LawTalk Issue 792

LAWTALK

30 MARCH 2012 / 792

FOR THE NZ LEGAL PROFESSION

NEW ZEALAND LAW SOCIETY NZLS EST 1869

A SNAPSHOT OF THE NEW ZEALAND

LEGAL PROFESSION

PAGE 20

JUSTICE MINISTER’S 2012 AGENDA

PAGE 27

CANTERBURY WESTLAND WINS AWARD

Keeping on top of Canadian IP business, downunder As an Aussie patent attorney working from Auckland for a Canadian NASDAQ-listed technical solutions company, Trent Smith is not your run-ofthe-mill IP professional.

And with a unique role in what is a niche profession for New Zealand, he’s pursuing a University of Auckland MBA to widen his future career opportunities.

When SMART Technologies acquired Smith’s employer, New Zealand’s NextWindow, last year, it could have been time to look at those opportunities, pronto.

But the USD$800-million company retained and promoted him, to “manager, intellectual property,” where he leads a team of 10, based mostly in Canada.

Perhaps they saw some serious spark in the over-achieving 29-year-old, who says he thrives on a deadline, doesn’t muck around, and likes not having to use time-sheets. Or perhaps they recognised the knowledge Smith brings to the interactive whiteboard, and preferred he didn’t take it elsewhere.

He’s carved a career in intellectual property, beginning with a bachelor of science (computer science) before working for IP Australia, gaining his master’s in IP law and moving to New Zealand in 2009. Smith then enrolled with the university’s

postgraduate diploma in business as a pathway into the MBA. “I have strong analytical and writing skills,” he says.

“But I wanted to get more exposure to other areas of business and to round out my knowledge. Doing the MBA lets me get more of an understanding of things like finance, management accounting and supply chain management. If you want to be in business, you have to understand everything.”

He chose the university because of its reputation “as the best in New Zealand.” Smith wants to progress in his career – and says the diploma has already helped, but he’ll need the MBA to get there.

“My role…ties in with other areas of the business like mergers and acquisitions, licensing and product development.”

Working mostly in USA, Canada, Europe and Asia, his team protects the company’s innovation by filing patents, designs, trademarks, enforcing IP, patent strategy, special IP matters and identifying assets for purchase and license.

A few months into his MBA study, Smith says it’s a big step-up in workload from the diploma, and he’s enjoying working on a real project alongside “a diverse bunch of people.”

Part of the value he expects to get out of this year’s study is his major research project, where he’ll

The University of Auckland Master of Business Administration (MBA) has an intake in January each year, and welcomes applications from business leaders. Find out more at www.gse.auckland.ac.nz/nlw.

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look at the use of intellectual property strategy as a business tool. It’s an area Smith is passionate about.

“It’s going to give me a reason to go and sit with people who have an interest in my field,” he says.

“IP is a business tool and an asset that can be manipulated and used to further a company.”

Smith says building a good strategy around IP should save a company time and resource – and not be a begrudged cost. He also says there is an incorrect perception that it’s difficult to get a patent, so many New Zealand businesses don’t pursue one.

Mr and Mrs Smith lead a busy life - his wife is also a patent attorney – enjoying time with their young family and travel. They’re nothing like their movie namesakes, but their neighbours probably wouldn’t dare copy their landscape design, or Trent Smith’s tactical plays (he enjoys being a “sports dad”).

He travels to SMART head-office in Canada up to four times a year, and even jams in some time to volunteer for the committee of his Aussie-rules club, North Shore Tigers. And while Smith’s case of ‘working remotely’ seems extreme – he yawns while describing how he manages the time difference - he is a dedicated senior manager who only occasionally Skypes in his jandals.

INSIDE

THE MAGAZINE

FEATURE: SNAPSHOT OF THE NZ LEGAL PROFESSION

“We’re not just trying to advocate for change, but also to empower other people to advocate for themselves.”page 3

“Barristers make up 12.4% of New Zealand lawyers. While two-thirds overall are male, 44% of barristers who have been admitted for 10 years or less are female.” page 12

21 Drug courts have huge promise

03 Justice through voice for youth

Two initiatives with “huge promise” to both save money and reduce offending were outlined

by Justice Minister Judith Collins...

By Rachael BRECKON

04 The duty to ‘rat’

By Duncan Webb

It has been drummed into us since our time at school that no one likes a “rat” who “squeals” on their mates...

27 Canterbury Westland branch wins earthquake award

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A SNAPSHOT OF THE NEW ZEALAND

LEGAL PROFESSION

WHO holdS practising certificates?

CHANGES / LOCATION / GENDER EMPLOYMENT / YEARS IN PRACTICE ADMISSION / SPECIALIST AREAS / ETHNICITY SALARIES / SMOKING / SATISFACTION THE JUDICIARY page 10

Walking the Talk conference

20 Minister very keen to work with profession Lots of lawyers have lots of really good ideas on how to improve the justice system, Justice Minister Judith Collins says...

32 $10,000 refund ordered A Lawyers Standards Committee has found a lawyer guilty of unsatisfactory conduct and ordered him to refund $10,000...

REGULARS

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From the Courts

People in the law

Letters to the editor

The Bookshelf

Branch News

CLE

Lawyers Complaints Service

nzls lawyers website • keep up-to-date with local and regional news and events • have your say on law reform • find information and resources for practising law http://my.lawsociety.org.nz www.facebook.com/mylawsociety https://twitter.com/mylawsociety

LAWTALK 792 / 30 MARCH 2012

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FROM THE LAW SOCIET Y ANTONY M AHON

L

ast week the Law Society presented its submission on the proposed fixed fees framework for family legal aid. The Law Society’s Family Law Section put a lot of effort into this and consulted widely with family lawyers.

There are some serious issues which should concern all lawyers, no matter which fields they practise in.

The fees proposed use flawed data and do not represent the average cost of a family legal aid case. They do not include the actual time, skill and expertise required to deliver legal advice and representation to the required standard. The fees are so low that lawyers will struggle to cover basic overheads and practice costs.

There is a strong belief among family legal aid providers that the proposal is financially unsustainable and will achieve the exact opposite of the objectives set out in the 2009 Bazley report. Dame Margaret wanted to improve the quality of legal aid representation. What is proposed will create a situation far more conducive to “car boot lawyers” and destroy two years of hard work by the Law Society to ensure high standards are maintained in the legal profession.

Family legal aid providers will be at serious risk of breaching their professional and ethical obligations. We believe that many will simply not risk undertaking legal aid assignments.

As part of our consultation we surveyed family lawyers providing legal aid. We received 764 responses, which is 66% of all family legal aid providers who had applied for provider status before 31 December 2011.

The results showed that 16.3% of family lawyers will not undertake any legal aid assignments if the current fixed fees proposal is introduced. A staggering 55.8% will do less or significantly less family legal aid. This means that 72.1% of family lawyers say they will significantly scale back or cease legal aid work.

The Ministry of Justice has said it is happy with the number of lawyers who reapplied for

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approval. Our information shows that many lawyers reapplied either to continue to act for existing clients, in ignorance of what the fixed fee proposals would mean, or will do no or less family legal aid.

Family law needs more providers than other areas of law. A reduction in numbers will increase the conflicts of interest within the limited pool of family legal aid providers, particularly in areas outside the main cities.

Self-represented litigants will flood the Family Court, clogging the system and increasing both delay and cost to the court, to court users and to other areas of government.

It is clear that there has been no analysis of the likely negative impact of introducing fixed fees. The proposal will severely impact on access to justice for the people who the legal aid service was established to assist.

Vulnerable parties will be subjected to the very power disparities the Family Court has fought so hard to redress. It will establish a two-tier system of justice and promote the inequality of arms between private and legally-aided parties.

The Law Society recommends deferring fixed fees for family legal aid until submissions from the major Family Court review have been considered. This will allow consideration of what are potentially significant cost savings.

We also believe the Ministry of Justice should consider recalculating the time allocated in the proceedings steps to align them more realistically with the reasonable costs of running a practice.

Our submission is available on the Law Society’s website (www.lawsociety.org.nz). I urge all members of the legal profession to read it and to bring it to the attention of any New Zealander who has a concern with access to justice and the social impact of reducing that access.

Antony Mahon Chair, Family Law Section

LAWTALK More than 12,000 copies of LawTalk are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certificate. Although the number of lawyers with practising certificates varies, it is typically around 11,500. Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.

STREET ADDRESS: 26 Waring Taylor Street, Wellington Postal address: DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand EDITOR: Frank Neill Ph +64 4 463 2982 editor@lawsociety.org.nz WRITERS: Rachael Breckon Ph +64 4 463 2910 rachael.breckon@lawsociety.org.nz Hannah Grant Ph +64 4 463 2902 hannah.grant@lawsociety.org.nz DISPLAY Advertising: Frank Neill Ph +64 4 463 2982, editor@lawsociety.org.nz CLASSIFIED Advertising: Christine Pugh TPh +64 4 463 2966 christine.pugh@lawsociety.org.nz Inquiries about subscriptions to: subscriptions@lawsociety.org.nz DESIGN: Jesse Cogswell Ph +64 4 463 2981 jesse.cogswell@lawsociety.org.nz Printing: Lithoprint, Wellington ISSN 0114-989X

Justice through voice for youth

By Rachael Breckon Mā te tika o te toki o te tangere, me te tohu o te panaho, ka pai tetere o te waka i ngā momo moana katoa.

By designing the keel of the waka to perfection, your canoe will overcome obstacles.

This is the whakatauki (proverb) set to focus JustSpeak, a group of around 16 to 25-year-olds taking a holistic look at justice and issues affecting people within the same age bracket.

“The whakatauki shows the need to design the keel of JustSpeak to perfection, so that the group can overcome obstacles, and maintain a durable voice in the criminal justice conversation,” Kate Stone, JustSpeak co-ordinator and Victoria University law graduate says.

The group is officially set to make their voice public by launching a report on Māori and the Criminal Justice System at Te Puni Kokiri on 1 May. This public launch comes nearly a year after advocacy group Rethinking Crime and Punishment identified a need to bring a youth voice forward on criminal justice issues.

Rethinking Crime and Punishment executive director Kim Workman set up a meeting for youth interested in criminal justice. “We were taken aback at the response,” he said.

The inaugural meeting held in May 2011 attracted 42 young people with 11 offering to form a steering group.

Since then JustSpeak, while remaining a non-partisan, more youthful off-shoot of Rethinking Crime and Punishment, has held independently-organised monthly gatherings. The gatherings included a panel discussion, followed by smaller group discussions around a

CLIENTS WITH JOHN MILLER LAW

The organisation has also secured a $30,000 Todd Foundation grant which pays for a part-time co-ordinator, expenses and an upcoming youth summit. The group is planning this national Young People’s Summit on Justice later this year, and is seeking sponsors.

“One of the positive features of this initiative is the further development of young lawyers, through opportunities to discuss and debate issues of crime and social justice,” Mr Workman says, “to hear experts and speakers on specific topics, and to take that knowledge and use it in the development of policy position papers, and in writing submissions on legislation.”

The group wants to make its own submissions and to educate youth without a legal background or tertiary education on how they can influence change.

Kate Stone, coordinator of JustSpeak.

ACC DISPUTES? The views expressed in LawTalk are not necessarily those of the New Zealand Law Society. Articles may be reproduced provided acknowledgment is given to LawTalk.

central topic. They have attracted up to 80 young people from different areas of the criminal justice sector.

Level 1, 13 Leeds St I PO Box 6314, Wellington +64 (04) 801 5621 I info@jmlaw.co.nz www.jmlaw.co.nz

“We’re not just trying to advocate for change, but also to empower other people to advocate for themselves,” steering committee member and Victoria University assistant lecturer Tai Ahu says.

“We believe social justice issues are inseparable from criminal justice issues,” Ms Stone says.

For more information email justspeaknz@gmail.com. LT

• Wish to refer them to a specialist ACC law firm?

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LAWTALK 792 / 30 MARCH 2012

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The duty to ‘rat’

By Duncan Webb* It has been drummed into us since our time at school that no one likes a “rat” who “squeals” on their mates.

However, in the profession of law some wrongs are more serious than playground high jinks. Running to the teacher is, in the professional context, sometimes not only an option but an obligation.

Most practitioners have little difficulty with the fact that there is an obligation to report really serious wrongdoing of another lawyer to the Law Society. This was the gist of the old Rule 6.03 which stated that (subject to privilege) there was “generally” an obligation to report “defalcations and other improper acts” by another lawyer.

The current rules are framed in more obligatory terms. Rule 2.8 states that “a lawyer who has reasonable grounds to suspect that another lawyer has been guilty of misconduct must make a confidential report to the Law Society at the earliest opportunity”. That rule is subject to the law of privilege, but not the lawyer’s obligation of confidence.

This means that if a fellow practitioner seeks advice under the aegis of a retainer (whether paid or not) the advice will be privileged and a report is prohibited as a breach of privilege.

However if the matter comes to attention other than in a privileged context (for example in conducting the affairs of another client) the matter must be reported.

Ostensibly the rule leaves little or no room for discretion – all misconduct must be reported. Some breaches are patently misconduct. Fraud, forgery or any conduct with a healthy thread of dishonesty will fall foul of the “disgraceful or dishonourable” standard set out in s7 of the Lawyers and Conveyancers Act 2006.

However, opinion will differ markedly as to what other conduct might be disgraceful or dishonourable. Some practitioners are outraged by the hyperzeal of opposing counsel or consider as deplorable a robust, animated and

colourful exchange peppered with adjectives that we would not condone among the youth. Others shrug and take a more philosophical approach to such matters.

What is more, misconduct extends well beyond merely the disgraceful and dishonourable and now includes “wilful” breach of rules and also “gross” overcharging. The fact is that some practitioners are more enthusiastic than others in reporting their peers to the Law Society. Part of this may be that the sense of outrage is particularly acute (and objectivity perhaps harder to come by) when a practitioner is on the receiving end of some questionable conduct.

A further word of warning: when considering whether or not the conduct of another lawyer is outrageous and in breach of their obligations to their own client we need to take account of the fact that we do not know what the relationship is between that lawyer and their own client. We must be cautious in leaping to conclusions which presume that there is some breach of obligation when the lawyer may be grandstanding in a way which, while we do not appreciate it, is not in breach of any rule.

Perhaps most invidious is the (hopefully rare) practice of threatening or making complaints as a strategy either in a negotiation process or litigation. The making of a complaint in the context of litigation is rarely necessary as the process is, by definition, conducted under the supervision of the court and any matters of conflict, privilege or other professional breach can generally be attended to by the court quickly and effectively.

The case is somewhat different where the matter is not before a tribunal.

However, the underlying principle must be that, as with any legal process, a complaint may only be made (or threatened) for a proper purpose and not to gain some collateral advantage (Rules 2.3 and 2.7). The least desirable thing is a complaint about a complaint

– something which is sadly not unknown.

Complaints by lawyers against lawyers can, of course, lead to the somewhat unseemly spectre of the Lawyers Complaints Service’s time being consumed needlessly. Obviously where the conduct is serious such a complaint is proper (and obligatory). However a measure of caution is required where the conduct might be of a kind that is better dealt with in another forum (or indeed not at all). After all, some conduct falls into the “parking ticket” category of a trifling breach.

For this reason, where the conduct in question is “unsatisfactory” there is no obligation to report the matter (though there is a discretion to do so even if the matter is confidential).

The reasons for this are obvious. Many incidents of unsatisfactory conduct are of a minor nature and while the intervention of the professional regulator is not objectionable in such cases, it is often not necessary. This will be especially the case where the infraction is minor, or simply an example of poor service. In such cases it may be better to address the failing by a collegial reminder or improved supervision.

One thing we should perhaps keep in mind is the conflicting interests which exist in respect of such reporting.

On the one hand, lawyers are seen as important safeguards and checks on each other and the public expect us to “out” wrongdoers. After all, who is better placed to know when things are going badly wrong than another lawyer, particularly one who is in the same firm? Any suggestion that a lawyer would not report serious wrongdoing of a colleague looks like cronyism and is to be avoided.

On the other hand professional squabbling in respect of minor matters is not only wasteful of the resources of the Lawyers Complaints Service and an ineffective way to remedy problems, but also destructive of professional relationships. LT

* Duncan Webb is internationally recognised as New Zealand’s leading expert in professional responsibility and liability. In fact, he wrote the book that is the key text in this area: Ethics, Professional Responsibility and the Lawyer, now in its second edition. A former law professor at Canterbury University and Legal Complaints Review Officer, Mr Webb is now a partner of Lane Neave in Christchurch.

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FROM THE COURTS Misrepresentation and multiple wrong-doers

By Barry Allan* When buying land, information can come to the buyers through many sources. Vendors, real estate agents, local authorities, lawyers and other professional advisors may have all provided information which has influenced the purchase decision.

If an error infects some of that information, but the same infected information gets to the buyer through more than one source, resolving the fallout can become very complex.

Liability for bad information can arise in contract or tort or under statute, but each source of liability has its own remedial apparatus. Questions arise as to which provider of information has caused the loss and, if there are multiple providers, how to share out the resulting liability in a way which reflects the differing bases for their liability.

These are the issues which arose before the Supreme Court in Marlborough District Council v Altimarloch Joint Venture Ltd [2012] NZSC 11.

The buyer wanted to establish a vineyard. To do so, access to water is critical. The contract simply required transfer of “existing” rights. But the buyer thought, quite reasonably, that it had secured the necessary water permits. After all, the vendor’s lawyer gave the buyer forms appropriate to transfer rights to take sufficient water.

The Marlborough District Council gave the buyer a Land Information Memorandum (LIM) to say there would be enough. The vendor’s real estate agent had also said plenty to indicate there would be enough. Unfortunately, their statements were all in error: the vendor had sub-divided the land and only half the represented amount of water was available. Even the councilissued LIM got it wrong. Establishment of the vineyard was impossible.

The buyer could have sold up and started again. Had it known the truth, it

certainly would never have bought. If the land had had the promised water supply, it would have been worth $400,000 more than the land without it and worth $125,000 more than was paid for it.

Instead of selling, it spent $1 million to get further, less secure, water rights and to build a dam so that it would have a water supply equivalent to what had been promised.

In the Supreme Court, misrepresentation by the lawyer and real estate agent was not in issue. They would indemnify the vendors. In issue was the measure of their damages. The council was sued in negligence. It denied any duty of care and any liability. Its primary argument was that, because the vendor’s contractual liability exceeded any possible tort liability, there was no loss caused by the council.

The council’s duty of care for the defective LIM was easy to resolve: all agreed there was one. Section 44A Local Government Official Information and Meetings Act 1987 casts a statutory obligation upon councils to give any information concerning any consents or the like it may have issued in a LIM. This covered the water rights. Justice Tipping saw the need for proximity as “clearly” satisfied, because the LIM had been paid for. The section requires accuracy in LIMs and encourages reliance upon them, particularly s44A(5) which allows them to be used as evidence.

The council did not know the buyer’s purpose: that did not stop a duty arising.

No doubt the normal principles of remoteness of damage have the potential to manage council exposure. Section 41 gives limited immunity to councils for defective official information, but does not include Part 6 of the Act. Because s44A is in Part 6, council had no immunity. Assessing damages was similarly easy. The objective is to remove the wrong. To the extent that a buyer pays too much as a result of the wrong,

that amount is recoverable (here, it was $125,000).

In its claim against the vendors, the buyer had to be put in the position it would have been in had the contract been fully performed. Could the buyer get the costs of achieving the promised water supply ($1 million) or just the difference between the contract price and the value of the land (the conventional measure).

The court emphasised that assessment of damages is a question of fact, so that the conventional measure is only a guide. The majority held that there were sufficient unusual factors to allow recovery of the cost of cure. A hypothesised sale by the buyer was unrealistic: no other suitable property was available. The buyer’s purchase of water rights and constructing a dam was the only practical way to get the promised water, and the only fair way of correcting the disadvantages to the buyer. Although not adverted to, the sense of what was fair may have been influenced by this liability falling upon the lawyer and real estate agent, who had not done their jobs competently.

Chief Justice Elias, dissenting, accepted that cost of cure can be the appropriate measure, particularly if undertaking a cure is the means of mitigating loss or the nature of the contract is to perform services. Spending $1 million (on land worth just over twice that) would be unreasonable as disproportionate to the benefit obtained, and this was not a contract for services. She saw the buyer’s expectation as being to obtain land with the represented water rights, which would have been worth $400,000 more than the land as sold. Allowing recovery of $400,000 would thus be adequate to meet their expectations.

Finding that contract damages were $1 million and tort damages were $125,000 raised the conceptually difficult question

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FROM THE COURTS of the impact the vendors’ liability was to have on that of the council. The council essentially argued that the vendors’ contract-based liability was logically prior to the council’s tort-based liability. As a result, if the plaintiff’s loss was fully recoverable from the vendors, there was no residual loss for the council to pick up.

The majority rejected this: until the buyer had actually been paid more than the $125,000, it had not been compensated for its tort loss.

An expectation of payment is not compensation. As Justice Blanchard says at [72], doing anything else would expose the buyer to an unnecessary risk of under-recovery. Any problems concerning what the buyer should have done to mitigate were resolved by

commencing the proceedings against both wrong-doers. Justice McGrath held that the council was not entitled to have its liability depend upon the value of the contractual claim against the vendors.

In assessing loss, all gains or advantages obtained (such as the value of the land itself) must be taken into account. The minority would include the potential recovery from the vendors as such a gain. Although the minority deny that their approach gives primacy to contract over tort and say that the liabilities of the parties are “sequential” rather than concurrent, they both pre-suppose the buyer claiming first from the vendors.

At [106] Justice Tipping said that it was only to the extent that the buyer had a shortfall in his contractual claim that the council caused loss. Naturally, if the

buyer fully recovered from the vendors, it could not then sue the council. This had not happened here. The approach taken by the minority appears to rest upon assumptions as to the solvency of the contract breaker: if the buyer had no assurance of payment from the seller, there is no reason at all for it not recovering from the council to the extent of its established liability.

Where one party pays a liability it shares with another, it can look to it for a contribution. Since the council had paid nothing, contribution was sought.

This was denied because the losses were not of the same character: there was no common liability. It was not enough that the council and vendors made the same error (which influenced Justice McGrath to see contribution as possible). LT

* After practising as a litigator for a number of years and then teaching various business law papers at Massey University, Barry Allan joined the Otago University law faculty in April 2002. He currently teaches contract and torts law. Barry finds it difficult to limit himself to a specific area of legal research, but is most actively involved in the areas of credit law and secured transactions.

Freezing orders, the FMA and what it might mean for trusts

By Jessica Palmer and Nicola Peart* The Financial Markets Authority v Hotchin (HC Auckland, CIV2010-4048082, 21 February 2012, Winkelmann J) is the latest decision in the battle over freezing orders in the Hotchin litigation.

Mr Hotchin is under investigation for suspected breaches of the Securities Act 1978. Pursuant to ss60H and 60G of the Act, the Financial Markets Authority (FMA) sought interim asset preservation orders over trust property that Mr Hotchin neither legally nor beneficially owned. Mr Hotchin settled the two trusts and had reserved powers of appointment and removal of trustees and discretionary beneficiaries.

The FMA failed in its initial argument that Mr Hotchin controlled the trust assets by virtue of his powers ([2011] 3 NZLR 469), but was given leave to re-plead its claim. It presented several additional grounds to justify interim preservation orders to which the trustees responded with fresh applications to strike out the claim.

The decision is of interest, but also of concern, not because of its result on the facts, but because the court’s reasoning could be construed to apply in circumstances going well beyond the narrow confines of the decision and potentially invalidate a large number of trusts.

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Lack of intention The FMA argued that by reserving the power to appoint and remove trustees and beneficiaries, Mr Hotchin did not truly intend to transfer the beneficial interest. The trust was therefore void for lack of intention to create a trust.

Justice Winkelmann rejected this argument because the trust deeds contained a self-dealing prohibition which prevented Mr Hotchin from using his powers to benefit himself. Although the trust deeds included a power to vary or revoke the management and administration provisions, the court ruled that it could not be used to revoke the self-dealing prohibition.

Even if the variation clause could be construed to apply to the self-dealing clause, such an amendment would be in breach of trust because it “would not be for the purposes of carrying the trusts created by the deeds into effect but rather for Mr Hotchin’s benefit” and, as such, would itself be a breach of the prohibition on self dealing [41].

With respect, this reason appears to presuppose that Mr Hotchin would exercise the power to vary the trust (and then make an appointment to benefit himself). It does not account

for the possibility of an independent trustee effecting the variation, particularly given that the trust deeds both authorised variations and gave the trustees wide unfettered discretions to act even without considering the interests of the beneficiaries.

The court would have been on safer ground relying on the construction argument that the self-dealing rule applied to dispositive powers, not management or administration of the trust, and so could not be varied.

Of greater significance is the risk that this decision poses to trusts more generally.

The court’s reasoning could be seen to draw into doubt the legitimacy of trusts where appointors have the power to appoint themselves as sole trustee of a trust of which they are also a discretionary beneficiary. The assumption appears to be that they will act for their own benefit and disregard their duties to the other beneficiaries. In Mr Hotchin’s case that assumption was negated by the self-dealing rule, saving the trusts from invalidity.

However, it is our understanding that it is more common for trust deeds to contain the reverse to a prohibition against selfdealing: they usually permit it. They may control a trustee from potentially favouring itself over other beneficiaries in other ways, for example by inserting a clause preventing a trustee from exercising any dispositive powers alone.

But in the absence of constraints on selfdealing, the argument that the reservation of powers of appointment renders the

FROM THE COURTS trust invalid could be seen to have gained fresh support.

beneficiaries on vesting in 2079 and 2083 respectively.

Sham

The purpose of s60H is to prevent frustration of aggrieved persons’ remedial rights. Accordingly, in the specific context of the legislation, the words “on behalf of” in s60H cannot be construed narrowly to capture only assets against which judgment against the relevant person could ultimately be enforced. It can extend to the beneficiary status of associated persons.

The court also found that it was arguable that one of the trusts was a sham because Mr Hotchin settled it initially with himself as the sole trustee and even after other trustees were appointed, the evidence suggested that they allowed Mr Hotchin to treat the trust assets as his own. Accordingly, the court declined to strike out the sham allegation.

In making this finding, the court applied the principles of sham trusts adopted by the Court of Appeal in Official Assignee v Wilson [2008] 3 NZLR 45 and did not purport to change the substantive law on shams. It will be interesting to see how this claim is developed if it arises at trial.

Wide net of preservation orders The court noted that the categories of property in s60H over which preservation orders may be granted indicates that the legislature “allowed a very wide net to be cast”.

For example, it includes assets held on behalf of associated persons and assets held by the relevant person in a nonbeneficial capacity. Whether the assets will be available to meet any judgment under the Act appears to be left to the substantive proceedings.

Given the broad jurisdiction to grant preservation orders, it is not surprising that the court declined to strike out the FMA’s claim that the trustees of the two trusts held the trust assets “on behalf of” Mr Hotchin’s children, even though they were merely discretionary beneficiaries of the trusts and final

Internet providers lose UK appeal

It seems curious that the same argument was not made in relation to Mr Hotchin himself. Although he was not a final beneficiary, he was a discretionary beneficiary of one of the trusts and had the power to appoint himself beneficiary of the other trust, which the court was prepared to assume he would exercise. Thus, it was at least arguable that for the purpose of this statute, the property was held on his behalf just as it was for the children.

Caution While this decision may appear to be far-reaching, it must be borne in mind that it was given in response to a strikeout application and required the application of a particular statutory scheme.

Further, the court criticised the FMA for providing inadequate and confusing pleadings that required clarification and development in oral submissions. In these circumstances and in light of our concerns expressed about the potential implications of this decision, readers ought to be cautious about applying the decision outside its specific statutory context. LT Jessica Palmer is a senior lecturer and Nicola Peart is a Professor in the Law Faculty at Otago University.

*

Britain’s Appeal Court has turned down a challenge to the country’s new Digital Economy Act, which requires internet service providers to send an escalating series of warnings to users they have reason to suspect are illegally downloading movies or music. In addition, repeat offenders’ access to the web can be suspended.

The British legislation is similar in broad approach to rules in both New Zealand and France relating to online copyright enforcement.

The government last year enacted the Copyright (Infringing File Sharing) Amendment Act 2011, despite strong opposition by open source lobbyists and others. The New Zealand Law Society largely supported the legislation, which provided a series of warnings followed by sanctions, including damages.

However, unlike in Britain, the New Zealand government decided that disconnection of people who repeatedly breach copyright in their online activity should be put on hold for now.

In the latest British case, internet providers BT Group PLC and the TalkTalk Telecom Group PLC took their case to court.

Their arguments included stating that complying with the Digital Economy Act would be unnecessarily expensive and invade users’ privacy.

After the two providers lost before Justice Kenneth Parker in the High Court of Justice, they appealed the decision.

The three-judge panel of the Court of Appeal, in its 6 March decision, endorsed Justice Parker’s decision, however.

The case, British Telecommunications and TalkTalk v Secretary of State for Culture, Olympics, Media and Sport et al [2012] EWCA Civ 232, is available at www.judiciary. gov.uk/Resources/JCO/Documents/Judgments/r-btand-talktalk-v-ss-for-culture-and-others.pdf. LT

LAWTALK 792 / 30 MARCH 2012

7

PEOPLE IN THE LAW

ON THE MOVE

Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. You may also send photos (preferably colour) in hard copy, on disk or by email in JPG format scanned at 300dpi. Items should be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, tel (04) 463 2982, fax (04) 463 2985, email editorial.lawtalk@lawsociety.org.nz. The usual editorial discretion applies.

Two lawyers have joined Tompkins Wake Lawyers recently. Commercial lawyer Phillip Monahan has rejoined the firm as a senior associate in the commercial and corporate team after a period in London. His recent experience includes mergers and acquisitions, joint ventures, restructuring businesses, corporate governance and banking and finance. Kylee Jacobsen, who has returned to the Waikato from Auckland, has been appointed as a solicitor, also in the commercial and corporate team. The firm has also made three new senior appointments within its local government and environment team. Theresa Le Bas has been promoted to partner.

She specialises in resource consent applications, notices of requirement for designations, contaminated site management and advisory work.

Bridget Parham and Marianne Mackintosh have both been appointed senior associates. Both are experienced in environmental,

planning and resource management law with local government clients.

Two lawyers recently joined Chen Palmer, who have also promoted a lawyer. Marina Matthews, formerly an intermediate associate for the firm, has been appointed senior associate. Marina is also leader of the education legal team and coleader of the working with government

team. Amanda Hyde and Pratima Namasivayam have been appointed associates in the public law team.

Amanda was previously working as in-house counsel at the Ministry of Justice. She has particular expertise in administrative law, privacy and human rights law, and has worked on negotiations under the Foreshore and Seabed Act 2004. Pratima joins Chen Palmer after working at the Ministry of Agriculture and Forestry, Ministry of Fisheries and Ministry of Justice. She has particular expertise in public policy, law reform and public law across a range of government portfolios.

Rohan Havelock is now practising as a barrister in civil and commercial litigation and

8

LAWTALK 792 / 30 MARCH 2012

has been appointed a lecturer in commercial law at the Auckland University Law Faculty. Rohan’s practice areas and research interests include insurance law, construction law, equity and restitution. Rohan was formerly a senior associate with Bell Gully in Auckland, practising in general commercial litigation.

Richard Pidgeon has joined his sister Joanna Pidgeon at Pidgeon Law as a litigation partner. He has a general civil litigation practice comprising commercial, property, administrative and family law dispute resolution, as well as providing advice on governance issues, particularly in the charitable sector.

Lisa Preston has joined Crown Law as Crown Counsel in the criminal team, following her secondment from the Christchurch Crown Solicitor’s office, Raymond Donnelly & Co. Lisa’s practice has primarily been as a crown prosecutor.

Lani Inverarity has joined Crown Law as an assistant Crown Counsel in the human rights team.

After graduating from Victoria University, Lani spent two years as clerk to Justices Gendall and Joe Williams in the High Court at Wellington.

Mia Gaudin has joined Crown Law as an assistant Crown Counsel in the treaty issues and international law team. Mia has come to Crown Law from Rotorua where she was the judges’ research counsel at the District Court.

Checketts McKay Law Ltd has promoted Rebecca Karamaena (nee Checketts) to the position of associate.

Her main areas of practice include commercial property and advice, asset protection, trusts, wills and estate planning, residential and commercial conveyancing as well as a special focus on resource management.

Rhodes & Co has made several senior appointments.

George Forbes has returned to New Zealand and joined the firm as a consultant.

He specialises in corporate and commercial law. George previously worked at law firms including Bell Gully and Clifford Chance in London.

He also spent six years with The Bank of New York Mellon where he was the chief international corporate counsel and a managing director. Ed Bayley has been promoted to associate. Ed rejoined Rhodes & Co in late 2010 after completing his MSt at Oxford University.

Ed has commercial litigation experience. He also assists with business acquisitions, capital raising, receiverships, liquidations and other commercial dealings.

Andrew Tait has been promoted to associate. Andrew joined the firm in June 2009 and specialises in commercial law, property development and subdivisions.

PEOPLE Auckland Council has reappointed Auckland barrister Rabin Rabindran to the Board of Auckland Transport for a further threeyear term. Mr Rabindran was appointed an initial director of the council-controlled organisation by the Ministers of Transport and Local Government when the super city was formed in October 2010. Under the Land Transport Management Act 2003, Auckland Transport is responsible for preparing the Regional Land Transport Programme (RLTP) which includes trains, trucks, cars, ferries, buses, walking and cycling and Mr Rabindran has been appointed chair of the 20122015 RLTP Public Hearings Panel.

Principal Family Court Judge Peter Boshier is not expected to leave his present position soon. “It has been suggested that Judge Boshier is expected to shortly

leave his present position because his term has expired. This is incorrect,” Chief District Court Judge Jan Doogue says. “Judge Boshier is not subject to a fixed term of appointment, as his eventual successor, in accordance with statute, will be. In the meantime, Judge Boshier continues to head the Family Court with the full support of his colleagues on the bench. When in time he leaves his position, it will be after an appropriate process of consultation within the judiciary and the government.”

Law Commissioner John Burrows QC will receive an honorary doctorate from Canterbury University during the university’s graduation ceremonies on 24 and 27 April. The first time a New Zealand academic lawyer was made a QC when he took silk in 2005, Professor Burrows graduated from Canterbury University with an LLM in 1964. He later returned to the university, where he taught for almost 40 years. He gained a PhD from the London School of Economics in 1966.

On retiring from teaching, he was appointed a Law Commissioner for five years in February 2007. This year’s honour is the latest in a series he has received from the university, including being appointed Emeritus Professor after his retirement. LT

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CONTACT FRANK NEILL editor @lawsociety.org.nz

LAWTALK 792 / 30 MARCH 2012

9

A SNAPSHOT OF THE NEW ZEALAND

LEGAL PROFESSION

As regulator of the New Zealand legal profession, the New Zealand Law Society is responsible for issuing practising certificates. LawTalk has used some of the resulting information and material we have obtained from other sources to give a picture of the makeup of the legal profession at March 2012.

01

Who is currently holding practising certificates?

PRAcTISING cERTIFIcATES ON ISSuE – by LAW SOcIETy bRANcH BRANCH

BARRISTER

TOTAL BARRISTER

TOTAL B&S

B&S

TOTAL LAWYERS

% MALE

%

FEMALE

TOTAL AUCKLAND

49 8

30 0

798

2369

19 5 4

4 323

2 867

2254

512 1

5 5.0 %

4 4.0%

CANTERBURY WESTLAND

76

39

115

57 9

4 31

1 01 0

655

470

112 5

5 8.2 %

41.8%

GISBORNE

1

1

2

30

22

52

31

23

54

57.4%

4 2.6%

HAWKE’S BAY

23

4

27

12 6

74

200

1 49

78

227

6 5.6%

3 4.4%

MANAWATU

11

3

14

80

51

1 31

91

54

145

62.8%

37.2%

MARLBOROUGH

4

1

5

29

21

50

33

22

55

6 0.0 %

4 0.0%

NELSON

8

3

11

90

54

144

98

57

15 5

63.2 %

3 6.8%

OTAGO

27

21

48

19 6

176

372

223

197

420

53.1 %

4 6.9 %

SOUTHLAND

1

0

1

74

55

129

75

55

13 0

57.7 %

4 2.3%

TARANAKI

6

3

9

78

63

1 41

84

66

15 0

5 6.0 %

4 4.0%

WAIKATO BAY OF PLENTY

88

67

155

47 7

3 83

86 0

565

450

1015

5 5.7 %

4 4.3%

WELLINGTON

152

75

22 7

1174

12 3 5

24 09

132 6

1310

2 63 6

5 0.3%

49.7 %

WHANGANUI

2

1

3

39

17

56

41

18

59

6 9.5%

3 0.5%

TOTAL NEW ZEALAND

897

518

1 415

5 341

4 5 36

9 87 7

623 8

5 05 4

11,2 92

5 5.2%

4 4.8%

OVERSEAS

35

6

41

1 93

1 78

37 1

228

184

41 2

5 5.3%

4 4.7 %

932

524

1 456

5 5 34

47 1 4

1 0,24 8

6466

5 23 8

11,704

5 5.2%

4 4.8%

TOTAL

“B&S” = Barrister and Solicitor.

10 LAWTALK 792 / 30 MARCH 2012

A SNAP SHOT OF THE NZ LEGAL PROF ESSIO N

02

What’s changed in the profession’s composition?

Like all professions, the legal profession has undergone major change in the last few decades. Demographically, there have been major shifts in the proportion of women practising law, a growth in barristers sole (which has now flattened out), increasing numbers of lawyers working as in-house counsel and a drop in the proportion of lawyers who are principals. The trends since 1990 can be shown as follows:

44.8% 39% 34% 27% 20.8%

% OF WOMEN HOLDING PRACTISING CERTIFICATES AS PROPORTION OF TOTAL HELD Women make up well over half of new entrants to the profession and the proportion of female lawyers continues to increase.

% OF BARRISTERS HOLDING PRACTISING CERTIFICATES AS PROPORTION OF TOTAL HELD The rapid growth in barristers has slowed now.

1990

1995

8.4%

2000 2005

2012

12.6%

12.4%

2000 2005

2012

11.3%

4.5%

1990

1995

49.4% 42.6% 37.3% 31.5%

30.7%

2000 2005

2012

% OF PRINCIPALS HOLDING PRACTISING CERTIFICATES AS PROPORTION OF TOTAL HELD “Principal” covers lawyers who are qualified to practise on own account.

The sharp decline in the proportion of principals continues.

% OF IN-HOUSE LAWYERS HOLDING PRACTISING CERTIFICATES AS PROPORTION OF TOTAL HELD CLANZ, the Law Society’s section for in-house lawyers, was established in 1987.

The proportion of lawyers employed as in-house counsel continues to rise.

1990

1995

19% 12%

20.1%

13.3%

N/A 1990

1995

2000 2005

2012

LAWTALK 792 / 30 MARCH 2012

11

A SNAP SHOT OF THE NZ LEGAL PROF ESSIO N

bARRISTERS

New Zealand’s lawyers can be grouped into three areas of practice.

Two-thirds are barristers and solicitors who either practise on own account or in a law firm.

GENDER:

yEARS IN PRAcTIcE:

LOcATION:

12.4% OF NZ LAWyERS

51.4%

36% 27.3% 25.9%

64% 22.4%

GENDER:

7.6%

AVERAGE yEARS IN PRAcTIcE: 22.9

LOcATION:

yEARS IN PRAcTIcE:

43.9%

42.8%

20.1% OF NZ LAWyERS

35.4%

In-house lawyers make up 20.1% of New Zealand lawyers. Female in-house lawyers comprise 26.2% of all female lawyers, while male in-house lawyers comprise 15.2% of all male lawyers. Over three-quarters of inhouse lawyers are located in two cities.

58.2%

37.2%

41.8% 13.7%

GENDER:

EMPLOyMENT STATuS & GENDER:

67.5% OF NZ LAWyERS 42.4%

Barristers and solicitors working in law firms make up 67.5% of New Zealand lawyers.

42.5%

57.6%

OF MALE b&S ARE PARTNERS/ DIREcTORS

13.4% 5.7%

15.9%

OF FEMALE b&S ARE PARTNERS/ DIREcTORS

11-20

1-10

2.7%

CHCH HAM ELSEWHERE

WGTN

4.3%

bARRISTERS & SOLIcITORS

21-30 31-40 41+

1-10

5.3%

0.9%

21-30 31-40 41+

IN-HOuSE LAWyERS

7.4%

CHCH HAM ELSEWHERE

SPEcIALIST AREAS OF PRAcTIcE: Criminal law – 21.2%; Civil litigation – 18.5%; Family law – 14.3% (barristers spending more than 50% of their time practising in this area).

WGTN

ALKD

13.5%

19.4%

19.8%

11-20

Barristers make up 12.4% of New Zealand lawyers. Over three-quarters of our barristers are located in four cities.

While two-thirds overall are male, 44% of barristers who have been admitted for 10 years or less are female.

ALKD

03

Types of practice.

AVERAGE yEARS IN PRAcTIcE: 14.2

PRINCIPALS – a principal is a lawyer qualified to practise on own account (ie, partners, directors and sole practitioners).

77.0% of principals are male; 23.0% of principals are female.

AVERAGE yEARS IN PRAcTIcE:

EMPLOYEES: 9.9 yEARS 50.2% of all employees have been in practice for 5 years or less.

EMPLOyMENT:

EMPLOYEES PARTNERS

12

SOLE PRACTITIONERS DIRECTORS BETWEEN JOBS LAWTALK 792 / 30 MARCH 2012

PARTNERS/DIRECTORS: 25 yEARS

53.6%

37.9% of all partners and directors have been in practice for more than 31 years.

25.7% 14% 5.5% 1.2%

38.6%

OF MALE b&S ARE EMPLOyEES

73.9%

OF FEMALE b&S ARE EMPLOyEES

SOLE PRACTITIONERS: 28.4 yEARS 44.7% of all sole practitioners have been in practice for more than 31 years.

A SNAP SHOT OF THE NZ LEGAL PROF ESSIO N

04

How many years have our lawyers been in practice?

THE AvERAGE NUMBER OF YEARS SINCE ADMISSION FOR ALL LAWYERS IS 17.4 YEARS.

Information held by the Law Society shows the year in which lawyers were admitted as a barrister and solicitor of the High Court of New Zealand. This illustrates the changing gender balance and also shows that in-house lawyers tend to have been in practice for a relatively short time.

yEARS SINcE ADMISSION 0-10 years

11-20 years

21-30 years

31-40 years

41+ years

ALL LAWYERS

4 0.7 %

24.8%

16.3%

13.2 %

5.0%

MALE LAWYERS

2 9.9%

2 1.9 %

18.7 %

2 0.5%

9.0%

FEMALE LAWYERS

54.0 %

2 8.4%

13.2 %

4.2 %

0.1 %

BARRISTERS

19.8%

2 7.3%

2 5.9 %

19.4%

7.6%

IN-HOUSE LAWYERS

42.8%

37.2 %

13.4%

5.7 %

0.9 %

EMPLOYED BARRISTERS & SOLICITORS

73.4%

1 4.6%

4.8%

3.8%

3.3%

PARTNERS & DIRECTORS

9.5%

31.4%

2 7.8%

24.0 %

7.3%

SOLE PRACTITIONERS

7.2 %

2 0.0 %

2 8.1 %

33.3%

11.3%

LAWyERS cuRRENTLy PRAcTISING by ADMISSION yEAR

0.9%

99.1%

20.3%

79.7%

39.2%

60.8%

56.7%

43.3%

2010

2000

1990

1980

1970

For example: 0.9% of lawyers currently practising who were admitted in 1970 are women.

59.4%

LAWTALK 792 / 30 MARCH 2012

40.6%

13

A SNAP SHOT OF THE NZ LEGAL PROF ESSIO N

05

Admission.

New lawyers are admitted to the profession throughout the year. As noted in our Snapshot last year, two clear trends are apparent: the number of new entrants as a proportion of the number of lawyers in practice is declining, and the proportion of women admitted as lawyers continues to increase (although this fell for the first time in 2011).

More women have been admitted than men each year since 1993.

1980

1990

ADMISSIONS = 388

ADMISSIONS = 491

ENTRANTS/LAWyERS IN PRAcTIcE = 9.7% WOMEN ADMITTED 102 = 26.3%

ENTRANTS/LAWyERS IN PRAcTIcE = 8.3% WOMEN ADMITTED 225 = 45.8%

2000

2005

ADMISSIONS = 845

ADMISSIONS = 883

ENTRANTS/LAWyERS IN PRAcTIcE = 10.2% WOMEN ADMITTED 485 = 57.4%

ENTRANTS/LAWyERS IN PRAcTIcE = 8.8% WOMEN ADMITTED 540

2009

2010

ADMISSIONS = 765

ADMISSIONS = 892

ENTRANTS/LAWyERS IN PRAcTIcE = 7.2% WOMEN ADMITTED 477

ENTRANTS/LAWyERS IN PRAcTIcE = 7.9% WOMEN ADMITTED 561

= 62.4%

2011

ADMISSIONS = 796 ENTRANTS/LAWyERS IN PRAcTIcE = 6.9% WOMEN ADMITTED 483

14

LAWTALK 792 / 30 MARCH 2012

= 60.7%

= 61.2%

= 62.9%

A SNAP SHOT OF THE NZ LEGAL PROF ESSIO N

06

Lawyers by location.

New Zealand has one lawyer for every 390 citizens (excluding lawyers based overseas). Wellington City stands out, with one lawyer for every 88 citizens (which is still nowhere near the Avery Index’s astonishing rate for the District of Columbia in the United States of one lawyer for every 36 citizens). Like the District of Columbia, Wellington’s relatively high rate is driven by a high number of government and in-house lawyers.

PLAcES WITH THE MOST LAWyERS AucKLAND

WHANGAREI

4857 – 43% OF NZ-BASED LAWYERS

115 - 1%

TAuRANGA 257 - 2.1%

HAMILTON

ROTORuA

419 - 2.4%

127 - 1.1%

NEW PLyMOuTH

NAPIER

120 - 1.1%

115 - 1%

PALMERSTON NORTH 112 - 1%

WELLINGTON 2277 - 20.2%

NELSON 147 - 1.3%

LOWER HuTT 167 - 1.6%

cHRISTcHuRcH 962 - 8.5%

DuNEDIN 274 - 2.4%

INVERcARGILL 116 - 1.1% NEW ZEALAND LAWyERS OVERSEAS At 1 March 2012 there were 412 lawyers holding a New Zealand practising certificate who were based overseas. Of these 167 were based in England, 86 in Australia, 32 in Hong Kong, 23 in Dubai and 19 in Singapore. The most popular city was London, with 161 New Zealand lawyers, followed by Sydney (28) and Melbourne (23).

LAWTALK 792 / 30 MARCH 2012 15

A SNAP SHOT OF THE NZ LEGAL PROF ESSIO N

07

Lawyers by location Density.

PLAcES WITH HIGHEST PROPORTION OF LAWyERS PER HEAD

PLAcES WITH LOWEST PROPORTION OF LAWyERS PER HEAD

KERIKERI

WELLSFORD

1 PER 198

1 PER 340

WARKWORTH 1 PER 194

AucKLAND 1 PER 306

TOKOROA

KAWERAu

1 PER 1489

1 PER 7000

TAIHAPE MOTuEKA

WAIROA

1 PER 2000

1 PER 4300

1 PER 1800

WELLINGTON

MOST EXPERIENcED cENTRES

1 PER 88

Excluding centres with fewer than 15 lawyers, the locations with the highest proportion of lawyers who have been in practice for 40 years or more are Levin (29.4% of all lawyers), Paraparaumu (27.3%), Warkworth (16.7%), Masterton (16.0%), Timaru (14.5%) and Wanganui (12.0%).

uPPER HuTT 1 PER 1431

cHRISTcHuRcH 1 PER 382

QuEENSTOWN 1 PER 339

ALEXANDRA 1 PER 237 FRESHEST FAcES

16

LAWTALK 792 / 30 MARCH 2012

Again excluding centres with fewer than 15 lawyers, the locations with the highest proportion of lawyers who have been in practice for 5 years or less are Waikanae (38.9% of all lawyers), Whakatane (34.3%), Invercargill (31.0%), Cambridge (30.4%), New Plymouth (28.3%), Wellington (27.9%), Rotorua (26.8%) and Auckland (25.5%).

A SNAP SHOT OF THE NZ LEGAL PROF ESSIO N

08

Areas of practice.

The areas of practice where most lawyers spend over half their time are as follows:

SPEcIALIST AREAS OF PRAcTIcE

COMPANY/COMMERCIAL 12.3% OF LAWyERS

When applying for or renewing their practising certificate, lawyers are asked to provide information on the proportion of time spent in each of 23 areas of practice. Provision of this information is voluntary. Of the 11,704 practising certificates on issue in March 2012, 9105 holders supplied information on their areas of practice (77.8%). The information in this section is therefore indicative only.

CRIMINAL LAW 6.6%

RESOURCE MANAGEMENT 2.8%

CIvIL LITIGATION 9.2%

PROPERTY 11.1%

TAx 2.5%

FAMILY LAW 7.6%

OTHER SPECIALIST AREAS (13) 11%

TRUSTS AND ESTATES 2.6% ADMINISTRATIvE LAW EMPLOYMENT LAW 2.2% 3.2%

AREAS OF PRAcTIcE WHERE SOME TIME IS SPENT

NO SPECIALIST AREAS 28.9%

This shows the proportion of lawyers who spend at least some time practising an area of law:

COMPANY/COMMERCIAL 49% OF LAWYERS PROPERTY LAW 41.6% CIvIL LITIGATION 36.4% TRUSTS AND ESTATES 35.5% FAMILY LAW 30% CRIMINAL LAW 21% ADMINISTRATIvE LAW 16.8% INTELLECTUAL PROPERTY 14.9% RESOURCE MANAGEMENT 14.7%

SPEcIALIST PRAcTIcE by GENDER

The information collected shows that there are noticeable differences in the types of law which men and women specialise in.

AREAS WHERE MORE WOMEN SPEcIALISE (IE, OVER 50% OF TIME SPENT IN AREA) FAMILY LAW 70.3% OF SPECIALISTS ARE WOMEN

AREAS WHERE MORE MEN SPEcIALISE ARBITRATION 78.6% OF SPECIALISTS ARE MEN

HEALTH LAW 63%

BANKING AND FINANCE 68.9%

RESOURCE MANAGEMENT 51%

IMMIGRATION 68.1%

ADMINISTRATIvE LAW 50.3%

PROPERTY LAW 67.3% CIvIL LITIGATION 65% COMPANY/COMMERCIAL 65%

LAWTALK 792 / 30 MARCH 2012

17

A SNAP SHOT OF THE NZ LEGAL PROF ESSIO N

09 ETHNIcITy

Ethnicity, salaries, smoking & other matters.

To further fill out our picture of New Zealand lawyers, we’ve summarised some other information which has been gathered over the past year. All of this information can be found in various parts of my. lawsociety.

An investigation by LawTalk in September 2011 used information provided by Statistics New Zealand from the 2006 census to estimate the proportion of Māori lawyers in New Zealand. The data, for 9,081 people who reported their occupation as “barrister” or “solicitor”, showed the following ethnicities:

EUROPEAN 77.6% OF LAWYER POPULATION

PACIFIC PEOPLES 1.9% OF LAWYER POPULATION

67.6% OF NZ POPULATION

6.9% OF NZ POPULATION

ASIAN 5.7% OF LAWYER POPULATION

MIDDLE EASTERN/ 0.4% OF LAWYER POPULATION LATIN/AFRICAN 0.9% OF NZ POPULATION

9.2% OF NZ POPULATION MAORI 5.4% OF LAWYER POPULATION

OTHER ETHNICITY 15.6% OF LAWYER POPULATION

14.6% OF NZ POPULATION

10.7% OF NZ POPULATION

Note that the data doesn’t neatly add to 100% as some people indicated more than one ethnicity. “Other ethnicity” is almost entirely made up of people who stated “New Zealander”.

LEGAL AID

Ministry of Justice figures show that at 30 June 2011, 2,796 lawyers were listed as legal aid providers. This is 23.9% of the number of practising certificates currently on issue. At 31 December 2011, the ministry reported that it had received 1,927 applications for listing as legal aid providers – 16.5% of practising certificates currently on issue.

VOLuNTARy cONTRIbuTIONS SALARIES

The New Zealand Community Law Centre report for the 2010/11 financial year showed that there were a total of 20,562 collective volunteer hours provided by lawyers and students in the centres during the year. This assisted 144,330 people, with 40% of the time involved in providing legal advice and 34% on providing legal information.

The New Zealand Law Society/Momentum Legal Salary Survey in October 2011 generated a lot of data from over 1,100 participants. Some key indicators:

Average salaries, all New Zealand YEARS SINCE ADMISSION

LARGE FIRMS

OTHER FIRMS

IN-HOUSE PRIVATE

IN-HOUSE PUBLIC

2

$ 53,20 0

$ 45,50 0

$6 5,0 0 0

$ 51,4 0 0

5

$ 82,40 0

$67,20 0

$102,70 0

$7 1,0 0 0

9

$128,70 0

$105,8 0 0

$16 9,0 0 0

$ 97,0 0 0

SMOKING Lawyers and judges are relatively light smokers, according to a University of Otago, Wellington study released in December 2011. This analysed data from the 1981 and 2006 censuses on a number of “role model” occupational groups to get a crude smoking prevalence rate. A few of the results:

18

LAWTALK 792 / 30 MARCH 2012

SATISFAcTION WITH EMPLOyMENT The New Zealand Law Society/Momentum Legal Salary Survey 2011 also asked about employment satisfaction. Some key indicators: 35% of survey respondents were considering leaving their current organisation within the next 12 months.

47% of respondents were satisfied with their remuneration.

71% of respondents enjoyed working for their current employer.

GROUP

1981

2006

LAWYERS AND JUDICIARY

19.4%

7.8%

DOCTORS

1 4.2 %

3.6%

MEMBERS OF PARLIAMENT

2 0.0 %

11.4%

POLICE

31.3%

1 2.6%

ACTORS/DANCERS/SINGERS

41.7 %

21.2%

PRISON OFFICERS

47.8%

28.2%

ALL OCCUPATIONS

35.3%

2 1.7 %

A SNAP SHOT OF THE NZ LEGAL PROF ESSIO N

10

To help round out our snapshot, we include some information on the New Zealand judiciary. This has been gathered mainly from Ministry of Justice websites and shows the state of the judiciary appointed to the superior courts and District Courts at 8 March 2012. The statistics for High Court judges include Associate Judges and warranted judges serving in other roles.

The Judiciary.

GENDER SUPREME COURT – 5 MALE, 1 FEMALE

COURT OF APPEAL – 8 MALE, 2 FEMALE

83%

17%

80%

HIGH COURT – 35 MALE, 11 FEMALE

20%

DISTRICT COURTS – 104 MALE, 43 FEMALE

76%

24%

71%

OvERALL JUDICIARY –152 MALE, 57 FEMALE

29%

ELIGIBLE FOR APPOINTMENT*

73%

27%

39%

61%

* The legal profession as a whole is 55% male lawyers and 45% female lawyers. This has been adjusted to exclude all lawyers who have been admitted for less than 7 years (the minimum time a lawyer must be in practice to be eligible for appointment to the judiciary).

uNIVERSITy WHERE FIRST LAW DEGREE cOMPLETED UNIVERSITY

SUPREME

APPEAL

HIGH

TOTAL

AUCKLAND

3

5

20

28

CANTERBURY

2

0

6

8

OTAGO

0

0

6

6

VICTORIA

1

5

14

20

TOTAL

6

10

46

62

Information is not available for all District Court judges and they have been excluded.

LENGTH OF APPOINTMENT* TENURE

JUDGES

% TOTAL

21 YEARS OR MORE

7

3%

16 – 20 YEARS

37

18%

11 – 15 YEARS

42

20%

6 – 10 YEARS

65

31%

0 – 5 YEARS

58

28%

*This covers time since first appointment to any court

QuEEN’S cOuNSEL ON APPOINTMENT TO JuDIcIARy Supreme Court – 67% (4) Court of Appeal – 60% (6) High Court – 33% (15) District Courts – 3% (4)

For the record, New Zealand’s longestserving members of the judiciary are Tipping J (26 years), Keane J (25 years), Ronald Young J (24 years) and Principal Family Court Judge Boshier (24 years).

Keane J and Ronald Young J were initially appointed District Court Judges.

AVERAGE TIME AS A JuDGE* Supreme Court – 17.2 years Court of Appeal – 10.8 years High Court – 8.9 years District Courts – 9.8 years All Judges – 9.8 years *This covers time since first appointment to any court

LAWTALK 792 / 30 MARCH 2012

19

Minister very keen to work with profession Lots of lawyers have lots of really good ideas on how to improve the justice system, Justice Minister Judith Collins says.

“We are really keen to talk to the judiciary, too, about some of the ways they think we can save time and … as lawyers know, time is money.”

Seeking the opinions of lawyers and the judiciary emerged as one of the main themes the minister traversed during an interview with LawTalk this month.

One thing she is “really keen to do”, she says, “is to make sure that the Ministry of Justice works in a way which is better with the legal profession and the judiciary. And I am concerned to make sure that we see the legal profession and the judiciary as part of the justice sector rather than government versus profession. That’s not particularly helpful, in my opinion, for getting the best outcomes for people who have to use the sector.”

“I am very keen to work with the legal profession,” she said, “because what I find when I talk to lawyers is that most of them have a very good idea of how to improve things.

“They want to be listened to, and I want to listen.”

When asked if that meant she would be asking lawyers how money could be saved in the justice sector, Ms Collins says: “Most lawyers know how to save money”.

She has “some ideas” on the question, and is talking with the Law Society and others, including the New Zealand Bar Association, about some of these ideas that she wants to put into practice.

“What we need to understand is that sometimes it’s around things like processes. Sometimes it’s around the way in which we impose administration costs on lawyers so, for instance, one of the things I think we can do is look in terms of things like legal aid and say ‘how can we stop the administration being such a pain in the neck for people?’

“I certainly remember it being a pain in the neck and very costly.”

“We also know that sometimes there are processes that were required by a court 20 years ago and no one’s ever changed it. These processes are timeconsuming, they are not effective and they don’t lead to any better outcomes, but that was the way it was done.

Work in that area this year is going to be a “big focus” for her, Ms Collins says.

Justice sector leadership As Justice Minister, Ms Collins now has the sector leadership role, and that includes Police, Corrections, the Serious Fraud Office, Attorney-General, Crown Law and Courts.

“So there’s an emphasis on living within the justice sector’s budget.” It is also about making the best use of not just money, but people, buildings and computer systems to be as effective and as accessible as possible.

Earthquake lessons The justice sector would be learning from Christchurch after the earthquake “where we found that we didn’t have to have different buildings for various things”, the Minister says.

Corrections, the police and courts worked very well together following the earthquake and all the agencies found the experience of working together “better than working in silos”.

Family Courts review

Commercial disputes

An example of that, Ms Collins says, lies in the work being done on the Family Courts.

The Minister talked about the increasing number of commercial disputes being played out in an informal justice system, including arbitrations and mediations.

“How do we best meet the needs of children in the Family Court? Are we doing so at the moment?”

Having practised for more than 20

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LAWTALK 792 / 30 MARCH 2012

“So I am very keen to work with them following this review of the Family Court to see how we can actually come up with a system that is going to be better focused on what the Family Court was first set up to do.”

The chief executives of those organisations are now looking at how they could use and replicate this around the country with the aim of making justice more accessible to people.

Providing professional indemnity and specialist insurance products to the legal profession

20

“And the resolution of relationship issues has not always been best served by charging into court. I know there are a lot of practitioners who feel that and I know there are plenty of judges who feel that too.

That focus on accessibility will be very much around use of technology and freeing up ways to do things, and there may well be some papers and discussion in this area.

JUSTITIA or contact:

years before she came into Parliament “I do actually have some knowledge of these things and my view, very firmly is that in some cases … the Family Court and the systems that were built around it have not always worked in the best interests of children.

Commercial litigants often see the process as too expensive, too unsure and very adversarial, while in a mediation they had input into what was going to happen and their privacy was protected.

That was something they valued. The less adversarial approach meant there was a better prospect that the parties could continue doing business after the dispute was resolved.

“I’m not going to be the person who says you can’t have arbitrations and mediations,” she says.

However, the decrease in commercial disputes going to court was a problem in that “we have a decreasing amount of case law coming into the courts.”

Judith Collins lawyer Two decades practising as a lawyer, three relevant degrees and involvement in the legal profession at a political level is among the experience Judith Collins brings to her portfolio of Minister of Justice.

As well as creating its own uncertainty for other commercial players, it was not allowing the fulfilment of one of the roles of courts “which is actually to find certainty and clarity around the interpretation of statute. So I think that’s an issue that we need to address in some way.”

After graduating LLB from Auckland University in 1980, Ms Collins joined Subritzky Tetley-Jones & Way in 1981, moving from there to Simpson Grierson Butler White in 1984. Two years later, she moved to Morton Tee Collins & Co, where she was a partner from 1986 to 1989.

Quality of legal services There are, Ms Collins says, questions around quality of service in the legal profession, “and that’s an issue that we take very seriously.

“I’ve spoken to the New Zealand Law Society about the complaints process, how that’s working, some of the issues that have been raised with me by both practitioners and by clients of practitioners.” And the Law Society was reporting to her on what it was doing.

“I think it’s incredibly important that we maintain confidence in the legal profession and the quality of the service provided to clients who, in many cases, are not well placed to judge the quality of the service that they are getting.”

Access to justice Another area was providing people with better access to legal advice, particularly people who don’t have the money to pay for advice, so that “at

Drug courts have huge promise Two initiatives with “huge promise” to both save money and reduce offending were outlined by Justice Minister Judith Collins when she spoke to LawTalk this month.

One is the new drug courts, which will begin a trial programme in Auckland this year, and the other is the Police’s “Prevention First” programme.

Prevention First has, in terms of preventative policing, “pretty much proven itself” in the Counties Manukau area, Ms Collins said.

Now the police were rolling it out around the country under the leadership of Deputy Commissioner Mike Bush.

It was based on the common-sense idea that “wouldn’t you rather prevent

least they are put in the right direction”.

The service “might be” a 24-7 or a 14 hours a day line that people can go to for help.

This agenda, Ms Collins says, is a big one, and it is also running alongside other issues, such as around 35 pieces of legislation she has at the moment. This includes the Search and Surveillance Bill, which she must get through in the next few weeks “or else the police have got to turn off all the cameras they’ve got watching methamphetamine labs, so it’s important to do that as well.” LT a crime, than wait until there’s a victim and pick up the pieces afterwards”.

It is also about “smart policing”, increasing front-line hours and use of technologies.

“We want to trial [drug courts] for five years to see if it really does have an effect on recidivism.

“We’re not talking about huge numbers going through them. It is hugely intensive and very expensive.”

However, it has the potential to save a lot of money.

If the drug court trial did turn out as hoped, the court could well be mainstreamed.

Currently “we are seeing decreasing numbers coming through our court system, particularly in the criminal court system.

The crime rate is now down to the levels that it was in 1982. “We are, for the first time, seeing significant drops in the

In 1989 and 1990, she was an associate at Peak Rogers before establishing her own firm, Judith Collins & Associates, which she ran for the decade to 2000.

During this time, she gained an LLM (Hons) and MTaxS, both from Auckland University.

In 1991 and 1992, Ms Collins was secretary of the Auckland Women Lawyers’ Association. She was a Council member of the Auckland District Law Society from 1993 to 1997, Vice-President in 1997 and President in 1998-1999.

She was a New Zealand Law Society Board member from 1996 to 1998, and was Vice-President in 1999.

From 2000 to 2002 she was a special counsel for Minter Ellison Rudd Watts.

During her time in the law, Ms Collins has practised property, commercial, family, taxation and employment law. While running her own firm, she had staff working in criminal and family law, particularly on legal aid. LT

prison population, the first significant drop since the 1930s and we have a much bigger focus on rehabilitation,” the Minister said.

With the drug courts starting up as a trial this year and with the Police focus on prevention this should mean fewer people coming through the court system.

“It is already starting to have its effect and this should mean that now is really time to look at how we deliver in the courts system and look at making use of technologies,” she said. LT

LAWTALK 792 / 30 MARCH 2012

21

LE T TERS TO THE EDITOR

Project management

NZLS CLE Ltd replies

My attention was drawn to the NZLS CLE Ltd calendar in edition 789 and whilst the events chronicled cover off most if not all the major legal practice issues facing practitioners for 2012 there would appear to an operational area that has been overlooked – practice management.

We are always looking for ways and opportunities to provide these kinds of programmes and will continue to do so with the hope that they will attract sufficient numbers.

Statistics New Zealand can confirm the practice of law generated some $2.6 billion of economic activity in the last full financial yet apart from presentations on “Time Mastery” and “Stepping Up” (AKA son of “Flying Start”) the programme is devoid of anything designed to give practitioners assistance in optimising the business side of legal service delivery.

Where are the sessions on meeting and exceeding financial management standards, anti-money laundering, business development/marketing, succession planning, client relationship management and the host of options available in other jurisdictions?

NZLS CLE is mindful of the issues raised by Ashley Balls in his letter to the editor.

A number of our two-day biennial conferences have included sessions on such things as succession planning, better billing practices and building the right kind of environment and culture in your business.

Disappointingly, in 2009 a two-day conference on Law as a Business was cancelled through lack of interest. The conference covered all the topics Ashley referred to, and had a line-up of 17 presenters, all of whom were leaders in their respective fields.

New fees framework

If it is acknowledged that these form part of the panoply of skills lawyers require to fully satisfy client need, where are seminars and workshops?

As a family law legal aid provider, I wish to express one of my views on the proposed new fees framework for payments to family legal aid lawyers.

It is to be hoped that a full mandatory regime can address what some may consider a deficiency. Surely we do not need to be reminded that the most important feature of a law practice is the client.

I have undertaken a quick comparison, for relationship property proceedings, of the current guideline hours, with the proposed fixed fees framework.

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LAWTALK 792 / 30 MARCH 2012

Under the current guideline hours, in order to undertake the first step of relationship property proceedings (and without taking into account any additional activities at that step), up to a total of 14 hours is allocated. At a level 3 rate of $134 (plus GST) per hour, a legal aid provider could bill up to $1,876 (plus GST and disbursements) for the tasks involved.

I have found that up to 14 hours is a realistic and reasonable estimate of the time involved in completing those tasks in the vast majority of cases, although it is expected that a few cases may take more time.

Under the fixed fee framework, to undertake exactly the same tasks (and without any additional activities), a legal aid provider at level 3 could expect to bill no more than $570 (plus GST and disbursements). That equates to 4 hours work at $134 (plus GST) per hour.

So, family law legal aid providers at level 3 will be expected to complete tasks for the first step of relationship property proceedings within 4 hours, which under the current guideline hours may take up to 14 hours; and instead of billing up to $1,876 (plus GST and disbursements), will be permitted to bill no more than $570 (plus GST and disbursements). That equates to 28.57% of the time and remuneration that is currently available.

In my opinion, and from my experience, this is all entirely untenable, both from the perspective of quality of service and of the costs of running a practice.

Andrew Jamieson Solicitor

www.facebook.com /mylawsociety

LE T TERS TO THE EDITOR

Discovery

documents for discovery.

All of the great civil litigation breakthroughs in calling powerful interests to account, in vindication of human rights, have been won on the back of discovery. It has been the inability of vested interests to fully conceal their damning documents under the glare of the Peruvian Guano test that has allowed diligent lawyers – like those fighting American tobacco, Australian asbestos, and international toxic waste dumping – to track the documentary trail to its ultimate conclusion.

On a less stratospheric scale, our everyday cases demonstrate time and again the importance of transparency in discovery, whereby one’s opponent is prima facie entitled to all documents which may be of relevance to the matters in issue, without screening or any possible interception of an adversarial party’s judgment as to its usefulness to the opponent.

To be subject to the judgment of one’s opponent is one thing.

To be subject to his or her computer program is beyond the pale.

In his article “Promoting the new discovery rules” (Law Talk 785, 18 November 2011, P2), Andrew King suggests that a cost-effective method of discovery is for lawyers to “come in at the document review stage, after the combination of specialist expertise and sophisticated technology has reduced the volumes for lawyers to review” (our emphasis).

We have to assume this means what it says: lawyers ought to rely on computer software to filter or pre-screen relevant

Deciding whether a document is discoverable (on the new adverse-document test) requires a sound understanding of the matters in issue between the parties, of the other party’s case. How is that to be communicated to the software, and does the software accept the professional duty to treat the parties’ cases equally? It is doubtful that software possesses such an understanding when it filters the documents. What use is lawyer responsibility for discovery obligations when the lawyer may never have seen the pre-screened documents?

It is not clear how using a search engine to filter discoverable documents prior to the lawyer’s inspection sits with the solicitor’s discovery obligations (current High Court Rule 8.19; new High Court Rule 8.13). How can a solicitor ensure that the party fulfils its discovery obligations when the solicitor has checked only the documents that their computer considers to be discoverable?

We acknowledge that discovery can be tedious and is not popular with many in the profession. However, we are fans of discovery − even where it does not deliver the knockout blow, it more often than not re-shapes and hones the case, corrects factual error, enables targeted briefs and trial presentation. It is our experience that the results gained from time spent on discovery well outweigh any costs of it. Putting to one side the merits of changing the test for discoverability from Peruvian Guano to an adverse document test, it is concerning that we may now have to rely on the software of the lawyer on the other side as the gate-keeper of the documents that we are provided in discovery.

Raelene Kelly and Kim Jarvis Kelly Chambers, Dunedin

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LAWTALK 792 / 30 MARCH 2012

23

THE BOOKSHELF BOOK OF THE MONTH

PUBLIC LAW TOOLBOX

By Mai Chen A manual for anyone who wants to achieve an outcome in their dealings with or through the government at all its levels. Mai Chen has long been a proponent of combining traditional legal paths with modern methods of challenging or influencing decisions and her book provides a fascinating range of practical problem-solving tools.

(LexisNexis, March 2012, 978-1877511-88-2, 1050 pages, paperback, $184 (GST incl, p&h excl).

COMPANY LAW IN NEW ZEALAND

By Peter Watts, Neil Campbell, Christopher Hare Reviewed by Andrew Beck* For many years there was a dearth of treatises on New Zealand company law. Farrar and Russell’s Company Law in New Zealand was published in 1985 and related to the Companies Act 1955.

The major reforms introduced by the Companies Act 1993 were only covered in practitioner works such as Morison’s Company Law (Butterworths/LexisNexis), New Zealand Companies and Securities Law (CCH) and Anderson’s Company Law (Brookers/Thomson Reuters) and introductory texts such as Guidebook to Companies and Securities Law (CCH).

While practitioners were relatively well served, there was clearly a need for more in-depth discussion of issues and principles relating to the specifically New Zealand-flavoured law of the 1993 Act. It was only in 2008 that a new academic treatise emerged to fill the gap – Company and Securities Law in New Zealand (Brookers) under the general

24

LAWTALK 792 / 30 MARCH 2012

editorship of John Farrar.

It is in that environment that Lexis-Nexis has published a new treatise: Company Law in New Zealand by Peter Watts, Neil Campbell and Christopher Hare, a welcome addition to the company law library in New Zealand.

The authors state that they have aimed the work at both students and practitioners, although the former will find it too detailed and the latter not detailed enough. This reflects the inevitable tensions confronting a book of this nature. A student wants to know the basics, with emphasis on the topics of interest to the particular lecturer.

A practitioner wants to know the law as stated by the courts, with some pointers as to where there may be room for argument. There are also many areas of company law of importance to practitioners, but which score very low on the scale of academic interest. To meet the needs of both markets is almost impossible.

The book is considerably shorter than Company and Securities Law

by Farrar et al. One reason for this is that it expressly makes no attempt to cover securities law. That is perhaps understandable in that securities law has become a discipline in its own right. There is a very brief discussion of financial reporting requirements, and no discussion at all of the role and liability of auditors. More significantly from the practitioner’s point of view, the treatment of liquidation is severely truncated. While the authors accept that choices have had to be made regarding which topics to include, it is a little surprising that the subject of voidable transactions has been confined to the briefest of discussions while statutory demands are treated in detail; voluntary administration does not even merit a mention.

The emphasis of the book is very much on those topics of academic interest in the traditional discipline of “company law” in a narrow sense. There is extensive discussion of directors’ duties – a quarter of the book is devoted to this topic and it has effectively replaced Directors’ Powers and Duties (LexisNexis, 2009)

by Peter Watts. There are also substantial sections on corporate personality,

company contracting, and shareholder remedies. In each of these areas the law is discussed in detail and the authors express their own views on matters that have given rise to debate.

Practitioners advising company clients on basic legal and compliance issues will probably find this book is not tailored to their requirements. On the other hand, those seeking material to support an argument challenging or developing the law will find much of value in this book.

The authors have performed a valuable service in assembling the law on points of dispute, and setting out alternative positions.

COMPANY LAW IN NEW ZEALAND by Peter Watts, Neil Campbell and Christopher Hare, LexisNexis, October 2011, 978-1877511-58-5, 1020 pages, $171.35 (GST incl, p&h excl). Available in paperback and e-book. *Andrew Beck is a Wellington barrister and convenor of the New Zealand Law Society’s Civil Litigation and Tribunals Committee.

HINDE ON COMMERCIAL LEASES

By GW Hinde Reviewed by Leo Z Liao* This is a hard copy version of Chapter 11 of the Hinde McMorland and Sim Land Law in New Zealand looseleaf service. The purpose of the book is to provide legal practitioners with materials from that chapter in one convenient volume, and thus to provide them with up-to-date practical guidance when facing legal issues concerning commercial leases. This is achieved to a large extent. Many commercial transactions involve leases – not only those directly dealing with land, but also those that do not (eg, business sale and purchase and franchises). Lawyers, especially those who practise in the areas of property/commercial law, will find this book very helpful and convenient in their

THE BOOKSHELF daily practice.

The book fully covers almost everything that might be involved in commercial leases. Many problems that might arise between landlord and tenant in a commercial context are discussed, with practical guidance for their resolution.

The in-depth commentary appropriately refers to the relevant legislation and a wide range of New Zealand, Australian and English cases. It also refers to a variety of secondary materials, including extensive periodical literature and English and Australian textbooks.

The law is stated in accordance with material available up to 11 July 2011. This means the recent and most significant legislation in this area – the Property Law Act 2007 – and some judgments delivered afterwards are included and discussed in the book.

The topics covered are well organised in a logical structure. Chapter 1 briefly describes the relationship of landlord and tenant, essential elements of a lease and the distinction between a lease and a licence, by which the connotation and scope of the concept of lease are precisely conveyed. Chapter 2 discusses types of leases and tenancies. These two chapters provide readers with the big picture of commercial leases, while subsequent chapters go into detailed discussion of each aspect. Chapters 3 to

WHAT’S THE HURRY? URGENCY IN THE NEW ZEALAND LEGISLATIVE PROCESS 1987-2010

14 cover matters that might arise from the “birth” to the “death” of a commercial lease. These are: the creation of leases, rights and obligations (covenants) of the lessor and the lessee, rights of renewal and rights to purchase the reversion, extension/variation of leases, assignment of leases and subleases, mortgage of leases, remedies of the lessor and the lessee during the continuance of the lease, and determination of leases and tenancies.

The multi-levelled index at the end of the book, in addition to the logical structure, makes information on a particular topic easy to find. While the main entries are listed alphabetically, contents related to a main entry are listed together under that main entry as sub-entries in alphabetical order. Each main entry/sub-entry refers to paragraph numbers of the main text.

Such a considerate arrangement helps busy practitioners find the particular information they need more efficiently.

The writing style is also excellent. The main text is provided in separate but co-related and orderly numbered short paragraphs. Each paragraph focuses on a particular subject and is followed by clear and comprehensive references, including case and legislation citations.

It is easy to jump back and forth between the main text and the citations. Although many of the legal concepts and principles concerned are inherently elusive, these

This excellent book is a must read for anyone interested in New Zealand’s constitutional arrangements and how laws are made in Parliament. The book resulted from research funded by the Law Foundation and conducted under oversight of the New Zealand Centre for Public Law and the Rule of Law Committee of the New Zealand Law Society. The acknowledgment of the debt of gratitude by the authors to the Law Foundation can only be endorsed by those with an interest in legal research in New Zealand. Without the Law Foundation, empirical research into New Zealand’s legal system would be seriously at risk as research funding in universities becomes harder to find.

the New Zealand Parliament between 1987 and 2010. Or as the authors state: “…this book is an in-depth empirical examination of an important but underexplored aspect of New Zealand’s parliamentary procedure that aims to advance understanding of, and promote debate on, a matter of significant public concern.” Even before the book was published, the research had an impact in that the findings were presented to the Standing Orders Committee in its tri-annual review of Standing Orders.

Chapter 7 details the approach of the Standing Orders Committee to the research findings and notes that although two of the recommendations were accepted by the committee in its report, overall Parliament has chosen not to substantially change the Standing Orders.

For example, the public’s right to make submissions on a bill before Parliament can be denied through use of the urgency procedure. The stance of the Standing Orders Committee was disappointing because it represents a lost opportunity to adopt an evidence-based approach to the rules that bind the procedure of Parliament and the making of our laws.

This book is about the use of urgency in

The questions posed by the research

What’s the Hurry?

Urgency in the New Zealand Legislative Process 1987-2010

Claudia Geiringer Polly Higbee Elizabeth McLeay

By Claudia Geiringer, Polly Higbee and Elizabeth McLeay

Reviewed by Margaret Wilson*

are explained clearly by the use of plain and precise language, and the provision of context. Add generally short sentences and all of these ensure that the book has a good level of readability.

Finally, it is important to note the prominent author of the book, Dr Hinde, is currently an Emeritus Professor of Law at Auckland University and a barrister in Auckland. He has practised and taught land law for more than 50 years and published extensively in this area, which inevitably adds great value to the book, not only academically but also in a practical sense.

For the above reasons Hinde on Commercial Leases may be the most comprehensive and integral New Zealand legal text in the area to date. It is a worthwhile handbook for lawyers who practise in the field.

Hinde on Commercial Leases by GW Hinde, LexisNexis, August 2011, 978-1-877511-08-0, 614 pages, $189.75 (GST incl, p&h excl). *Dr Leo Zhixiong Liao is a Lecturer in Law in the Faculty of Law, Waikato University. He teaches land law, contract law and commercial transactions. Before joining the university, he was a lawyer in China and New Zealand and practised mainly in commercial/property law, tax law and overseas investment regulation. included what exactly is meant by urgency, why do governments use urgency, how much is it used and what were the existing constraints on its use, what effect has MMP had on the use of urgency, whether urgency is the best or appropriate tool to progress parliamentary business, whether we should be worried about the use of urgency and how robust is the regulatory framework that governs its use. The research methodology included both quantitative and qualitative methods.

The lack of statistical data required the design of databases to provide information to map the use of urgency.

This data was then supplemented with in-depth interviews of participants in the political system. The difficulties in constructing a useful database are not to be underestimated and are fully explained in the text. Although urgency or extraordinary urgency was used 230 times between 1987 and 2010 affecting 2000 items of legislative business relating to more than 1600 bills, these statistics tell us little about the reasons for the urgency – whether it was to progress government business because the sitting times in Parliament had run

LAWTALK 792 / 30 MARCH 2012

25

THE BOOKSHELF out or whether a genuine need had arisen to enact legislation quickly, or the device was used to progress a controversial piece of legislation without reference to a select committee.

Understanding the reasons given for the urgency is essential when recommending changes to parliamentary procedure.

For example, is the problem one of time management that requires a rethinking of how governments organise their parliamentary business or is it one of denial of the right of the public to participate in the democratic process through removing the select committee process? The book analyses the reasons why governments use urgency and the different ways it is used in chapters 3 and 4. For example, the 45th Parliament (1996-1999) and 49th Parliament (2008-2010) stand out for the highest use of urgency to avoid select committee scrutiny. Both these Parliaments were MMP Parliaments so MMP alone is not a necessary constraint on the use of urgency. MMP, however, has led to more transparency and negotiation around the use of urgency.

The only real constraint of the procedure is the need for a majority in the House.

Chapter 5, however, gives an insight into the complexity of negotiating legislation through the Parliament for any government. Delay is a legitimate tactic by oppositions and has been used by all oppositions with vigour and imagination on occasions. Geoffrey Palmer’s observation that “in the end, Parliament, like prison, can only be run with the goodwill of its inmates” is a reality check on the tactics of both governments and oppositions. The intricacies of parliamentary tactics are often lost on the public whose stance on the use of urgency is influenced by their support or opposition to the legislation under urgency. The authors also note the cultural changes in the use of urgency such as more friendly sitting hours, short sharp bursts of urgency and the preservation of question time in the negotiation of urgency. After reading this chapter one is left wondering if urgency is becoming a normal parliamentary practice for progressing business.

New Zealand’s form of representative democracy has resulted in the legitimacy of law making resting substantially on Parliament. Members of Parliament jealously guard their right to determine how they conduct their affairs within Parliament. They are the masters of their own rules and they can and do change those rules to suit their interests.

It is however a good question to ask whether the use of the urgency rules endangers the democratic legitimacy

26

LAWTALK 792 / 30 MARCH 2012

of the parliamentary procedures. The authors identify 10 principles they argue are fundamental to a democratic legislative process and against which the democratic and constitutional legitimacy of urgency ought to be assessed. The authors conclude that the present use of urgency comes at a varying cost to the integrity of the constitutional and democratic system. They also conclude that getting the business done is not a sufficient excuse for the use of urgency.

If there are consistent problems of time management in the House, other means should be sought to address them. The most troubling practice is the denial of reference to a select committee with sufficient time for public participation.

The final chapter explores recommendations for changes that would recognise the need for urgency in limited circumstances but address the fundamental problem of the need for a review of parliamentary time.

The Standing Orders Committee did not take the opportunity to adopt this recommendation but the issue will not go away and maybe the Government’s Constitutional Review may be an appropriate place to raise the issue again.

If Parliament cannot resolve the issue itself, it may be time for an external review.

The select committee also did not accept the recommendation relating to the Speaker being part of the decision to assess whether urgency that removed the select committee process was justified. This rejection of extension of the role of the Speaker in parliamentary decision-making reflects the reluctance of members to have their own power curtailed, even though the reasons given for rejection are the desire to avoid politicisation of the office of Speaker. In my experience members are quite happy to politicise the office when it suits their purpose but the role of the Speaker is another one of the issues that requires the attention of a constitutional review.

The authors did note, however, that there was an awareness of the seriousness of the issues raised in the research, and in the Standing Orders Committee Report it was noted that there was an excessive use of urgency and, in particular, the importance of select committee scrutiny of legislation.

This book makes a significant contribution to our understanding of how New Zealand’s constitution functions in practice. Hopefully it will stimulate further research that tests our theoretical understanding of constitutional matters against what happens in reality. In particular its focus on Parliament, often confused in the media as the government,

is appreciated because often this is the least understood of our constitutional institutions.

What’s the Hurry? Urgency in the New Zealand Legislative Process 1987-2010 by Claudia Geiringer, Polly Higbee and Elizabeth McLeay, Victoria University Press, January 2012, 978-0-864737-72-4, 177 pages, $60 RRP. *Margaret Wilson is Professor of Law and Public Policy at Waikato University.

She is a former Cabinet Minister and Speaker of Parliament.

KNOW YOUR RESOURCES As a member of the Electronic Publishing in Collaboration (EPIC) consortium, the New Zealand Law Society has memberonly access to 29 specialised information databases. The licence agreement allows Law Society members to access these directly by logging on through my.lawsociety (via the “Library” tab).

This series looks at the content in one of the databases.

Academic OneFile Designed for academic research, this database comprises over 10,000 peerreviewed academic journals, with over 6,500 of these in full text. There is a significant legal component, and over 1190 legal journals are either indexed or available in full text. While it goes far beyond legal matters, Academic OneFile is a valuable resource for anyone who needs to research or find background information in fields such as physical sciences, technology, medicine, social sciences, the arts, theology and literature.

The database includes full text of the New York Times and Times (London) from 1985.

There are four New Zealand law journals included: Auckland University Law Review, New Zealand Journal of Public and International Law, New Zealand Law Journal and Victoria University of Wellington Law Review (full text). There are also 37 Australian journals and legal publications.

Well-known law journals are included (such as the ABA Journal (full text from 2007), Harvard Law Review and Modern Law Review and the database also includes a range of extremely specialised journals such as Artificial Intelligence and Law, Art Antiquity and Law, Law and Financial Markets Review, Election Law Journal and Journal of Air Law and Commerce. If you practise in an obscure area, there’s probably a journal here for you. LT

BRANCH NEWS

Theresa Graham, Prue Robertson, Rachel Dunningham, Allister Davis, Gerry Brownlee, Malcolm Ellis, and Julia de Friez with the North Christchurch Earthquake Award.

CANTERBURY WESTLAND

Walking the Talk The Wellington branch Women in Law Committee, CLANZ, the New Zealand Bar Association and the Wellington Women Lawyers’ Association joined forces and hosted a conference for female practitioners on International Women’s Day.

NEW ZEALAND LAW SOCIETY

NZLS EST 1869

Canterbury Westland branch receives earthquake award The Canterbury Westland branch of the New Zealand Law Society received a North Christchurch Earthquake Award for its assistance in the response after the earthquake and role in keeping the city functioning.

The awards were an initiative of Ilam Member of Parliament and Minister for Earthquake Recovery, Gerry Brownlee with organisations nominated by the public.

A total of 15 awards were given at a ceremony on 8 March.

Mai Chen

WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869

Admission ceremony The Wellington branch held an admission ceremony on 16 March, with 35 admitted to the bar. After the ceremony an afternoon tea was held so new practitioners and their families could meet with members of the Wellington branch Council.

The panel

LAWTALK 792 / 30 MARCH 2012

27

BR ANCH NEWS The 8 March conference attracted 340 women, who were given advice from 18 high profile speakers. It included an opening address from the Minister of Justice Judith Collins, and presentations on three main topics: projecting confidence, presenting yourself, and bowling the roadblocks.

A panel discussion closed the afternoon. For a full write-up and some advice that came out of the afternoon please go to www.clanzonline.org/?p=43579.

Judith Collins

AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869

Successful ‘life at the bar’ seminars

Miriam Dean

John Billington QC and Andrew Barker, barristers from Shortland Chambers, presented two seminars on “Life at the Bar” to 40 Auckland young lawyers.

The seminar was held on the 21 February with a repeat on 13 March due to the overwhelming response. It provided a unique insight for young lawyers into the mysteries of becoming a barrister.

Andrew Barker spoke of his own journey to the bar, the advantages and the working life of a barrister. John Billington spoke on the importance of setting goals in achieving success.

Journey to the judiciary Justice Christopher Allan engaged Auckland young lawyers with entertaining snippets of his professional journey to the judiciary at a seminar recently.

The seminar: Reflections on Life as a Lawyer and Judge as well as tips for appearing in the High Court attracted around 80 young lawyers.

Justice Allan’s advice for young lawyers was both refreshing and encouraging. The message that was conveyed very strongly was that young litigators should not be deterred by losses in court early in their careers.

In Memoriam Former District Court Judge Barry James Kerr.

Former lawyer and rugby great Jock Hobbs.

If you would like to contribute to In memoriam please contact rachael.breckon@lawsociety.org.nz.

Obituaries on late members of the profession can be found in the People section of my.lawsociety.

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LAWTALK 792 / 30 MARCH 2012

OVERSEAS Supporting Syrian lawyers

Non lawyer firm ownership

The world’s major international organisations representing the legal profession have jointly sent a letter to United Nations Secretary-General, Ban Ki-Moon, in support of the lawyers of Syria.

The American Bar Association (ABA) Commission on Ethics 20/20 is edging toward a decision on whether to call for changes in legal ethics rules to allow non lawyers to have a limited ownership interest in US law firms, ABA Journal reports.

The 14 March letter follows reports of Syrian lawyers being harassed, imprisoned and abused for participating in peaceful dissent or representing Syrian citizens involved in protests.

Signed by 14 international legal professional organisations, the letter expresses the strong support of the international legal community for those Syrian lawyers being prevented by the Syrian authorities from carrying out their professional responsibilities in an independent and impartial manner.

The 14 organisations strongly condemn the actions of the Syrian Government, and call upon the Syrian authorities to meet their obligations embodied in the UN Basic Principles on the Role of Lawyers.

The full text of the letter is at www.ilac.se/download/ Syria_Letter_SG_Ban-Ki-moon.pdf. LT

Crown prosecutor performance declines The British Crown Prosecution Service (CPS) has saved £26 million over the past five years but done little to improve those advocates’ quality, reports the Gazette, magazine of the Law Society of England and Wales.

In a follow up to its 2009 report on the CPS’s advocacy strategy, Her Majesty’s CPS Inspectorate reported on 13 March that the basic competence of in-house advocates appearing regularly in the Crown court has improved, particularly in their ability to cross-examine. But it says the gap in quality between the crown advocates and selfemployed counsel has widened since 2009.

It found failures to challenge “clearly inadmissible and prejudicial evidence”, with some in-house advocates at times being less persuasive, over-reliant on case notes and lacking in confidence compared with the self employed.

The report says there has been an overall decline in the performance of in-house advocates dealing with noncontested hearings, primarily plea and case management hearings. Performance of in-house advocates in relation to the more technical elements of case preparation, such as making legal submissions and formal admissions, needs “significant improvement” the report says.

Performance had not been good in 2009, and since then has “declined markedly”.

Overall, the report found a commitment to deliver quality advocacy by the director of public prosecutions Keir Starmer QC and senior managers, but says that aim has not been reflected at local level, where area managers have continued to focus on savings. LT

The commission has posted a discussion paper on alternative law practice structures to its website. It has also posted initial draft proposals on choice-of-law issues affecting fee-sharing when law firms operating in multiple jurisdictions are governed by different rules on non-lawyer ownership. The commission sought comments on both issues by 29 February.

Alternative law practice structures right now are prohibited in every US jurisdiction except the District of Columbia. They are becoming more common, however, in other jurisdictions.

American law firms doing business overseas are in a quandary over how to balance the more permissive rules on business structures in other countries and the more restrictive regulations in US jurisdictions. LT

Major human rights move The Australian Human Rights Commission has welcomed progress towards Australia’s ratification and implementation of the Optional Protocol to the Convention against Torture (OPCAT).

Commission President Catherine Branson QC said the 29 February tabling by the Australian Government of a National Interest Analysis proposing that Australia ratify the Optional Protocol was a significant development.

“Australia’s eventual ratification of OPCAT will send an important signal that the Australian Government is committed to ensuring that the human rights of people deprived of their liberty in Australia are respected,” Ms Branson said. “The ratification and implementation of OPCAT will be a major win for human rights in Australia.” LT

The expert in professional liability The expert in and discipline professional liability LANE NEAVE LAWYERS and discipline CONTACT DUNCAN WEBB:

Tel

LAWYERS +64 3 LANE 364NEAVE 6456 CONTACT DUNCAN WEBB:

Mob +64 21 244 3346 Tel +64 3 364 6456 Mob +64 21 244 3346 Eml duncan.webb@laneneave.co.nz Eml duncan.webb@laneneave.co.nz

www.laneneave.co.nz

www.laneneave.co.nz

LAWTALK 792 / 30 MARCH 2012

29

Online registration and payment can be made at www.lawyerseducation.co.nz

Programme

Presenters

Content

Where

When

Social Media and the Law

Richard Best Andrew ScottHowman

The widespread use of social media has given rise to new legal exposures in both the private and public sector. The presenters will give their perspectives on the legal and practical issues inherent in deploying social media, the importance from an employment law perspective of up-to-date technology use and communications policies and how to deal with anonymous and destructive people who use social media for malicious purposes.

Christchurch Wellington Auckland

2 Apr 3 Apr 4 Apr

Lawyer as Negotiator

Jane Chart

Building on participants’ own experience, this one and a half day workshop provides hands-on practice and feedback, as well as a conceptual framework for preparing for and undertaking negotiations. It uses cutting edge research to examine different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, for addressing specific issues which participants might wish to raise and for generally enhancing skill and confidence in this vitally important aspect of practice.

Wellington Auckland Christchurch Wellington 2 Auckland 2

2-3 Apr 1-2 May 29-30 May 30-31 Oct 7-8 Nov

Workings of the Property Law Act – four years on

Associate Professor David Grinlinton Peter Nolan

Presenters will review the now four years’ worth of case law and academic writing to consider how the 2007 Act is performing and will examine how the standard ADLS forms have adapted to cover issues raised under the PLA. They will focus on real property aspects. All experience levels should attend.

Dunedin Christchurch Wellington Hamilton Auckland Live videoconference

23 Apr 24 Apr 26 Apr 30 Apr 1 May 1 May

Judicial Review

Francis Cooke QC

You can effectively use judicial review proceedings as a useful means of challenging decisions made by a range of public, private and voluntary organisations. If you operate in the public law area or advise decision-makers, this programme offers you a practical approach to the principles and processes of judicial review.

Christchurch Wellington Auckland

1 May 3 May 9 May

Mediation Masterclass with Prof Laurence Boulle

Professor Laurence Boulle

Practitioner, academic and teacher Laurence Boulle needs no introduction to mediators. We are indeed Wellington fortunate to have someone with his international reputation willing to hold masterclass workshops for Auckland us. Numbers are strictly limited.

2 May 4 May

Education Law Intensive

Chair: Patrick Walsh

Given the size of the school sector and its increasingly litigious nature, practitioners should add this day Auckland to their calendar. This intensive will help all practitioners who assist boards of trustees, principals, and Wellington parents in resolving, what can be complex, legal issues such as employment disputes, suspensions and exclusions, negligence, search and seizure, family law, harassment, cyber bullying and responding to complaints to the Ombudsman and Privacy Commissioner.

2 May 7 May

PPPR Act in Action

Annette Gray Judge Ullrich QC

The Protection of Property and Personal Rights Act applies to people who are not fully able to manage their own affairs due to age-related conditions, mental health disability, accident, etc. This webinar will cover the high points of a “how to” guide for anyone who undertakes PPPR Act work (for parties or as counsel for the subject person) and provides advice about care and property planning for clients with older or incapacitated family members.

Your computer

4 May

Auckland

4-6 May

SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012

Webinar

Mediation for Lawyers - Part B Family Law 2012

Virginia Goldblatt Denise Evans

For those with recent approved prior mediation training, including our Part A course. This programme will give an opportunity to practise mediation skills in the family law area and then to be assessed on them. Strictly limited numbers with pre-course work required.

Competition Law

John Land Tom Weston QC

Competition law is a specialised and complex area and it can be quite difficult to keep up-to-date Christchurch with. This seminar will alert you to the dos and don’ts when dealing with a Commerce Commission Wellington investigation. It will look at the impact of the Commerce Act on a range of issues, the current proposal Auckland for cartel criminalisation and remedies for breaches of the Act.

7 May 8 May 9 May

Lending and Securities – changes to Consumer and Commercial Credit Laws

Sarah Simmers Stuart Walker

Credit law and lending practices have come under scrutiny as a consequence of the global financial crisis, third-tier lenders practices and recent litigation involving lenders. The government has proposed amendments to the Credit Contracts and Consumer Finance Act 2003 to protect consumers including introducing new responsible lending requirements. The presenters will summarise and offer their perspectives on these changes.

Dunedin Christchurch Wellington Hamilton Auckland Live videoconference

14 May 15 May 16 May 21 May 22 May 22 May

Construction Contract Issues for Non-litigators

Carolyn Culliney Howard Thompson

The Construction Contracts Act, now in its 10th year, is generally working well, although some issues Dunedin have arisen that are a cause for concern. This seminar will identify these issues and their implications. Christchurch It will also consider what legislative matters you should be aware of when drafting a contract.

Wellington Auckland Tauranga

21 May 22 May 23 May 28 May 29 May

Death and the Law Intensive

Chair: Prof Nicola Peart

Most of us have a good deal of time to prepare for the inevitable – our death. Yet, too often the Wellington preparation has been inadequate and problems arise post death that can create family rifts, be costly Auckland and emotionally draining. This intensive will look at steps needed to minimize the risk of conflict and uncertainty post death – dealing with incapacity; testamentary advice and drafting; issues relating to the body, the validity of wills, and claims against estates.

24 May 25 May

Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, please see www.lawyerseducation.co.nz or email cle@lawyerseducation.co.nz or contact CLE information, tel 0800 333 111.

Programme

Presenters

Content

Where

When

SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Insurance Law

Lindsay Lloyd Paul Michalik

Insurance touches you all, regardless of the area of law you practise in. Everyone will advise on insurance issues when dealing with commericial purchases or leases, bodies corporate, residential purchases and businesses. This seminar is a practical guide to insurance, what it is, and the many issues that can arise, especially in relation to property. Learn about the pitfuls and what to be aware of when advising your clients. This is a must for all commercial advisers, litigators and property lawyers.

Property Law Conference

Chair: Andrew Logan

The biennial 2012 Property Law Conference will be held on Monday 18 and Tuesday 19 June at Auckland the Pullman (formerly the Hyatt) in Auckland. The chair is long-time PLS Executive member Andrew Logan of Mortlock McCormick Law, Christchurch. With nine plenary sessions, two lots of breakout sessions and a stellar line-up of presenters this is an event not to be missed. Watch for the brochure which will hit your desks on 19 March.

18-19 Jun

Corporate Governance Intensive

Chair: Justice Paul Heath

Corporate Governance is one of the major themes in the courts at present with many corporate governance issues arising out of recent finance company collapses. The issues are both civil and criminal, and there are a lot of lessons to be learnt. This intensive will take a close look at the issues highlighted by recent cases.

21 Jun 22 Jun

Expert Witness Programme

Director: Terry Stapleton

This two-day day programme follows the tried and tested teaching methods pioneered by the Wellington prestigious United States National Institute for Trial Advocacy (NITA). There are the same learningby-doing methods that have proved so successful in both the annual basic level NZLS CLE Litigation Skills Programme and the advanced course. This course concentrates on working with expert witnesses. The course is designed for all litigators from civil, criminal, family and other specialist jurisdictions with at least five years’ experience.

21-22 Jun

Stepping Up – Foundation for practising on own account

Director: John Mackintosh

The new national course Stepping Up replaces the various local Flying Start courses. All lawyers wishing to practise on their own account whether alone, in partnership, in an incorporated practice or as a barrister, will be required to complete the course.

Developed with the support of the NZLF.

Christchurch Auckland 2 Wellington

19-21 Jul 6-8 Sep 8-10 Nov

Christchurch Wellington Auckland Live videoconference

Wellington Auckland

29 May 30 May 31 May 31 May

TRUST ACCOUNT TRAINING PROGRAMMES Trust Account Administrator

John Hicks Steve Lewis David Littlefair

How do you keep a trust account in good order? This training is for new trust accounting staff, legal executives, legal secretaries and office managers.

NB: Numbers are limited so be sure to register early.

Christchurch Nelson Invercargill

15 May 17 May 22 May

Trust Account Supervisor Training Programme

Mark Anderson, John Hicks or David Littlefair.

And David Chapman, Bob Eades or Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, attend the assessment day and pass all assessments.

Make sure you register in time to do the preparatory work before the assessment day as listed on the right.

Hamilton Wellington Auckland Christchurch

11 Jul 12 Sep 14 Nov 21 Nov

ENTRY LEVEL PROGRAMMES

Developed with the support of the Law Foundation Introduction to Family Law Advocacy and Practice

Judge John Adams Usha Patel

This limited-number workshop is designed for practitioners in their first two or three years of family law practice. It works through the sort of case that will be likely to be encountered at this stage of one’s career.

Auckland Christchurch

3-4 May 23-24 May

Introduction to Company Law

Jeremy Blake Andrew Leete John Horner Anne McLeod Graeme Switzer Daniel Wong

This is a practical two-day workshop for practitioners in their first three years’ of practice with small, Christchurch medium or large firms. It will cover issues such as acquiring a business, funding, governance, Auckland distributions, expansion, shareholder disputes, financial problems and the sale of shares. Participants Wellington will gain many practical tips to enable them to develop good practice and provide quality advice to their clients.

3-4 May 14-15 May 28-29 May

Duty Solicitor Training Programme

Duty solicitors are critical to the smooth running of a District Court list.

Here is a way to gain more of the knowledge and skills you need to join this important group.

You will: • complete pre-course reading on the key tasks of a duty solicitor • learn about penalties, tariffs and sentencing options • observe experienced duty solicitors (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty solicitor at a practice court • be observed and assessed while appearing as a duty solicitor (a full day).

Auckland Gisborne Hamilton Tauranga Rotorua Dunedin Invercargill Wellington 2 Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei

11 May, 22 Jun, 23 Jun 11 May, 22 Jun (in Akl), 23 Jun (in Akl) 1 Jun, 20 Jul, 21 Jul 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 1 Jun, 20 Jul (in Ham) 21 Jul (In Ham) 13 Jul, 31 Aug, 1 Sep 13 Jul, 31 Aug (in Dun) 1 Sep (In Dun) 3 Aug, 14 Sep, 15 Sep 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 3 Aug, 14 Sep (in Wgtn), 15 Sep (in Wgtn) 21 Sep, 26 Oct, 27 Oct 21 Sep, 26 Oct (in Man), 27 Oct (in Man)

Programme brochures, online registration and booket purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz

LAW YERS COMPLAINTS SERVICE $10,000 refund ordered after lawyer failed to follow instructions A Lawyers Standards Committee has found a lawyer (A) guilty of unsatisfactory conduct and ordered him to refund $10,000 to one of his clients.

The client had been the subject of asset seizures, which included an undisclosed amount of cash. He complained that he had instructed A several times to contact Inland Revenue to establish that the seized cash was legitimate, but A had done nothing and had ignored the client’s repeated requests to find out what was happening. The client had also asked for a breakdown of fees, but A did not respond.

The client had paid A a $20,000 retainer. He complained that A had been unprofessional and incompetent and that the retainer should be returned.

A did not respond to the complaint and the committee found the allegations proven. The committee censured him and ordered him to return half the retainer. It also ordered him to pay $1,500 costs to the Law Society. LT

Registry The following people have applied to the NZLS for certificates or approvals.

Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Auckland Branch Cheri-Lee ATKINSON (nee HAYWOOD) Charles Stuart George BAKER Zoe BARTLEY Macgregor Thomas Kennedy CHAPMAN Yu Jin CHUNG (also known as Catharina CHUNG) Elizabeth Yak CONOLE (nee POUND) Jeremy Kean Mun DOBBIE Patricia Caroline FINAU Alexandrya Tiare HERMAN Thomas Albert Gardiner HOSTED Imran Avinash KHAN (Also known as Avinash NARSEY, Avinash NAISER, Avinash KHAN, Imran Avinash NAISER) Amy Hyun Jeong KIM Bonnie Colleen MCNEILL Kipling James MILTON Shardae Donna OLIVER Maxwell RUSERO Tracey Leigh RUSSELL Emma Alexandra SELLERS Fern Yee SETO Alexandra Jane SIMPSON Fiona Jane SULLIVAN Vaughn SUMMERTON Canterbury Westland Branch Stephanie Jayne BLAKE Sarah Jane CLINCH (previous name Sarah Jane WOOLLEN) Rachael Paige MORTIAUX Erin Louise REILLY Jade Rebecca RUTHERFORD Tiresa Sandra SPRAGG Andrew David WATT Manawatu Branch Kay-Anne VAN ZYL Andrew Craig PINE Tala KIRIFI Otago Branch Stacey Donna CAMPBELL Stephanie Jean WISEMAN Emma Lee MIDDLEMASS Maneli SAFARI Leonard Gary Luke MORRISON Shayne Pirya CHANDRA Matthew Francis JOYCE Claire Leanne SOPER Natasha Rose HOOD Sian Margaret JACKSON-FINDLAY Matthew James WINTER Sherilyn Kaye BRYON

Waikato Bay of Plenty Branch Andrew Bryan CRUICKSHANK Ella Rose HOWIE Brenda Jean McCOID Aidan Thomas Tyrone ALLEN Clyde Matthew BOWES Peleuila ITULA Kim Charlotte JOHNSON Fiona Siobhan RYAN Sacha Krishna NEPE Wellington Branch Abigail Ruth VAN ECHTEN (FRANSEN) Ajay Kumar VALLABHANENI Alexander Peter DYE Alistair Wallace STEWART Allex Dana EVANS Alysia Michelle Anne BARTLETT Artika Artisha KUMAR Ashley James MUIR Bianca MUELLER Christina Marie TAY Christopher Harvey ROSS David James HENDERSON David Joseph CORRY David Patrick NEILD Diane Frances WHITE Dr Brendon Mark GRAY Echo Isobel HARONGA Emilia CHRISTOFOROU Emma Kate THOMSON Erin Christie STEPHEN Fiona Louise MCCARTHY Frederick Henry Graeme HILLS Hannah Karen NIMOT Hannah Louise COULL Harold Gregory MILLARD Heather Elizabeth HAY James Brannan THOMAS Jason John TAYLOR Jeremy David ANSELL Liam Richard Sumpter BEASHEL Maria ON Mark Leslie MULHOLLAND Naomi NGUYEN Neil (Nilkumar) MISTRY Penelope Julia SKINNER Rachel Elizabeth LAING Rebekah Ruth DRISCOLE (TUTTY) Richard James CHIU Ryan Pierce VINTEN Seth John FRASER Shanelle Renee LOVEGROVE Simon John PIGOU Sladjana FREAKLEY (KOVACEVIC) Susan Jennifer ARCUS Theresa Catherine VON DADELSZEN Tsara Emelia HAWIJ Laura Jane SHIELDS Samantha Jean BRENNAN Thomas Mark ALLEN

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch Grant Mathew GOLDSMITH Richard ZHAO Matthew Denis DEVINE Meena DATT Nicola Kate DINES Kim-Shiree HAWKINS Bridget Anne SMITH Janine Michelle WILLIAMS

Waikato Bay of Plenty Branch Evelyn Brigid RYAN Wanganui Branch Quentin John Campbell STRATFORD Wellington Branch Julie Ann FOWLER Sarah Margaret CULL

The Registry is now advertising names of candidates for certificates of character, practising certificates and approvals to practise on own account on the NZLS website at http://www.lawsociety.org.nz/home/for_lawyers/registry/applications_ for_approval/ Comments concerning the suitability of any of the above-named applicants for the certificate or approval being sought should be made in writing to me by 5 April 2012.

Any submissions should be given on the understanding that they may be disclosed to the candidate.

Lisa Attrill, Registry Manager Email: lisa.attrill@lawsociety.org.nz, Direct Dial: (+64) (4) 463 2916 Freephone: 0800 22 30 30, Fax: (+64) (4) 463 2989

32

LAWTALK 792 / 30 MARCH 2012

TO LET LET TO

Fearon & Co 56x100 ad_BW.qxd:Layout 1

LEGAL SERVICES

Offices Available We have two rooms available in our premises at Level 5, 12 O’Connell Street, Auckland. The rooms would suit either a sole practitioner or barrister.

Please contact Philippa Brothers on 09 353 7995.

SECRETARIAL TRANSCRIBER With over 25 years’ experience working as a court reporter, legal secretary (in almost every aspect of law) and as an audio transcriber, I offer an affordable secretarial and audio transcription service to sole practitioners, or firms experiencing work overload.

You simply send me your audio file (in any format as I can convert it); I type it (adhering to your template or formatting requirements) and I then send it back. No job is too large or too small. My rate is $25 plus GST per hour of typing.

Please see www.cairnstranscription.co.nz or email me on amanda@cairnstranscription.co.nz.

Alternatively, you can contact me on: 04 526 2540 or 027 634 2517.

LOCUM Available for long or short assignments.

45 years’ experience as a principal in rural and city practices - 16 as a locum.

C.V. and references available.

WILLS PETER SPENCER BUCKLAND Would any lawyer holding the original will for the above-named, late of 39a Te Aroha Street, Hamilton, who died on 7 March 2012, please contact Jo Buckland, email MWSmith@xtra. co.nz. The family has a copy of a will dated 4 November 1997 in Hamilton, when Mr Buckland lived at 4 Glading Place Hamilton, and is seeking the holder of the original will.

BARRY TUI Would any lawyer holding a will for the above-named, AKA George Mayo Kebbell, late of 4B Dudley Place, Whangarei, who died on or about 24 February 2012, please contact Chris Ritchie, Barrister & Solicitor, PO Box 2068, Wellington 6140, ph 04 472 9711, fax 04 472 9223 or email mail@chrisritchielaw.co.nz.

MICHAEL JAMES BOEKHOLT Would any lawyer holding a will for the above-named, art director/ graphic designer, married, aged 46 years, late of 8 Alexandra Road, Roseneath, Wellington, who died on 27 December 2011 in Hong Kong, please contact Adelina Reis, ph 021 888 312 or email adelinareis@ xtra.co.nz.

Robert Charles Shield Would any lawyer holding a will for the above-named, late of 9271 Randel Road, Kaka Point; 323 Aramoana Bay, Port Chalmers and 6 Harbour Terrace, Careys Bay; who died on or about 31 January 2012 (the coroner released the body on 2 February 2012), please contact Mrs M A Shield, 105 Ohoka Road, Kaiapoi, Christchurch 7400.

Contact Peter Miller at Locum Services Phone: 09 534 5350 Fax: 09 533 5350 E-mail: pdrmiller2@gmail.com

ENGLISH LAW AGENCY SERVICES SOLICITORS Established 1825

Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations

VISIT OUR WEBSITE www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 00 44 (0)1483 540840 Fax: 00 44 (0)1483 540844 General Email: enquiries@fearonlaw.com

LITIGATION

Martin Williams 00 44 (0)1483 540843

mw@fearonlaw.com

PROPERTY John Phillips

00 44 (0)1483 540841

ajp@fearonlaw.com

PROBATE

Francesca Nash 00 44 (0)1483 540842

fn@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

WILLS Molly Christina TAMATOA

Andrew George HATT

Would any lawyer holding a will for the above-named, late of 1/62 Archboyd Avenue, Mangere, Auckland, who died on 7 October 2004, please contact Debra Law, Law & Associates, PO Box 76124, Manukau, Auckland 2241, ph 09 262 7602 or fax 09 263 6406.

Would any lawyer holding a will for the above-named, late of Levin, aged 66 years, who died on 27 January 2012, please contact Brian Fox, Solicitor, PO Box 65348, Mairangi Bay, North Shore 0754 ph 09 475 5916, fax 09 475 5843 or email brianfoxlaw@xtra.co.nz.

ROBERT CLIVE JACOBS (AKA BOB JACOBS) Would any lawyer holding a will for the above-named, late of Hamilton, who died on 23 August 1998, please contact Anne Ludgate, Rotorua Law Shop, PO Box 2173, Rotorua 3040, ph 07 349 2924, fax 07 346 3137 or email team@thelawshop.co.nz.

Gavin Devlin des Barres Would any lawyer holding a will for the above-named, late of 7 Monckton Road, Oamaru, construction contractor, who died in Christchurch on 27 January 2012, please contact Bree des Barres-Teka, 162 Fox Street, Whataupoko, Gisborne 4010, ph 06 863 2670, 027 664 8558 or email breedesbarres@hotmail.com.

Milton Charles Te Miringa Hohaia Would any lawyer holding a will for the above-named, AKA Te Miringa Milton Charles Hohaia, late of Pungarehu, Taranaki, carver, aged 58 years, who died on 17 August 2010, please contact Sue Olsen of Aurere Law, PO Box 1693, DX JP30025, Rotorua 3040, ph 07 348 0034 or fax 07 346 2933.

Raymond Laurence Fred Anderson Would any lawyer holding a will for the above-named, AKA Raymond Reid, late of 7 Fow Street, Hamilton, taxi driver, who died on 16 February 2012, please contact Ian Anderson, 117 Forest Lake Road, Forest Lake, Hamilton 3200, ph 07 847 7922, 021 153 4787 or email ian. anderson45@hotmail.com.

S40 PUBLIC WORKS ACT JOSEPH LEES & DAVID LEES Would any lawyer who currently acts for or is holding a will for the above-named, who owned property in Enfield, Oamaru, please contact Chris Cochrane, ph 03 363 5068, Darroch Ltd, PO Box 142, Christchurch 8140. Joseph Lees died 13 February 1876 and David Lees died 16 April 1915. Information is sought for the purposes of Section 40 of the Public Works Act 1981.

LAWTALK 792 / 30 MARCH 2012

33

21/

SITUATIONS VACANT

Investigator The Banking Ombudsman Scheme was set up in 1992 as a free and independent process to help people sort out their unresolved problems with banks. The Scheme also has a number of non-bank participants. These are deposit takers that are regulated by the Reserve Bank and that meet our financial stability and customer focus criteria.

We are seeking an Investigator, who will be responsible for assisting the Ombudsman to investigate and, where possible, resolve complaints and disputes in accordance with the Banking Ombudsman Scheme Terms of Reference.

Investigators report to the Deputy Banking Ombudsman.

Desirable • • • •

Law degree Previous experience in a similar role Dispute resolution experience Banking and/or commercial law experience

To view a job description, please go to www.bankomb.org.nz

Applications close at 5pm on Friday 13 April.

In-house Solicitor, Trusts, Wills & Estates Good opportunity to use your experience in trusts, wills and estates to move into a corporate in-house environment and provide strategic commercial advice to a range of national stakeholders.

This well-regarded organisation is seeking a solicitor with five years’ experience to join their small in-house team.

You will have previously worked in a similar organisation or be looking to make the move from private practice.

You must have experience of giving legal advice pertaining to trust formation and administration, estate planning, wills and conveyancing. Excellent written and verbal communication skills are also essential as you will be engaging with clients and other key stakeholders on a daily basis.

This is an excellent opportunity to work in-house for a well-known national organisation so please get in touch to find out more about this role and other similar positions.

For a position description or to make your application, contact:

For further information in strict confidence please contact Ben Traynor or Clare Savali on 04 471 1423 or email admin@ nicherecruitment.co.nz

Cheryl Thomson Executive Administrator cheryl.thomson@bankomb.org.nz Phone 04 910 9265

Phone: +64 4 471 1423 Email: admin@nicherecruitment.co.nz www.nicherecruitment.co.nz

Commercial Lawyer • Wellington CBD • 2-4 years’ PQE This leading law firm seeks an intermediate commercial lawyer with experience in any of the following areas: securities, compliance law, regulatory compliance, superannuation, KiwiSaver or PIE funds.

The firm has an impressive list of corporate clients, both local and internationally based.

You’ll work on a wide variety of challenging matters and will be assisted by a large and supportive team and the best resources available.

The ideal candidate will have a strong client focus, excellent legal, analytical and interpersonal skills. They will also need to be organised, able to manage their own workload, highly motivated and have a mature attitude.

Wellington Ph: +64 4 499 6161 PO Box 11003 Auckland Ph: +64 9 306 5500 PO Box 105732

To apply please email your CV and academic transcript to wellingtonjobs@momentum.co.nz quoting reference number 29120. For further information in strict confidence, please contact Carla Wellington or Marissa Taylor on 04 499 6161.

www.momentum.co.nz

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