a growth mindset - the benefit mindset Synergy Health This article has been provided by MAS. We live in extraordinary times where everyone is facing complex challenges they haven’t faced before. From coronavirus to climate change, mental health to systemic injustice, what’s clear is that no individual or institution can transform these issues on their own.

Our ability to respond – and break through to a world that works for all life – requires something more than everyone’s best personal efforts.

Bringing about meaningful change requires us to build a sense of a “we”, that we can align a diversity of contributions and become partners in the wellbeing of all. And our ability to actualise this possibility requires a profound shift in mindset: towards what we call a benefit mindset.

What is a benefit mindset?

A benefit mindset builds on a growth mindset, when we understand that our abilities can be developed – and we also understand we can transform towards a more caring, inclusive and interdependent perspective.

It is called “benefit” mindset because it is concerned with the life-long process of learning how we can be the transformation and realise our unique potential in a way that serves the wellbeing of all.

Developed by Ash Buchanan in collaboration with a global community of contributors, the benefit mindset is grounded in the understanding that fulfilling our potential is about more than how smart, driven or growth-oriented

APRIL / MAY 2022

we are. More completely, it is about how well we are able to transform how we come to understand our place in the world, compassionately attend to our individual and collective shadows, and become partners in the wellbeing of all people and all living beings.

While a growth mindset has many advantages over a fixed mindset, what truly makes us thrive is our capacity to realise our potential in a way that nurtures our uniqueness and serves the wellbeing, not only of humans, but the entire community of life.

Why it matters - me and we In a benefit mindset, we understand we are not separate individuals going it alone. We are interdependent beings who belong to a massive global ecosystem – the community of life – and every one of us has a role to play in creating healthy conditions on the planet, no matter our interests, passions or expertise.

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This is when compassionate actions, such as an act of kindness, ripple out to benefit others, and they also benefit us in terms of our health and wellbeing. In this way, acting out of a concern for all life gives rise to a virtuous cycle of mutual benefit and creates new possibilities for healing and transformation in ourselves and the planet.

Civilization Renewal Awareness of our interdependency awakens us into a caring relationship with all people and the living Earth community. It also awakens us into the realisation that many of the things we consider to be normal and healthy in today’s society are actually destructive and unhealthy, causing deep harms for ourselves, others and the world.

“It really boils down to this: that all life is interrelated. We are all caught in an inescapable network of mutuality, tied into a single garment of destiny. Whatever affects one directly, affects all indirectly. We are made to live together because of the interrelated structure of reality.” — Martin Luther King Jr Therefore, more than believing we can grow, it is also important we take responsibility for transforming how we come to understand our place in the world, and realise our potential in a way that affirms life and supports others with doing the same.

Everyone has something to contribute While we have the urgent call to respond to issues such as climate change, systemic injustice and socioeconomic disadvantage, it’s now up to all of us – schools, businesses, governments and the general public – to show up and make a contribution that serves the wellbeing of all.

“You cannot get through a single day without having an impact on the world around you.

What you do makes a difference, and you have to decide what kind of difference you want to make.” – Jane Goodall This is not a task for hero leaders, smart scientists, or a few enlightened ones. It is a responsibility for every human being.

Everyone has a role to play The Ripple Effect Because all life is interrelated, and our wellbeing is inextricably connected, when we act for the benefit of others and society as a whole, we can create a ripple effect.

“Not only is it the case that happy people are more willing to help others, but as I generally point out, helping others is the best way to help yourself, the best way to promote your own happiness. It is you, yourself, who will receive the benefit.” – Dalai Lama

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“What if we used this disruption as an opportunity to let go of everything that isn’t essential in our life, in our work, and in our institutional routines? How might we reimagine how we live and work together? How might we reimagine the basic structures of our civilization? … That’s the conversation we need to have now. With our circles of friends. With our families. With our organizations and communities.”

– Otto Scharmer Thus, rather than seeing today's disruption as a time to bunker down only to return to the same old ways of living and working, we can use this time to reflect on who we are and who we want to be as a society, and choose to transform ourselves and the world by living into the possibility of profound civilization renewal.

A time of profound awakening These are challenging times, yet they can also be times that awaken us to who we really are and who we want to be as a society.

“When in history has humanity had such a shared sense of purpose? And when have we been so aware of our fundamental interconnectedness at every level? This is a moment not to be wasted by any of us.”

– Paul Atkins Today’s disruption presents us with an unprecedented opportunity to come together and be of benefit like never before. Let’s use this opportunity to embody our best human qualities and contribute as awake, engaged and responseable members of the living Earth community. * Source: Benefit Mindset (http://www.benefitmindset.com)

APRIL / MAY 2022

How to cope with distressing world news Synergy Health*

This article has been provided by MAS. From the devastating impacts of climate injustice to the war in Ukraine to the ongoing uncertainty around the latest Covid-19 variant, there’s a lot going on that is leaving many of us feeling distressed, anxious, angry, fearful, numb, and somewhat powerless. Feeling overloaded by the occurrence of such heavy events around the world is an understandable and normal human response. What's happening around the world is distressing.

Not only is war a terrifying thing to read about let alone be caught up in, but it’s also throwing many people back into an intense state of anxiety and sense of existential threat they have been experiencing since the pandemic began, even though they are of course entirely different situations.

Thoughts of catastrophe are understandable when we think about any type of crisis. But if you understand how the flow of information about the conflict is impacting you mentally, there are steps you can take to protect your mental health and maintain a sense of peace.

Here are some ways to help manage the anxiety and get on with ordinary life as much as possible, while in no way diminishing the reality of what’s going on.

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Know your limits Reading the news to understand what’s happening in the world is an important part of being an informed citizen.

But news headlines, meant to grab your attention, can do more to incite fear than offer information. The continuous flow of information can be overwhelming.

When you pick a daily time frame to catch up with the news, use that time to read and listen to information from highly credible, ethical, and objective sources.

If you’re not sure how to tell if you’re inundated with the news, take stock of the impact it’s having on you.

It is important to be honest with yourself, and honour yourself as it relates to knowing what the threshold of your mental health is. Ask yourself: •

What are my limits?

•

How much news is too much news for me?

Avoid doom scrolling Experts agree that if you're feeling anxious, avoid doom scrolling - the act of spending an excessive amount of time consuming negative news. It's something we often

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do when faced with uncertainty, but instead of filling in the gaps with useful information, we can end up catastrophising.

Limiting your exposure extends to social media. The endless scrolling through stories and infographics while being inundated with virtual noise can create a negative atmosphere of panic and doom. Be conscious of where you get your information: rely on trusted news sources, focus on facts rather than alarmist speculation, don't engage with graphic content. Be wary of sensationalised posts and extreme language designed to manipulate your emotions.

Another tip: Avoid hunting for evidence to support your worst fears. You might find yourself looking for evidence to support your worst thoughts and feelings the most dramatic news sources or the most harrowing images. Try to avoid going down those rabbit holes, remind yourself about the here and now.

Take breaks from consuming news about the conflict/tragedy Witnessing life-threatening and traumatic events, even when you’re witnessing them second-hand can produce trauma responses. Try and monitor the level of images and stories that you’re allowing in, especially when children are in the house. There’s a range of impacts that current events can have and are having on us as a society.

This doesn't always lead to anxiety, but there are some key ways to avoid it: Eat well, get outside, put your phone down, connect with people, rest. These are all pretty basic pieces of advice, but when you're stressed, they can be difficult to do consistently. Similar to the self-care needed when reports of the Covid-19 pandemic were/are unending, set your limits and stick to them.

Protecting your mental health The news never stops. Information is disseminated into the atmosphere all around us. If you decide to take a break from the headlines and the news, what’s next?

How can you replace a negative hole with something positive and helpful?

Replace doom scrolling with time outdoors Sign out of Facebook, Twitter, Telegram, and Instagram.

Take a walk outside and enjoy nature. Being in the outdoors can reduce stress, anxiety, and depression.

Breathing in fresh air has a calming effect and can allow you to centre yourself and stay in the moment.

Yes, you may be struggling with fear; however, acknowledging those feelings, removing media triggers, and relaxing in the great outdoors can be just the helpful remedy you need.

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Embrace the mundane List the anxious, unhelpful thoughts you’re having about the conflict/tragedy and replace them with everyday domestic ones like “I need to get groceries and make a meal plan”, or “I need to help my kids with their homework”. Understand that you can’t stop yourself from feeling anxious about certain events, but you can have a list of things that are more pleasant, more mundane, or less stressful that you can bring to mind when you start to feel overwhelmed.

Spend time with loved ones and practice gratitude Although the possibility of conflict is disturbing, be thankful that you live in a generally safe environment.

You have access to food, shelter, and medical care if needed. It can help to express gratitude for the basic things that we take for granted. Practicing gratitude isn’t just a fluffy feel-good activity, it’s actually a way of training your attention. What you focus on is what you feel much of the time so direct your attention more strategically.

You can also spend time with your loved ones. Enjoy their company, whether by phone or in person. Talk with them about how you are processing what is going on in the world and give them the space to share their thoughts. By allowing someone else to feel heard and validated, it can help you feel less alone in your feelings.

Maintain your sleep and exercise routine Try to go to bed and wake up at a regular time. Avoid too much caffeine and alcohol, which may affect your sleep. Any exercise you can do is a really great way of managing your anxiety response. Plus, when other elements of life feel uncertain, you can create a sense of continuity and rhythm with helpful routines.

This isn't about being rigid but creating a sense of predictability when other things feel up in the air.

Eat properly and hydrate, even if you don’t feel like it Your body signals get messed up when you’re anxious, so you have to artificially take over and think about these routines. Eat at regular intervals whether you have an appetite or not, and if you don’t drink enough your body becomes distressed. Meet your basic needs, or things feel

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much worse. When we are feeling stressed and stretched, often it’s the small things that fuel and replenish us that are the first to get bumped off the priority list. This is a time to prioritise those tiny habits you have control over to help maintain your energy and reserves.

organisations that are doing relief work and environmental protection work. Research shows that helping others (people, planet, and animals) provides a sense of well-being.

Practice slower breathing

There is no one-size-fits-all approach to coping with global disasters because they impact everyone differently.

If you or someone you love is feeling debilitated by the events unfolding in the Ukraine, Afghanistan, or in other parts of the world consider talking to a licensed mental health professional. They can offer personalised strategies for managing your anxiety surrounding the crisis.

When we get anxious or flustered or that sympathetic nervous system (‘fight or flight’) response kicks in, our breathing becomes more rapid and shallow. When we slow down our breathing, it cues the parasympathetic nervous system (‘rest and digest’) response. Any slow breathing technique can have a massive impact in terms of slowing the heart rate down and calming the body and mind.

Tap into meditation and mindfulness Mindfulness activities, including meditation, or prayer if you are a spiritual person, are powerful tools. They can help take the focus from expecting the worst and get your mind to a place of peace.

A mindfulness practice can help you feel more rooted in the present moment, acknowledging that while there is no way to control what happens in the future, you are safe right now. The practice of taking a slow deep breath and bringing yourself back to the present when emotions intensify can be a huge help as you attempt to process conflict taking place overseas.

And if it applies to your belief system, prayer can serve a similar purpose and allow you to feel a bit more grounded.

From a spiritual perspective, prayer and relying on one’s faith is very important during this time. It can actually help to relieve some of the anxiety and depression one may feel.

Regardless of your beliefs, taking the time to be still, focus on your breathing and calm your mind can be helpful practices. Mindfulness is really about being in the present moment rather than the future-focused anxious thoughts in your mind.

Reach out and support those affected We want to contribute to the solutions and ease the suffering we are witnessing all around us. We can do this by finding ways to offer support. For example, if you're feeling overwhelmed by the impact of climate change, you can lessen your own carbon footprint, change your investments to more ethical ones, sign petitions and lobby the government for bolder climate action. If you're feeling distressed about the war in Ukraine, showing compassion to people who are impacted takes the focus off of yourself and puts it onto others.

Offer moral support to Ukrainian friends who may be worried about their family members. Other friends who have lived through similar invasions may be dealing with PTSD. Members of the military and their family members may be dealing with fears of deployment.

Offering a listening ear can make a world of difference to someone who is struggling.

You can also offer financial support through reputable

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Talk to a mental health professional

The difficulties of the Covid-19 pandemic and ongoing climate change have stretched our minds and bodies.

Processing another potential crisis may feel daunting and overwhelming. Having methods to handle the fear and emotions that come from dealing with the crisis can help you function and cope in a time of uncertainty.

About MAS The following information is provided

by MAS, one of our member benefit partners. The NZBA does not recommend or provide information on financial or insurance products.

MAS is a membership-based insurance and investment company that’s been supporting New Zealand professionals for the past hundred years.

MAS offers a wide range of general insurance products such as house, contents, and car insurance; life insurance and income protection; and responsibly invested KiwiSaver funds.

Founded by doctors for doctors in 1921, MAS now welcomes New Zealanders from all walks of life.

MAS is a mutual, which means we are owned by our Members and we don’t have to generate big profits for overseas shareholders. And because our advisers are paid a salary with no commissions, you can be sure they have your best interests at heart.

As you’d expect from a company set up by doctors, we’re all about serving our community. Our view is that when New Zealand communities thrive, we thrive too.

Our purpose is to inspire a healthier Aotearoa, and it underpins everything we do. Like establishing the MAS Foundation, a philanthropic organisation working to make a difference to the health and wellbeing of our people, particularly communities experiencing the most inequity.

Our relationship with NZBA has gone from strength to strength, and we’re looking forward to what the future holds. If you want to find out more about how we can help you, please give us a call on 0800 800 627, visit www.mas.co.nz or email MAS Adviser Peter Lycett (peter.lycett@mas.co.nz).

The above article, and other articles provided for At The Bar by MAS can be found on Aki, the MAS Wellbeing Portal. All NZ Bar members have free access to Aki. For more information on how to access Aki, visit our website at www.nzbar.org.nz/resources/mas-wellbeing-portal.

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Mindfulness:

An essential tool for the modern lawyer Cathyrn Urquhart* Your mind is like a snowglobe…keep shaking it and there will always be snow or glitter floating around and preventing you from thinking clearly. Put down the snow-globe for 1-2 minutes and the snowflakes settle, the liquid becomes clear and you can better see the object at the centre. The same can happen with your mind and mindfulness is the method to settle that snow.

Mark Twain said that “Life does not consist mainly, or even largely of facts and happening. It consists mainly of the thoughts that are forever flowing through one’s head”. Don’t ask me how but researchers have calculated that people have up to 50,000 thoughts a day!! I’m pretty sure lawyers are to the far right of any statistical bell-curve with factors such as working in an adversarial system with tight deadlines, demanding clients and (many) recording time in six minute units.

There is no shortage of research to show that lawyers are not only more stressed and at risk of experiencing mental health issues than the general population but also more than other professionals. And of these 50,000 thoughts, how many of them actually relate to what you are doing and how many are ruminating about the past or worrying about the future.

Mindfulness is not magic. Nor is it about making thoughts and feelings disappear i.e., trying to achieve a “blank mind”. But it is a proven method to calm the mind and create significant improvements for the individual and teams. Plus, it can be practised in many ways from extended practices to micropractices and

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other options in between and so fit around/within a busy life. Dare I say that six minute practices might work well for lawyers.

Mindfulness is about being aware: “(it) means paying attention to what’s happening in the present moment in the mind, body and external environment, with an attitude of curiosity and kindness” (Mindful Nations, UK Report).

The opposite of mindfulness is being on autopilot where your attention is in the past or the future, you are distracted, less aware of your surroundings and tend to act based on habit, patterns and assumptions.

Our brain loves to switch off and tune in to auto-pilot to save energy but this is not a good way for us to meander through life and certainly doesn’t seem to be the right way to be spending our work day.

I love this quote: “Between stimulus and response, there is a space. In that space is our power to choose our response. In our response, lies our growth and our freedom” (Victor Frankel’s teachings summarised by Steve Covey).

Mindfulness is one way to create a space or more space between stimulus and response. For example, the aggressive email from the other side or stressed client is the stimulus. Without space, you fire off a reply in the moment that is influenced by emotion or it’s your auto-pilot response. Need more examples? The staff member who has not followed instructions, the IT issue that caused a document problem, the unforeseen delay, the overflowing email inbox or X unreturned phone calls. These triggers can’t be avoided but we can create space to manage our response.

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There is a world of science behind all of this. A threat, real or imagined, physical or social, fires off our amygdala putting us into fight or flight response.

All kinds of changes happen within our body and brain including a flood of hormones like cortisol and adrenaline. One major effect is the disconnect that happens between parts of the brain i.e., our Salience Network (which contains the amygdala) and our PreFrontal Cortex or Executive Network. This means our emotional responses take over and we decrease our ability to respond rationally. And whilst this worked for our cavemen ancestors to respond to very real physical danger, they were only in this state, i.e., acute stress for certain periods of time switching back to the Parasympathetic System, i.e., rest and digest state after the danger was over. Cortisol levels would drop and things would calm down. But if our modern world is triggering our fight/flight response for extended periods (or all day), then our mind and bodies are in a constant state of arousal and we are dealing with chronic stress.

Mindfulness allows us to move out of the fight/flight state and to calm the mind and body. I like to think of it as a mini-vacation for the mind during a busy day.

Short, regular practices can make a world of difference.

And there are many ways to bring mindfulness into the office and your workday. I can’t “teach” mindfulness in this article but I’ll set out some ideas that you might be able to try.

Dedicated or integrated mindfulness practice Mindfulness can be both a dedicated OR integrated practice. If I’m looking to improve my fitness, I can go to the gym, walk/run/swim or head to a yoga or Pilates class. I can also incorporate practices during the day that help, such as taking the stairs instead of the lift, getting off the bus a few stops before my actual one, parking far away from the shop entrance, or standing on one leg while brushing my teeth or waiting for the kettle to boil (seriously, one of the best habits to form).

Dedicated mindfulness might be setting aside 30-60 minutes at some point in the day to practice either on your own or with others or using a spoken word recording. You could sign up for an in-person or online eight week Mindfulness Based Stress Reduction Course: a great place to start and how I first developed my practice many years ago.

•

Mindful walking: focus on your breath and the act of walking as you move between locations either in the office, at home or out and about. Consider your surroundings and appreciate what you can see, hear or feel at that time. Perth weather means some sun is often available as well.

•

Mindful queuing: this has changed my life as I no longer get frustrated but use the time to offer “loving kindness” to those in the queue. I know, you have raised your eyebrows but it works. Loving Kindness is a powerful exercise and would take another whole article to explain. Google it, especially Sharon Salzberg.

Micro practices (throughout your day) I’m a Certified Teacher of the Search Inside Yourself (SIY) Leadership Course which was developed at Google over 10 years ago. World experts were brought in to develop a two-day course which blends mindfulness, emotional intelligence and neuroscience to build skills for peak performance, stress management, strong collaboration, innovation, creativity and effective leadership. It became Google’s most popular internal training course and now has outgrown it’s origins to become a not-for-profit that delivers training the corporations, governments, educational organisations and other not-for-profit’s around the world.

Within the SIY Course, we refer to micro practices which are excellent integrated practices that you might want to try: •

Three Breaths: First breath, pay full attention to your breath. Second breath, relax the body. Third breath, ask “what’s important right now”. People tell me they love using this one as they transition between tasks and also to create a break between work-mode and home-life. I picture people doing it in the car in the garage before entering the house after work.

•

Minute to Arrive: Start a meeting with one minute of silence to allow everyone to be fully present.

Sounds strange? It’s normalised now at Google and once you start, you can’t stop.

•

Noting: When you feel stuck on a thought/feeling then notice it to name it (e.g.,frustration, anger, disappointment), let it be and just breathe.

•

Head/Body/Heart check-in: Take three breaths scanning one area of the body with each breath.

First breath - scan the head, registering any thoughts.

Second breath - scan the body registering any emotions or sensations. Third breath-check the heart representing values or intentions.

•

SBNRR: Stop, breathe, notice, reflect, respond.

•

Accepting: Whenever you feel distressed, take a few deep breaths in and out, repeat to yourself “Breathing in, I do my best. Breathing out, I let go of the rest” FYI…this was my favourite during 2020.

Integrated mindfulness might look like one or more of these options: •

Using an App on your phone to access 1-10 minute practice at a convenient time of the day.

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Taking some time on your commute to focus on breathing or listen to a practice.

•

Mindful coffee: try to let go of thoughts and just focus on the smell and taste of the coffee, really savouring the moment and being present.

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•

“Impact is not intention”: When you notice feeling irritated or frustrated with someone, remember this phrase and consider that you don’t know what is driving their behaviour and might not be receiving the message as intended or at all.

Impact of mindfulness practice You’re all busy and don’t want to read endless quotes and data from the last 20 years of research on Mindfulness so here’s a snapshot of what it has been shown to do: •

Helps increase happiness, reduce stress, develop self-awareness and improve communication. At work, it improves employee engagement and collaboration.

•

Builds resilience, improving ability to bounce back from emotionally challenging situations, develop emotional and cognitive resilience, equanimity and inner calm.

•

Builds empathy i.e., the ability to tune in to how others are feeling which improves social interaction.

And builds compassion i.e., empathy in action, the desire to be of service.

The World Economic Forum stated in its 2018 Future of Jobs Report that “in order to truly rise to the challenge of formulating winning workforce strategies for the Fourth Industrial Revolution, businesses will need to recognise human capital investment” and that by 2022 human skills such as emotional intelligence, creativity, leadership and social influence will significantly increase in importance. Hmmm, little did they know of the 2020 pandemic but I’m thinking that has only made the quote here more relevant as business grapples with disruption and a distributed workforce.

LinkedIn also published a list of the top skills for companies in 2020 identifying emotional intelligence as part of the top five soft skills.

In late 2020, SIYLI surveyed 955 leaders, managers and employees from a wide range of organisations around the world and found that 85% agree that emotional intelligence is important for the future up from 60% and 76% in previous surveys. This and other data lead SIYLI to state that EQ based on mindfulness is important given: 1. Current levels for stress and burnout 2. The need for connection in a (more) disconnected world 3. The growing demand for human centred leadership 4. The need to adapt and thrive Investment in mindfulness by organisations pays off with data supporting measurable ROI. The SIYLI report also referred to global firm SAP which has delivered

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the SIY program to 7,200 of its 13,000 employees worldwide. “There is a significant increase in employee engagement, leadership trust index, also an increase in retention rate and a significant decrease in unscheduled absences,” resulting in their estimation that the ROI on this training investment was around 200%.

Aside from all of these benefits mentioned, I also like to suggest that mindfulness is good risk management and offer the following four examples: 1. Stress: Working under short periods of acute stress might help with peak performance but when we tip over into chronic stress the impact on our brain and body is significant and we are more likely to make mistakes.

2. Distraction & Focus: Multi-tasking, being surrounded by electronic devices demanding attention, phone calls/emails/interruptions mean that we are often not focussed on the task at hand.

Regular meditators report being better able to concentrate and notice when they have been distracted and so allowing their full attention to return to the task.

3. Responding to triggers: When we respond in the moment to a triggering event, we are more likely to do so with an automatic response, based on previous conceptions, incorrect judgements and according to patterns. Or, if an “amygdala hijack” has taken place because of a perceived threat, our rational brain takes a back seat as we go into “fight or flight” response. Learning techniques that can help us to stop and breathe is the first step. Being mindful here would encourage us to notice the emotions and sensations in the body. By pausing we reflect either in the moment or for some longer period. And then respond in the most appropriate way.

4. Mindful listening: Lawyers are trained to ask questions, take instructions and provide advice or offer a solution. With time at a premium, interactions with clients, staff and others can often be rushed and the opportunity to really understand what is being said (or felt) is missed. Mindful listening is taking the time to listen in a way that is non- judgemental, without the need to rush or provide an instant solution. Give the gift of full attention.

People trying this out at one of my courses, even in a three minute activity, marvel at what it feels like to be truly listened to. And how hard it can be to listen attentively for that time without interrupting or thinking about what you are going to say next.

What does this mean for lawyers and law firms Let’s bring this back to lawyers and law firms. There’s nothing new about mindfulness programs in law firms.

In December 2010, the Law Institute of Victoria reported on a mindfulness training course developed by the LIV to address mental health issues in the legal

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shown that our brains are malleable and that what we pay attention to changes in the structure and function of our brain i.e., to grow parts of our brain and improve connection between parts. It would take too long to go into this in detail but the evidence is clear and mindfulness has been proven via this research to have an actual affect on the brain.

profession (LIV December 2020 84(12)LIJ p16).

Designed as a preventative health measure, the six week program was put together following the Resilience@ Law launch which was aimed at raising awareness and understanding of the nature and impact of stress, anxiety and depression in the legal profession. It was a joint initiative of the law firms of Allens Arthur Robinson, Blake Dawson, Clayton Utz, Freehills, Mallesons Stephen Jaques and the College of Law. Freehills has run an in-house six-week mindfulness program and collected participant feedback. The selfreported results indicated a 35% decrease in stress, a 12% increase in employee focus; a 10% increase in employee performance; a 10% increase in employee efficiency; a 17% increase in employee work/life balance; an 11% increase in employee communication skills; a 14% decrease in employee multitasking.

Law Mutual WA agrees that mindfulness training can amount to risk management training and has approved my two hour session “Risk Management: A More Mindful Approach” so it can be delivered in-house and firms can apply for it to count toward their training for premium discount purposes. Plus two CPD points, one for Competency one Practice Management and one in Competency two Professional Skills.

The WA Legal Practice Board has recently confirmed that lawyers attending my two-day Search Inside Yourself Leadership Course can apply to the LPB to claim four CPD points, two in Competency one Practice Management and two in Competency two Professional Skills.

What can I do as an individual?

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Make time in your day for integrated or dedicated mindfulness practices

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Find a tech solution that works for you

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Find practical exercises if you don’t want to sit still: Mindful walking/coffee/eating

Lots of people tell me they “can’t meditate” or “can’t sit still” or “their mind is too busy”. I totally understand where they are coming from as I too find it hard to sit for 10 minutes and focus on the breath. This is why the integrated practices and micropractices mentioned earlier can be so valuable. And why I highly recommend those new to mindfulness to try working with spoken word practices.

There is so much available to you via your smart phone with a range of free and paid apps. I suggest trying a range of them until you find the one/s that suit you best, for example, male or female voice, which accent, background noise/music or not. Here’s just a few to get you started: Simply Being, The Mindfulness App, Insight Timer, Calm, Headspace, Smiling Mind. Make sure to switch your phone to DND or Flight Mode when using the App.

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Find a tribe

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Invest in yourself making time for external training

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Practise

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Use your behaviour to model the behaviour you expect from those around you

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Track your Mindfulness time – if you record it, you will be accountable for ensuring you take this time

I also like accessing longer spoken exercises via YouTube and suggest the following: Jason Stephenson, Michael Sealey, Lauren Ostrowski and The Hones Guys.

But the list is endless. What you might find particularly of use with this group is the offerings around mindful sleep exercises. A lovely way to calm the active mind and get ready for a good night’s sleep or to fall back to sleep after the dreaded 3am wake-up.

About the author: Cathryn is a qualified lawyer who has worked in an around the legal profession in WA since the late 80s, practising within law firms and as a claims solicitor at Law Mutual (the professional indemnity division of the Law Society of WA). She now works as a Professional Skills Trainer and Practice/Risk Management Consultant including at role as the Facilitator of the Legal Practice Management Course at the College of Law.

Mindfulness can help change the way you think, react and make decisions. Again this goes back to neuroscience and the idea that our brains are not fixed or reach a peak size/condition in early adulthood and it’s all downhill from there. On the contrary, a steady stream of research over the last few decades has

Cathryn is Certified Teacher at the Search Inside Yourself Leadership Institute and is qualified to deliver the original 2-day SIY Course that was developed at Google over 10 years ago blending Mindfulness/Emotional Intelligence/ Neuroscience as well at Adaptive Resilience, a one day course that was developed in 2020 in response to the Pandemic.

E: cathrynu@bigpond.net.au

APRIL / MAY 2022

MINDFULNESS: the superpower you can practise in six-minute units!

First published the Law Society of Western Australia in the October 2021 edition of Brief.

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Book Review: The Power of Well-Being: A blueprint for rebuilding the social fabric and reimagining an inclusive society Jacqui Thompson* Author: Clive Elliott Cogent Publishing, NY, 2021 available on Kindle One of the trickiest questions you can be asked by a writer is what you think about their work. I was asked this question

by Clive Elliott QC about his recently published book “the Power of Wellbeing”. The timing couldn’t have been worse really. It was just before we were about to launch a webinar where Clive was being interviewed by barrister, Sarah Wroe. I was distracted and a little bit anxious and without hesitation blurted out the truth: “Well, it wasn’t a laugh a minute, but it certainly made me think”. I was horrified the moment I said it.

Clive was not horrified but pleased.

This was the reaction he wanted when he sat down to write this book.

He wanted people to think about the social framework and the structural problems that we all face, not just in Aotearoa New Zealand, but globally.

Importantly, recent upheavals had led him to question how we can regulate the relationship between the individual and society and what obligations we have towards each other.

Clive tackled the subjects not as an academic, but as someone looking for answers. That is part of the charm of the book. It is a discussion about how we as individuals could remodel our social construct to embrace a concept of wellbeing that can create empathy, trust and social cohesion, and in turn a free, fair and equitable society. It is accessible and relatable.

The book has a very Aotearoa New Zealand focus with examples from recent history. Clive also draws on his experience as a “middle-aged white South African who grew up in a deeply divided country, and a racist apartheid regime”1 who emigrated to New Zealand. Speaking of his home of 40 years, he says that “Aotearoa has taught me the inestimable value of honest reflection, tolerance, and understanding.”2 However, the 15 March 2019 Mosque shootings in Christchurch crystallised his thinking on a number of

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[T]he 15 March 2019 Mosque shootings in Christchurch crystallised his thinking on a number of what he calls inconvenient truths, such as tribalism and the us versus them mentality that is rearing its ugly head in the form of racial and religious intolerance. what he calls inconvenient truths, such as tribalism and the us versus them mentality that is rearing its ugly head in the form of racial and religious intolerance.

Added to this was the growing gap in terms of economic equality, the environmental catastrophe that we all face and the increasing focus on the rights of the individual without balancing these against their responsibility to society.

In writing this book, Clive has not shied away from confronting the central issue that has dominated New Zealand politics since at least the 1970s, namely economic growth versus fair living standards. He quotes Prime Minister Jacinda Ardern who said that while the growth of the economy is important, it does not guarantee improvements to living standards or reflect who benefits, who is left out and who is left behind.3 And of course, when people are left behind, we cannot be surprised by growing anger and increasing violence.

Clive concludes that the major environmental and social upheavals we are experiencing need a new way of thinking. He proposes that we focus on General Wellbeing (GWB). He notes that wellbeing is not an economic plan or policy and is not a thing that causes something. By GWB, Clive is talking about an ultimate goal and process – and a philosophy and way of life. It is about achieving a better life for more people, even if it means a little less for those with a lot more.4 As Clive notes, the genesis of wellbeing stretches back as far as Greek and Roman antiquity. It is underpinned by the ethical principle of reciprocity or treating others

APRIL / MAY 2022

[T]he genesis of wellbeing stretches back as far as Greek and Roman antiquity. It is underpinned by the ethical principle of reciprocity or treating others as you expect them to treat you. as you expect them to treat you.5 The general principles stretch back to Bentham and John Stuart Mill among others, but it is perhaps the indigenous culture that has much to teach us about collective wellbeing: “Māori models of health and well-being, such as te Whare Tapa Whā (the house with four walls), a model developed by leading Māori health advocate Sir Mason Durie in 1984, highlights the interconnectedness between our physical, social/ family, and spiritual environments, alongside our connection with our history and the land. If any one of the four walls is not well maintained, the house will eventually collapse. These concepts are foundational to indigenous ways of life. The West, after years of ignoring and marginalising these communities, is gradually starting to appreciate the value of their approaches.”

course written before the human tragedy that we are witnessing in Ukraine.

If you are feeling jaded and anxious about the current status of the world, many of these international models offer hope that, as individuals, we can contribute to the greater good and make the change that we want to see in the world. If you are feeling cynical and ready to give up, or simply don’t want to change, then you are unlikely to read this book anyway.

But if you read no other part of the book, read chapter 8 which discusses how to make GWB work, and consider some of the ideas in the appendices. To be clear, this is not some left-wing/Labour manifesto. The book quotes some of the more conservative politicians, such as Sir Bill English and Sir Don McKinnon, and their comments are often met with approval from the author. Clive draws on his skills as a lawyer to investigate, gather evidence, analyse its weight and then present a case for change. Whether you agree or not, most people will find at least one or two threads with which they can identify.

So, what did Clive hope to achieve in writing this book?

The answer is best put in his words:

Clive draws up a framework for adding value to people’s lives in Aotearoa by using wellbeing as its foundation. He has highlighted initiatives that show how this will work, while acknowledging that they have a long way to go. He has also reached out for international models, particularly in places such as Finland. I enjoyed reading about these, notwithstanding having the disturbing thought lingering at the back of my mind that it may be too little, too late. This book was of

“What I have endeavoured to do is issue a challenge for all of us to join together and create societies and communities based on wellbeing, equality, and reciprocity. On clear, inclusive, flexible thinking.

On caring, and love, and looking out for one another.

Hopefully having convinced and inspired you to have a go at making wellbeing in integral force in how you live your life, I refer you to the following appendices, which offer guidance on what the power of wellbeing looks like lived and in action. … there is just one thing left to do: live a life empowered by and sharing wellbeing.”6 One thing is for sure, at this time in global history, we have nothing to lose by looking for better ways to model our world.

Creating an environment in which people can genuinely flourish and thrive.

REFERENCES P11. Page numbering in these footnotes refers to the Kindle version of this book.

P11 3 P27 4 P30 5 P35 6 P256 1 2

APRIL / MAY 2022

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Petrol Heads’ Corner David O’Neill*

I was given plenty of warning about this review before it was carried out and made a few enquiries around the traps about what would be the most suitable vehicle to take on my usual test route.

Unfortunately, Covid and the government stepped in and ruined everything. I had a car set up to take over to the beach, but then I caught the dreaded lurgy and was isolating for seven days. The idea of getting into someone else’s car went down the gurgler along with something fresh and exciting, so you will just have to be patient and wait until next time.

I even had one of those eco-friendly things jacked up.

The Audi RS GT e-tron which, believe it or not, was situated in the Tron (sorry about that – couldn’t resist).

However, I couldn’t get hold of said e-tron, so I am going to resort to a, sort of, review.

I am fortunate enough to have been able to lay my hands on a near-new 2021 Audi RS6. So I thought I would undertake a comparison of three cars which are the same model, but manufactured some years apart. I have previously reviewed a 2015 RS6 and a 2017 RS6 Performance, and so I will compare these to the latest iteration, the 2021 RS6.

The specs (Petrolhead bits) for each vehicle are as follows: 2015 RS6

2017 RS6 2021 RS6 performance

Engine

4L V8 Twin Turbo

4L V8 Twin Turbo

4L V8 Twin Turbo

Power

412 kw

445 kw

441 kw

Weight

1935 kgs

1950 kgs

2250 kgs

Torque

700 nm

750 nm

800 nm

Gearbox

8 speed automatic

Acceleration

0-100km/h 3.9 seconds

0-100 km/h 3.7 seconds

0-100 km/h 3.5 seconds

Fuel economy

Appalling

9.6L/100 kms 10.6L/100kms (not too bad)

Even though the 2021 car is heavier, you can see why the acceleration is better. The torque it delivers is exceptional, and it is noticeable – a lot actually. To put it another way – they all go like stink.

Looks This is something you can make up your own mind about. The cars look as follows: 2015

They are all the same vehicle. You know, hated by the Greens and Labour, loved by petrolheads and you have to sell your first born to go in and fill it up. The Germans, by the way, call them an Avant. We call them station wagons. However, it is not uber-cool to call them station wagons. One must call them Avant. I mean Audi station wagon or Audi Avant? Pretty simple really – Avant! The Italians would just say “Avanti!” and throw the rear vision mirror out the window because nobody is going to catch them……….

This is a car that you can:

2017

a. Take a load of rubbish to the dump. b. Pick up Grandma and Grandad, load their Zimmer frames into the back and cart them around somewhere for afternoon tea. c. Deposit them back at the rest home and then take it out onto the track and give the Aston Martins and a few others a good thrashing.

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APRIL / MAY 2022

2021

itself, panorama roof (this is a fancy name for a glass roof back and front with blinds that slide across and the front one actually opens).

They all have extraordinary sound systems and you can play music, heavy rock or something in between if you wish and you will get the most exquisite noise coming out of the speakers.

I am sure it probably annoys the aficionados amongst you to hear me say this, because no doubt you will have cars with numerous speakers situated in every conceivable aperture and every corner but I have to say the B&O speakers are very good.

These cars all have the same look – namely they want to eat you, preferably raw. I find that cars pull over when you pull up behind them on the open road (and that’s not because I’m travelling too close). The car just looks like it needs to pass.

The 2015 car was raw power, noisy, hard riding. The 2017 car was similar but with more grunt. The 2021 car has bigger wheels (22 inch), air suspension and a whole lot more sound deadening material inside it. I’m not saying it’s a Rolls Royce but you can drive along, listening to music and have a discussion at the same time without having to yell.

The cockpit does seem to be bigger. The boot is certainly bigger. The sophistication available to the 2021 car is light years ahead of the 2015 car.

Everything in the 2021 car is touchscreen with cameras everywhere, radar sensors that would happily grace one of New Zealand’s war ships and all sorts of protection equipment with the things that families like such as heated seats, cooled seats, wonderful stereo etc etc.

They all look and sound like uber fast cars (and they are) and they all go like one. The 2021 car is noticeably quicker and gets up to speed in the blink of an eye without too much fuss. As well as a Drive mode and Sports mode it has two RS modes. RS1 is pretty much everything coming on to make you go like crazy and RS2 switches off the traction control so that if you want to drift it, you can (that’s of course if you are happy drifting a car, worth an extraordinary amount of money, round a corner). Alternatively, you can switch it into RS2 mode, have no traction control and lose it on the first corner – your call…

I have had all of these cars over on my test route which is the drive along the Hauraki Plains, over the Kopu-Hikuai Hills and into the beach and all of them performed exceedingly well, both through the corners and along the straights.

I’d go so far as to say the 2021 car handles better than the others. It seems to have better grip and you can feel the road better when you go through the corners.

Don’t get me wrong, they are heavy cars and they need to be handled firmly because you can come into a corner way too fast, quite unexpectedly, and it doesn’t matter how good a driver you are, you are going to end up in the ditch if you don’t watch it.

The one thing about these cars is that you have to rethink your way of driving. Because of their speed and their pickup, you need to think about getting past the car you are passing and then braking for the next corner or the car in front because the cars will hit extraordinary speeds in a very short space of time (and I’m not going to mention numbers here) and it doesn’t take much to approach a corner at a speed that is way too fast for comfort.

Noise This deserves a paragraph on its own. Starting the car, driving it or passing another car leaves nobody under the misapprehension or misunderstanding that this car is not a V8. It is.

When it is in Sport or RS mode, it is incredibly raucous, downshifts as you approach a corner with a slight blip on the throttle (undertaken electronically) and turns itself into a sports car with that glorious V8 roar – which us petrolheads all know and love.

Comfort is, as I have described, improved, namely the 2021 car is much more comfortable than the older models. To be fair that is to be expected to some degree. Audi have had a long time to get this one right and I think they have nailed it this time. The hardest job they have is continuing to keep improving the model.

Mind you, climate change and price of petrol will probably force their hand.

I appreciate this wouldn’t thrill the eco warriors of you who love to drive hybrid and electric vehicles, but you don’t buy a car like the RS6 to warm the cockles of your environmental heart. You buy it because you like to have a V8 and you like it to go quick and you love the noise.

The 2021 car has power locking doors, so you don’t have to slam the door when closing it, it will close

* David O’Neill is a Hamilton barrister practising out of Riverbank Chambers. We suspect he loves Audis.

APRIL / MAY 2022

And on that slightly contentious note, I will end. Until next time – safe driving.

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2022 – 2023 COUNCIL CONTACT DETAILS PAUL RADICH QC – President Ph: +64 4 974 5951 Paul.radich@cliftonchambers.co.nz VICTORIA CASEY QC Ph: +64 4 212 4679 victoria.casey@cliftonchambers.co.nz PHILLIP CORNEGÉ Ph +64 7 282 0572 Phillip@phillipcornege.com MARIA DEW QC – President Elect Ph +64 9 307 5251 maria@mariadew.co.nz GOWAN DUFF Ph +64 27 2828 287 gowan@mataichambers.com SIMON FOOTE QC Ph: +64 9 307 8784 swbf@simonfoote.co.nz FELIX GEIRINGER Ph: +64 4 909 7297 felix@geiringer.law TARYN GUDMANZ Ph: +64 3 477 8781 taryn@princeschambers.net GENEVIEVE HASZARD Ph: +64 7 571 2447 genevieve@kennedychambers.co.nz ISWARI JAYANANDAN Ph: + 64 9 263 0047 iswarij@yahoo.co.nz SAM JEFFS Ph: + 64 9 973 0272 sam.jeffs@bankside.co.nz STEPHEN LAYBURN Ph: + 64 9 300 5485 stephen@stephenlayburn.co.nz RICHARD MCGUIRE Ph: +64 3 962 4241 richard.mcguire@pds.govt.nz TIHO MIJATOV Ph: +64 4 472 9027 tiho.mijatov@stoutstreet.co.nz JAMES RAPLEY QC Ph: +64 3 964 8000 james.rapley@bridgesidechambers.co.nz KINGI SNELGAR Ph: +64 21 293 6520 Kingi.sneglar@bankside.co.nz SETAREH STIENSTRA Ph: +64 9 309 7889 Setareh@publiclawchambers.com ANNE TOOHEY Ph: +64 3 260 3101 anne@annetoohey.com MAGGIE WINTERSTEIN Ph: +64 9 262 1126 m.winterstein@libertylaw.co.nz