LawTalk Issue 793 by New Zealand Law Society

LAWTALK NEW ZEALAND LAW SOCIETY NZLS EST 1869

13 APRIL 2012 / 793

FOR THE NZ LEGAL PROFESSION

Bright horizons What are the opportunities and what should lawyers think about before leaving these shores?

WORKING OVERSEA S FEATURE PAGE 10

PAGE 5

LAWYERS’ DUTY TO PLAY BALL

PAGE 7

MINISTER’S VISION FOR THE COURTS

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NEW ZEALAND LAW SOCIETY

LAWTALK 793 / 13 APRIL 2012

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AUCKLAND:

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INSIDE

THE MAGAZINE

FEATURE: WORKING OVERSEAS

“I think we need to always question the business of justice and how applicable it is to the times in which we live.” page 7

“For someone working in privacy and data protection, the depth and breadth of issues that crop up at the BBC are, in my view, hard to beat.” page 10 10

Get a job before going global

Finding your way overseas

By RACHAEL BRECKON

04 New TV series will focus on legal rights A new television series designed to provide people information about their legal rights will begin screening this month... Hot topic: ACC round up Lane Neave’s helping hand

Understanding the vision for the courts By HANNAH GRANT

From structure to language, we need a more simplified, context-driven court system...

06 Police’s first Principal Prosecutor Mark Wilton has been appointed the Police Prosecution Service’s first Principal Prosecutor...

16 Top at sentencing submissions

Australian New Zealand wage comparison

Auckland University student Nicholas Dobbs emerged as the victor in this year’s Sentencing Competition...

13 The draw of the Channel Islands

At the helm of privacy and data protection for iconic broadcaster

The duty to play ball The New Zealand Law Society’s Report on the Exercise of Regulatory Functions and Powers for the year to 30 June 2011 tells us that...

You’ve done all the right things. You got good grades at university and spent two years working in a top law firm...

By HANNAH GRANT

Two and a half years ago New Zealander Polly Ralph landed her dream job...

WAINUI Canoe Club

Mr. William Murphy CLUB CEO

When he left Chapman Tripp in Wellington in 2005 for his traditional OE, Peter German bypassed the conventional route to London...

022 992 49310 www.wainuicanoeclub.com

REGULARS The digital business card How often do you look at your stack of business cards and wonder how on earth you will get through them all...

People in the law

Law Reform report

Effective Practice

From the Courts

Letters to the Editor

The Bookshelf

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 793 / 13 APRIL 2012

FROM THE LAW SOCIET Y Jeremy Valentine

t is the time of the year to celebrate the success and importance of the 20% of New Zealand lawyers who work as in-house counsel. Nominations are open for the 2012 CLANZ InHouse Lawyer Awards. Nominations are sought from anyone who works closely with in-house counsel and understands the value they provide. In-house lawyers may also nominate themselves. All lawyers employed or engaged by organisations in an in-house capacity and holding a current practising certificate are eligible for the 2012 Awards. This year’s categories are: •

Public Sector In-House Lawyer of the Year;

•

Private Sector In-House Lawyer of the Year;

•

Young In-House Lawyer of the Year; and

•

Community Contribution Award.

CLANZ encourages you to nominate outstanding individuals as they may not be willing to put their own names forward. Full criteria and a nomination form are available at www.clanzconference.org.nz/awards. The awards ceremony will be held at this year’s CLANZ conference The Essential Elements of In-house in Queenstown on 10 and 11 May.

LAWTALK 793 / 13 APRIL 2012

As it is the 25th CLANZ Conference, it is also a time to reflect on the growth of the organisation over the past quarter century and the successful, vibrant professional group it has become. This year’s conference offers excellent networking opportunities, and the high quality speakers, workshops and panels make it a vital part of an inhouse lawyer’s ongoing professional and personal development. Go to www.clanzconference.org.nz to see full programme details. On the topic of professional development, CLANZ’s active regulatory and law reform subcommittee has prepared a submission on the Law Society’s Continuing Professional Development proposal as it relates to inhouse counsel. Overall, CLANZ is supportive of the proposed approach and has made suggestions on areas to improve, some of which would result in the proposal better reflecting the needs of in-house lawyers, including through the recognition of wider training needs and not just black letter law. The up-coming AGM held at the CLANZ conference will also see the election of a new president and committee. While I propose to stand down as president, I hope to continue on the committee. I have thoroughly enjoyed my time at the helm of the in-house section of the Law Society, representing the interests of in-house lawyers and helping to meet their professional and social needs. I believe the in-house profession is in good heart. Jeremy Valentine President CLANZ

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 Ph +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

Coming up … Managing digital identity This year sees the follow-up to New Zealand’s first major conference about identity. To be held at Te Papa Tongarewa, Wellington, on 30 April and 1 May, the conference will look at where digital identity may be going in the future, particularly as we increasingly live, work and play online. Organised by Victoria University School of Government, the Department of Internal Affairs and the Privacy Commissioner, it is entitled Managing Digital Identity in a Networked World. It follows the country’s first major conference about identity, held in 2008, and entitled Managing Identity in New Zealand. See www.identityconference. victoria.ac.nz.

Helping clients with big data The conference looking at managing digital identity is one of two events with a privacy focus coming up soon. After that conference, a Privacy Forum will run from 8:30am to 5pm on 2 May at the Intercontinental Hotel, Wellington. The forum will focus on privacy in the age of “big data”. It will help participants learn more so that they can advise their clients and help them negotiate their way through the legal implications of big data and the cyber world. See http://privacy.org.nz/privacyawareness-week-29-april-5may-201.

Work and Life Awards The closing date for entries in the 2012 EEO Trust Work & Life Awards is Thursday 17 May at noon. Law firms have featured in these awards in years past. See www.eeotrust.org.nz/ awards.

CLIENTS WITH

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.

JOHN MILLER LAW

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

Enforcing judgments around the world This year’s Annual Litigation Forum will be held in New York from 9-11 May. The conference title is MultiJurisdictional Disputes: the view from inside the corporation. It will be presented by the Corporate Counsel Forum and the IBA Litigation Committee, supported by the IBA North American Regional Forum. Topics include:

• turning your foreign judgment into

cash: how to enforce judgments around the world (and how to block their enforcement);

• alternative fee arrangements and litigation funding; and

• the extraterritorial reach of

domestic law in cross-border litigation.

See www.crowell.com/ NewsEvents/Events/1366411.

Against corruption The fifth Independent Commission Against Corruption symposium will be held in Hong Kong from 9-11 May. The symposium theme is Old Challenge, New Approach: Fighting Corruption in a Changing World. See www.icac. org.hk/symposium.

Family law conference The fourth LAWASIA Family Law Conference will be held in Georgetown, Malaysia, on 6-7 July. See http:// lawasia.asn.au/lawasiaconferences.htm.

LAWASIA’s 25th The 25th LAWASIA Conference will be held in Bali, Indonesia, from 18-21 November. See http://lawasia.asn. au/lawasia-conferences.htm.

• Wish to refer them to a specialist ACC law firm? • With nationwide coverage? • We deal with ACC matters only and will not represent your clients in other areas.

LAWTALK 793 / 13 APRIL 2012

NEWS

New TV series will focus on legal rights

•

employment law; and

•

credit laws and loan sharks.

A new television series designed to provide people information about their legal rights will begin screening this month.

The programme aims to provide information to people with English as a second language and others who do not have ready access to the law, Ms MacLennan says.

The 13-part series, entitled Know Your Rights, will begin on Triangle Television on Thursday 26 April, with repeats to be broadcast every Friday. The programme will be simultaneously ecast on three websites: www. livenews.co.nz, www.scoop.co.nz and www.ecasttv.co.nz. The screening comes thanks to the New Zealand Law Foundation, which provided a grant to assist with the production of the programme. “Despite the growth of community law centres, people in low-income and disadvantaged communities often lack understanding of their fundamental legal rights,” Law Foundation Director Lynda Hagen says. “The foundation hopes this television series, and the associated wider internet distribution, will help address this.”

Hot topic: ACC round up ACC legal aid Fixed fees are not appropriate for ACC claims, the New Zealand Law Society said in its recent submission on proposed changes to ACC legal aid. ACC claims, the submission noted, generally involve complex facts and medical evidence, and cost significantly more to run than current legal aid grants cover. Reducing grants further, the Law Society said, would force out the small pool of senior ACC lawyers who are currently providing this service. For more detail on the Law Society’s submission on ACC legal aid, see the monthly law reform update on page 14.

Opening the ACC work account to competition from private insurers Plans to open the ACC work account to competition from private insurers may

LAWTALK 793 / 13 APRIL 2012

“My work in South Auckland over many years has shown me how difficult it is for many New Zealanders to access the law. It is much better for people to have knowledge that can help them avoid legal pitfalls, rather than them having to seek remedies through the courts.” Catriona MacLennan, presenter of Know Your Rights

Barrister and journalist Catriona MacLennan will present Know Your Rights. The topics to be discussed, Ms MacLennan says, include: •

civil liberties and people’s rights when dealing with the police;

•

family law, including separation and making arrangements for children;

be changing. Recent public comments from the Minister for ACC, Judith Collins, suggest that the Government could be moving away from opening up the ACC earner account. The minister has reportedly said that she has “found a way through” the issue of introducing competition for the work account, which is a key element of the National Party’s coalition agreement with ACT. The Law Society made a strong submission back in July 2011 against proposals by then ACC Minister, Nick Smith, to open the work account. The full text of that submission, which was prepared with the assistance of the Law Society’s ACC Committee, can be viewed on the submissions’ page of the Law Society’s website, www. lawsociety.org.nz.

Practice note – Accident Compensation Appeals Authority The Accident Compensation Appeals Authority has issued a Practice Note setting out the procedure for filing appeals to the authority. The Practice Note took effect from 12 March and can be found in the News section of my.lawsociety http://

Ms MacLennan had two stints working at Nga Ture Kaitiaki Ki Waikato Community Law Centre and has dealt with a wide range of legal problems commonly encountered by people on low incomes, including problems with oppressive loan agreements and difficulties with benefit entitlements. “We believe this new series will complement all the other programming we do as a public broadcaster,” Triangle Television chief executive officer, Jim Blackman, says. And it will “greatly assist those for whom information and education continue to be a major issue”. LT my.lawsociety.org.nz/news/ accident_compensation_appeal_ authority_issues_practice_note. LT

Lane Neave’s helping hand Lane Neave Lawyers recently helped raise $30,000 for the Christchurch Emergency Care Foundation at their annual golf day. This followed the cancellation of the 2011 event, due to the earthquake. “Lane Neave has had a strong relationship with the Emergency Care Foundation for many years,” says the firm’s managing partner, Michael Wolfe. It was the doctors and nurses at Christchurch Hospital that saw the worst of all the casualties last year but thanks to their skills, determination and expertise they were able to save many lives. It is the demands on their technical expertise and equipment that Lane Neave wanted to address. LT

NEWS

The duty to play ball By Paul Collins* The New Zealand Law Society’s Report on the Exercise of Regulatory Functions and Powers for the year to 30 June 2011 tells us that the Lawyers Complaints Service received 1,509 complaints in the reporting period. That was 1,509 occasions on which lawyers had to put aside remunerative client work or valuable professional or practice development initiatives to attend to the inevitably negative and backward-looking task of responding to the statutory complaints processes. The focus of this article is on lawyers’ duties in responding to the Complaints Service, and to Lawyers Standards Committees, although the same principles may be regarded as applying equally to the handling of complaints directly with complainants. That situation is the subject to Rule 3.8 in the Conduct and Client Care Rules which contemplates a mechanism in which complaints are dealt with “promptly and fairly by the practice”. My purpose is to explain the nature and sources of lawyers’ professional responsibility to co-operate with Standards Committees and to explain the perils of failing to do so. I will conclude by suggesting some sensible means of easing the burdens of compliance with those responsibilities. A lawyer’s duty to co-operate with the Standards Committee, once the complaints investigation procedures have been engaged, should be regarded as a self-evident incident of professional life. It is well established that a lawyer whose conduct is the subject of an inquiry by an investigative or disciplinary body has a duty to assist that body in its inquiries (for example, Johns v Law Society of NSW [1982] 2 NSWLR 1, Law Society of South Australia v Jordan (1998) SASC 6809, and Auckland District Law Society v Leary (HC, Auckland M1471/84, 12 November 1985)). That is a general and wide-ranging duty of co-operation but there are also some specific statutory duties, including: (a) the duty to provide to the Standards Committee such documents, papers, accounts, or records in the possession or under the control of the lawyer, as might be required

(s147(2) of the Lawyers and Conveyancers Act 2006 [LCA])+; (b) the duty to appear before a Standards Committee to provide an explanation if required (LCA s141(b)); and (c) the duty to provide such specified information as might be required by the Standards Committee (LCA s141(c)). The existence of a duty to co-operate in the complaints and disciplinary processes, reinforced by the protective purposes of the LCA, was confirmed in the judgment of Justice Cooper in the High Court in Parlane v New Zealand Law Society (Waikato Bay of Plenty Standards Committee No.2) (HC Hamilton, CIV 2010-419-1209, 20 December 2010). This was an unsuccessful appeal by a lawyer who had been struck off by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after several misconduct charges had been established, including a charge of obstructing the Standards Committee. His Honour found, at [106], that the lawyer had wilfully refused to comply with the lawful requirements of the Standards Committee and that the record of events showed “the truculent and abusive nature of his dealings with the representatives of the Law Society”. The concept of a duty to co-operate was discussed in the following terms, at [108]: “The purposes of the Lawyers and Conveyancers Act include maintenance of public confidence in the provision of legal services, protection of consumers of legal services and recognition of the status of the legal profession. To achieve those purposes the Act provides for what it described as ‘a more responsive regulatory regime in relation to lawyers and conveyancers’. The provisions of Part 7 of the Act dealing with complaints and discipline are central to achieving the purposes of the Act. I consider that legal practitioners owe a duty to their fellow practitioners and to the persons involved in administering the Act’s disciplinary provisions (whether as members of a Standards Committee or employees of the New Zealand Law Society) to comply with any lawful requirement

made under the Act. There must also be a duty to act in a professional, candid and straightforward way in dealing with the Society and its representatives.” As was demonstrated by this case, the consequences of failing to comply with the duty to co-operate can be severe, up to and including the ultimate sanction of striking off. In addition, Standards Committees have the power to prosecute for obstruction in the summary jurisdiction of the District Court, under s262(1) of the LCA, punishable on conviction by a fine not exceeding $25,000. The perils of failing to co-operate do not end there because of the inherent supervisory jurisdiction of the High Court over lawyers (LCA ss268 and 270). This includes the possibility of professional sanctions being imposed directly by the court. It should be acknowledged that compliance with the duty to co-operate can be burdensome. A complaint of overcharging, for example, is easily asserted but the response will frequently require a thorough, complex and time-consuming analysis of the file and an equally time-consuming response. While the burdens of professional responsibility in this area should not be understated, there are a number of sensible measures that can be adopted to help ease the load (in consultation with the lawyer’s underwriter if the lawyer has cover in this area). (a) It is important for lawyers to develop an attitude of enlightened self-interest in responding promptly and helpfully to Standards Committees. It will always be in the lawyer’s own interest to do so, at the very least to avoid the adverse professional consequences of obstruction or persistent delay. (b) More positively, a prompt and comprehensive response to a request by a Standards Committee will convey the impression of a responsible and well organised legal practice. (c) In the context of a firm, a system should be available where the

LAWTALK 793 / 13 APRIL 2012

NEWS person responsible for managing the complaint file receives budgetry credit for that work. The reality for most busy lawyers is that “dead time” is likely to result in delay. (d) Sole practitioners and barristers should have an arrangement with another lawyer to assist in this area. Such an arrangement is suggested by Rule 3.8 in relation to the initial handling of the complaint, but it should apply equally if and when the complaint passes into the hands of a Standards Committee.

None of these measures amount to a panacea, but they will provide some assistance to lawyers in discharging these important professional duties. As can be seen, the consequences of failing to do so can be severe. This is not intended to suggest that privilege is overridden. Privilege is a different topic and it is sufficient to say that legal professional privilege properly asserted cannot be overridden. However, a complainant client is taken as impliedly waiving privilege for the purpose of the +

Police’s first Principal Prosecutor Mark Wilton has been appointed the Police Prosecution Service’s first Principal Prosecutor, marking a major step in the implementation of a new career structure for the service. For Mark, the appointment came on 12 March, eight years and eight months after he joined the Police as a prosecutor. That was in August 2003, and this appointment to Police came after he had spent seven years in criminal defence work. Traditionally, Police prosecutors in the summary jurisdiction

complaints and disciplinary processes. *Paul Collins is an Auckland barrister who moved to the independent bar this year. Before that he was a senior litigation partner at Glaister Ennor in Auckland. Paul has advised law societies (including the New Zealand Law Society) since the mid-1990s on a wide range of matters relating to the regulation and governance of the legal profession in New Zealand, including complaints and discipline, admissions and practising certificates, Fidelity Fund, and related matters. LT

were sworn officers. Around 10 years ago that began to change, however, with the decision to begin employing lawyers to act as Police prosecutors. Sworn officers still conduct prosecutions for the Police, but today around 23% of the 206 prosecutors are lawyers with practising certificates. Some of the sworn officers also hold law degrees, although they do not have or need practising certificates. In the current summary jurisdiction, the Police Prosecution Service currently conducts around 85% of the District Court criminal work. Like the sworn officers, the lawyers do no handle indictable offences or cases where a jury trial has been elected, however. The new career structure, implemented by the Police Prosecution Service in the last year, provides for three grades and people will enter the structure and work through the three grades based on time and experience. Alongside that, the Police Prosecution Service now has a professional development team responsible for delivery and implementation of the career structure. That team runs courses very similar to the litigation skills course run by NZLS CLE Ltd, except with a Police prosecution focus. One is a week-long advocacy course and the other, also a week long, focuses on advanced advocacy. In addition, the professional development team runs an Introduction To Prosecution Course. More than just Police prosecutors are attracted to this education, too. Prosecutors from other government enterprises and from overseas attend as well. Although Mr Wilton is the first Principal, or Grade 3, prosecutor, the aim is to roll out other Principal Prosecutor appointments throughout the country. Movement to this level is by appointment. People have to have gained the status of Senior Prosecutor, by virtue of experience and education, and also need to apply to a national appointments panel. The previous Grade 2 level is for prosecutors with more than 2 years’ service, including Senior Prosecutors with over 5 years, while the starting level is Grade 1. The career path is based on prosecutors meeting specific competencies, undertaking assignments and study to meet learning outcomes in various courses, modules and on-thejob learning. In fact, completion of professional development courses is mandatory for all prosecutors appointed to the Police Prosecution Service. The really exciting thing, Mr Wilton says, would be for the profession to be aware of the Police Prosecution Service as a valid career path open to qualified lawyers. LT

LAWTALK 793 / 13 APRIL 2012

Understanding the vision for the courts

Chester Burrows

By Hannah Grant From structure to language, we need a more simplified, context-driven court system. Whether experienced by those in the legal profession, bit players (players such as complainants, defendants and witnesses) or the general public, our court system needs to be better understood. This is the perspective of Chester Borrows, Minister for Courts, whose ideas for his portfolio stem from 35 years of “knocking around the courts”. Previously a police officer, detective, lawyer and now Member of Parliament, Mr Borrows thinks he is well placed to make changes to the courts so that they are operating effectively in the interest of justice for everyone in society. “The language we use in our courts is laden with jargon and needs to be simplified in order to be understood for people from all diversities. The structure of where people stand in court rooms needs a big rethink too. “Legal speak is a foreign language to many. The hearing may as well be conducted in Mandarin. This is not a good way for a justice system to operate,” Mr Borrows says. He says that we need to challenge what we do, how we do it and who we do it to in the courts. Taking justice back out into the community is an avenue being investigated to meet this end. “It’s about evaluating how comfortable

people are in courts who only use it sporadically. As lawyers, judges or police officers, we are there all the time so are used to the processes and tradition. “We need to draw on the way in which community interest groups, maraes and churches work to make our processes more relevant,” he says. When offenders are surrounded by others in the community, the relevance of their actions is reinforced and resolutions run deeper, Mr Borrows says. He is looking forward to the evaluation of Rangatahi courts and that Ngā Hau e Whā Marae in Christchurch established after the earthquakes. “Anecdotally, these types of courts seem to be working well, but need further evaluation. “I think we need to always question the business of justice and how applicable it is to the times in which we live,” Mr Borrows says. The general shape of our courts is better than most countries, Mr Borrows asserts, though there is enormous room for improvement, especially in areas like restorative justice. “We need to enable restorative justice more pre-sentence. This works great in the youth court, but if it works so well here, it would work similarly well for people of all ages. “It’s all about being smart on crime to reduce reoffending. If we accept that there are drivers of crime, then we need

to act earlier to put roadblocks on the path to crime. Current we only do this in court post-sentence,” he says. The priority of the government, explains Mr Borrows, is not to just churn through cases; it’s about applying an appropriate speed of justice that makes courts effective. “There are significant lag times between indictment and hearings, but it’s not necessarily ‘the faster the better’ approach that we are after. A rush decision is seldom as good as a fairly informed decision. We need to do things at an appropriate pace.” Economic restraints that are prevalent across government departments also exist in court management. Mr Borrows indicates that he is looking into managing courts on a regional basis rather than court by court. Audio visual links between courts and users can be cost effective in this respect. “There is the potential for an online judge roster and to look at virtual courts where people would Skype in, for example. This would work in simple cases and have the potential to reduce court time. “There is always room to improve, it’s the need and the how. But there are economic limitations. We have to efficiently use public money and I think the National government is under the microscope in this respect more so than any government before.” LT

LAWTALK 793 / 13 APRIL 2012

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.

Bell Gully has appointed six new senior associates, including four returning alumni. Dean Alderton joins the Auckland corporate team from SNR Denton in Dubai where he was a partner. Simon Consedine re-joins Bell Gully in the Wellington litigation team, having completed his LLM at Columbia University and subsequently worked for Freshfields Bruckhaus Deringer in Paris. Deborah Doak re-joins the employment team in the Auckland office as a senior associate. Leigh Kissick re-joins the firm in the Wellington banking and finance team, having spent four years at Slaughter & May in London. Laura Littlewood also joins Bell Gully’s corporate team after six years overseas practising at Macfarlanes in the UK and AttrideStirling & Woloniecki in Bermuda. Glenn Shewan re-joins the firm in the Auckland competition team after six years in Australia and the UK. Most recently he was a managing associate in the London office of Linklaters.

Kate Ashcroft, employment law specialist, has joined Brookfields Lawyers as a senior associate in the litigation team. Kate’s background includes all aspects of employment law in New Zealand and in corporate human resources in Australia. Kate has an interest in and commitment to volunteering and the not-for-profit sector and is a trustee on the board of Volunteering Auckland.

and trust issues.

Buddle Findlay has promoted Alexandra Low to special counsel. Alexandra is a senior taxation practitioner specialising in disputes, litigation Victoria Dryden has joined Dennis King Law’s litigation team. Victoria’s focus will be on civil and commercial litigation, alternative dispute resolution and employment law.

LAWTALK 793 / 13 APRIL 2012

Meetra Wong has joined Crown Law as an assistant Crown Counsel in the criminal law team. Before joining Crown Law, Meetra studied a BA/LLB(Hons) at Auckland University and she is currently completing an honours dissertation on New Zealand’s preventive detention regime. Elana Geddis has begun practice as a barrister in Harbour Chambers, Wellington. A former senior public sector lawyer, she provides advice in all areas of public law and has particular expertise in the domestic legal implications of international obligations. Environmental law specialist Hans van der Wal has been appointed as special counsel at Duncan Cotterill Lawyers. Hans has acted for local government and private clients on plan and consent-related legal issues both at council and court hearings and in environmental enforcement

and prosecution proceedings. Chris Shannon joins Duncan Cotterill as an associate. He was formerly a Crown prosecutor for more than seven years, the past five as a senior Crown prosecutor in Palmerston North. Bridgette White has rejoined Buddle Findlay’s Auckland office as a senior solicitor in the litigation team. Bridgette specialises in commercial litigation and insolvency, and has recently returned to New Zealand after two years working in the United Kingdom. Rob Noakes has joined Wynn Williams as a partner and heads up the new Auckland office on Shortland Street. Rob specialises in mergers and acquisitions, joint ventures, trade practices, competition law, corporate governance and risk assessment. He advises listed, multinational and private companies. Nick Lodder joins Wynn Williams as a partner in Auckland on completion of New Zealand Law Society requirements. He advises financiers and borrowers across a variety of banking and finance matters. Nick is a specialist in banking and finance and his work has included asset finance, syndicated lending, structured

PEOPLE IN THE L AW finance, leveraged finance, insolvency and restructuring, regulatory issues and Personal Property Securities Act issues.

Brother v brother Two brothers were anything but brothers in arms in the High Court in Auckland on 16 March. In fact, they appeared on opposite sides.

Anderson Lloyd has appointed two new associates, Sarah Eveleigh and Fiona McMillan. Fiona was a teacher for 20 years before studying law, and is a member of the firm’s specialised education and employment law team based in Dunedin. Sarah is a member of the resource management team with a reputation for making the seemingly impossible possible. She has been involved in a number of successful rezoning proposals as well as a variety of complex waterrelated consent projects. Richard Greenaway joins the Anderson Lloyd team in mid-April. Richard has been appointed chief executive officer and he will be based in the Dunedin office. Richard’s previous experience is primarily in senior management positions in the banking sector.

Nick Flanagan and Meredith Connell partner, the oldest in his family, appeared for the prosecution in the Air Cargo case. Acting for Air New Zealand for the defence were Bell Gully partner Simon Ladd and Nick’s youngest brother Richard, who is a lawyer at Bell Gully. Mr Ladd introduced Richard to Justice Asher as “Flanagan Junior” to the amusement of the judge.

Perhaps a meeting of this kind was inevitable. Lawyering runs in the family. Nick and Richard’s mother, Lois Flanagan is a partner of Parry Field in Christchurch. As she studied for her law degree later in life, Lois was at law school with Nick for part of that time. Another of her sons, Hamish, is a lawyer in Canada. Formerly with Russell McVeagh in Wellington and the office of the Auditor-General, also in the capital, Hamish is now with the Auditor-General in Victoria, British Columbia. LT

Practising Well Supporting Kiwi lawyers since 2009 Be sure to check out our PRACTISING WELL resources at my.lawsociety.org.nz/practising_well

PEOPLE Lawyer Victoria Heine has been appointed to the Victoria University of Wellington Council. A partner at the Wellington branch of Chapman Tripp, Ms Heine has a background in public and administrative law, and regulatory litigation and enforcement. Ms Heine is a graduate of Victoria University, where she completed degrees in law and biochemistry. In 1996 she won a Fulbright Scholarship to study law and economics at the University of Chicago. The Institute of Professional Legal Studies (IPLS) has appointed four new instructors to meet high levels of demand around the country. The new instructors are Lorraine Lipman (Auckland), Roman Jewell (Wellington), Jane Costigan (Christchurch) and Belinda Pidwell (Hamilton). LT

NEW ZEALAND

LAW SOCIETY NZLS EST 1869

LAWTALK 793 / 13 APRIL 2012

WORKING OVERSE AS

Get a job before going global BY RACHAEL BRECKON You’ve done all the right things. You got good grades at university and spent two years working in a top law firm. Now it’s time to pack a ruck sack and catch a flight to London, sleep on the couch, buy a suit, shine your teeth, and find a good spot in the overseas workforce. Or not. The overwhelming advice from international recruitment agents is this traditional kiwi rite of passage could (in the present market) endanger your career. Outside Australasia, markets are constricted but there are still great opportunities for savvy open-minded New Zealand lawyers. “If somebody is focused on only one location and a particular type of firm, the markets would seem to be fairly tight, and not that busy, but if they are open to a global opportunity and open to a number of locations then there are number of options for people,” Jonathan Walmsley, Principal, Marsden Legal Search & Recruitment (Sydney) says. But it is no longer a good idea to find a good job on the ground. “One important message to deliver to New Zealand lawyers is do not go to London, or an overseas location, without a job to go to,” Mr Walmsley says. “It’s going to be really career-damaging in this market. Firms don’t like it. They would rather hire someone who is currently employed with a top-tier firm and are continuing to grow in terms of their expertise and knowledge.” “Most people we know who [go overseas without a job] are not getting work or they are taking positions which are below where they should be. That really damages them when they try and come back.” Mahlab Recruitment Manager, Private

LAWTALK 793 / 13 APRIL 2012

Practice and International, Mary Horniblow (Sydney) spoke along similar lines but recognised there were two different types of job seekers.

personal viewpoint would be do as much leg work on this side of the world first. Actually find some contacts to talk to.

“One that is not so career-minded, and they’re quite happy to go work [anywhere] or just take a job as a contractor or whatever,” she says.

“The good thing with the day and age we are in now is there is video conferencing available so you can actually get in process with particular positions quite easily without actually being there on the ground.

“Then you have people that are more ambitious, and plan their careers more, and true they might want to travel as well, but they are certainly not going to dilute their CV in order to do so.” For the first type of person, Ms Horniblow says “go for it – you probably will get something.”

“

One important message to deliver to New Zealand lawyers is do not go to London, or an overseas location, without a job to go to.

”

Jonathan Walmsley But, for a more serious, career-minded person, she, like Mr Walmsley, would not advise a New Zealand lawyer to go abroad without lining up employment. “You could end up doing just any old contract and you won’t be doing your CV any favours. You’re better off staying where you are, or going to a market like Australia where you can actually improve your CV, and increase your chances of getting a role.” Randstad New Zealand Director Paul Robinson said it depended on why a lawyer was heading abroad. “If you are going for your career, my

“We see a lot of placements being done across the world without candidates actually being met.”

Current market demands “Tailored” is how Mr Walmsley describes the international work environment at the moment. In this employers’ market, they request three to four years’ work experience, experience in a top-tier firm, and experience working on “major deals”. These criteria can be tricky for New Zealand lawyers to fulfil. The weak economy in the last few years has meant junior lawyers have not had many opportunities to work on major deals. “One of the issues we have had in recent years with some New Zealanders is even if they have been working in really good firms they haven’t had the deal flow,” Ms Horniblow says. “That has been problematic. In better times they would be walking out of [top-tier firms] with first class deals. But there just hasn’t been enough activity in New Zealand to give them that experience, so particularly those people that only have three years’ experience might have been doing a hotch potch of work in that time.” This does not mean junior New Zealand lawyers do not have the opportunities to move out of Australasia. It just could take some more forward planning than it used to. Director of Randstad New Zealand

WORKING OVERSE AS Paul Robinson recommends that while gaining the three to four years’ experience needed to move into the international market, junior lawyers should use that time to move into a toptier firm. “To get noticed in the international markets you need to have experience with a top law firm. I think making steps [during those first years] to get your foot in the door with one of those top law firms will always put you in a better position.” There is always the option of adding a ditch crossing as an intermediate step, according to Australian-based recruiters. “In a sense, moving to Australia, which is still really receptive [to New Zealand lawyers] is a good way of beefing up the deals on your CV,” she says.

and candidates, has the average salary range of a top-tier lawyer in their first year living in Sydney at AU$80,000.

greener as you may expect,” Mr Robinson says. However, success on the Australian market could lead to significantly higher remuneration. The Dolman private practice salary survey 2011 to 2012, which used information obtained from employers

Large firm/top tier firm − Australian New Zealand wage comparison: 250 K 225 K

NZ AU

225

200 K

180

175 K 150 K

“It’s really healthy in Australia. We have got a shortage of candidates rather than roles. We have had quite a few international firms enter the market, which shows it is strong,” Olivia Rybicki, Consultant, Dolman, Worldwide Legal Search & Recruitment says.

120

The main centres in need of lawyers are Brisbane, Perth and Sydney.

75 K

110

100 K

50 K

YEAR 1

YEAR 2

YEAR 3

YEAR 4

• All in Australian dollars. At the time of comparison the $NZ =$AU0.79. This conversion was used for the New Zealand salaries.

“Being transactional areas, these carry over better than, say, environmental which is particular to the Resource Management Act, which is particular to New Zealand, and better, say, than property and construction,” she says.

Specialties sought, by region

“That the employee has remained with the firm, they have a solid base of training, and they are making a step towards Australia for personal reasons,” Ms Rybicki says. New Zealand-based, Mr Robinson agrees the Australian market has been more “buoyant than others over the last couple of years” but still emphasises the need for caution. “I think you still need to do that research. The grass isn’t always as

102

25 K

• The New Zealand statistics data is from the New Zealand Law Society

Dolman also looks for consistency and loyalty.

Ms Rybicki says they look for candidates with a solid and consistent firm background, generally in banking and finance, and corporate.

“We look for solid academics and at least two years’ training within a top- or medium-sized law firm.”

165

150

140

125 K

The Australian market

In comparison the New Zealand Law Society Momentum 2011 salary survey showed a lawyer in a large firm doesn’t hit an average of AU$80,000 until year seven of their employment.

United Kingdom (London) • Things have slowed down and increased difficult-to-get sponsorship has been a disincentive for some firms to engage with the idea of hiring Australians and New Zealanders. • London is strategically hiring actively across all areas: IP, IT, litigation, construction, financial services, funds, corporate finance and capital markets. • Speculative approaches are not working. Middle East • Middle East is slowly picking up but it’s still pretty tough. • Many firms are now requesting that new hires already have regional experience. • Take any foot in the door you can get.

YEAR 5

YEAR 6

YEAR 7

YEAR 8

YEAR 9

Momentum Legal Salary Survey 2011 and are for large firms (with 19 or more partners or directors). The Australian data is from the Dolman Salary survey and are for top-tier firms.

China and Hong Kong • Looking for Chinese (rather than English) lawyers in Hong Kong. • Need language skills. Requesting fluent Mandarin for most transactional roles. Japan • Need Japanese language skills. • Smaller offices with a broad work platform. Singapore • Potentially going to be a lot of growth – international firms are dramatically increasing office space. • Less of a need for language skills. • Often a regional office doing South East Asian work, with much coming from Indonesia and India over the last couple of years. United States (California and New York) • Very limited positions. • Need to be a “superstar” and even the “superstars” don’t get jobs. LT

LAWTALK 793 / 13 APRIL 2012

At the helm of privacy and data protection for iconic broadcaster BY HANNAH GRANT Two and a half years ago New Zealander Polly Ralph landed her dream job. There are many in-house lawyers (and journalists for that matter), who would sacrifice their right arm for the opportunity to work at the British Broadcasting Corporation (BBC). Ms Ralph still has all her limbs, along with now solid experience at a reputable and internationally renowned organisation. With headquarters in London, the BBC leads the broadcasting world. Roughly 60 million people read, watch or listen to BBC content every week in the United Kingdom. Globally, a further 166 million people consume its content and in some countries, it is the only source of accurate and impartial news. As the world’s largest broadcaster, it is important that its data protection regime is watertight. This is where Ms Ralph comes in. She works in the BBC’s legal department, as a senior advisor specialising in data protection. Ms Ralph manages a team of lawyers who are specialists in information law. She provides advice to the business on regulatory

LAWTALK 793 / 13 APRIL 2012

“

For someone working in privacy and data protection, the depth and breadth of issues that crop up at the BBC are, in my view, hard to beat.

”

POLLY RALPH

developments and any implications they may have for the BBC. “For example, under a new regulation, all United Kingdom organisations are now required to ensure that we seek users’ consent before we set a cookie on their device,” she says. “My job is to ensure that we comply with the letter and the spirit of the regulation (which is to protect individual privacy online), without undermining the user experience on BBC websites.’’ Equally, if an application was being produced by one of the BBC’s future media and technology teams, Ms Ralph would work with them to ensure that privacy principles are built into the product design. As a global organisation, the BBC processes data in many different countries so there are many international privacy regulators to deal with. In this respect, contract drafting is an integral part of Ms Ralph’s job, especially for situations where the BBC is out-sourcing or off-shoring personal data. “A particular challenge we face is that most European data privacy regulators believe that the

WORKING OVERSE AS

The draw of the Channel Islands When he left Chapman Tripp in Wellington in 2005 for his traditional OE, Peter German bypassed the conventional route to London. He became one of many New Zealand and Australian lawyers who went, instead, to the Channel Islands. What was to have been a three- or fouryear sojourn has not ended, however. Peter has joined the growing number of overseas lawyers who have now settled in Jersey. Originally out of Chapman Tripp in Wellington, Peter went to Carey Olsen as a senior associate. Recently he was made a partner in Carey Olsen’s corporate and finance team. Peter’s specialisations in finance, real estate, international banking and corporate work have had him involved in some large and complex matters. He received instructions from Deutsche Bank AG in respect of its financing of Chiswick Park, a large commercial office complex in West London which was also the UK’s first securitisation of commercial real estate assets since the onset of the financial crisis.

Peter also acted for the syndicate acquirer of the CPA Global group by scheme of arrangement as well as for Eurohypo in its recent £116 million and £20 million financings of London property. “Great work indeed,” he finds. As self-governing dependencies of the British Crown, the Channel Islands enjoy their own legislature and attractive tax regime. This has contributed to the islands becoming world-class finance centres which ensures that professionals of the highest standards are drawn there. Professional service practices of excellence, including multijurisdictional law firms, global accountancy and tax practices are well established in both Jersey and Guernsey. A symbiotic relationship with the UK − London in particular − has historically introduced much work to the island. The benefits for other world economies of working alongside the Channel Islands are also quite marked. Europe and the emerging market economies of China, India and Russia have not been slow to take advantage of the favourable

[Six lawyers holding current New Zealand practising certificates are shown as resident in Jersey.] LT

“For someone working in privacy and data protection, the depth and breadth of issues that crop up at the BBC are, in my view, hard to beat.

She says that her transition between the two jurisdictions was relatively smooth as New Zealand’s Privacy Act and the United Kingdom’s Data Protection regime are similar in many ways.

It is very important to get a head start

Along with these advantages, another factor is now tipping the scale even more in favour of the Channel Islands. This is the stringent and ever more complicated steps England has put in place to gain a work visa. There is still a requirement in the Channel Islands for candidates who do not have a British ancestor to obtain a sponsored visa, but Carey Olsen has a 100% track record in gaining work permits for qualified lawyers, and those who have made the relocation says they have found it to be relatively hassle-free.

The BBC is an inspiring organisation to work for and her experience thus far has been invaluable, Ms Ralph says.

Ms Ralph was enticed to England for both travel opportunities and career progression.

Before leaving New Zealand, she worked in the investigations team at the Office of the New Zealand Privacy Commissioner, investigating alleged breaches of the Privacy Act.

As a further draw for the antipodean lawyer wishing to gain high quality experience, is the lifestyle element. While work hours and expectations would match those required in London, there is the added draw of beaches, fresh green fields and the warm climate. That is combined with a cafe culture offering first class restaurants, easy commutes and attractive housing, with simple holiday access to UK and Europe.

while to get your foot in the door.

majority of countries outside Europe do not have adequate legislation in place to protect personal information. We are therefore prohibited from transferring personal data to those countries, unless we have a separate data transfer contract in place,” she says.

After completing an LLB (with privacy and media law focus) and a BA, majoring in Italian, Ms Ralph was a legal adviser specialising in privacy at national Police headquarters.

conditions and high levels of expertise available there.

Polly Ralph

on seeking prospective employment in London before you get on the plane to move half way across the world, Ms Ralph says. “I had telephone interviews for my role at the BBC before I left New Zealand. Recruitment seems to run at a much slower process in the United Kingdom (for example, a three-month notice period is fairly standard) so it can take a

“It’s also an exciting time for privacy law in general in the United Kingdom. The Leveson Inquiry (the two-part inquiry set up to investigate the role of the press and police in the [News of the World] phone-hacking scandal) has put a spotlight on press intrusion into private lives and this area of law feels like it is changing swiftly,” she says. Ms Ralph loves London and all the opportunities it presents, but she says New Zealand will pull her back one day. “I don’t have a fixed time-frame but I will definitely return, possibly via a stint in Australia. I adore London, but I imagine there’ll come a time when I’ll want to be closer to home and family,” she says. LT

LAWTALK 793 / 13 APRIL 2012

LAW REFORM REPORT Recent submissions The New Zealand Law Society recently filed submissions on: • Review of the Family Court • Vulnerable Children – a Government Green Paper • Financial Markets Authority draft guidance on Effective Disclosure • Family legal aid, proposed fixed fee framework • ACC legal aid, proposed fixed fee framework • Privacy (Information Sharing) Bill • Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009 The submissions are available at www. lawsociety.org.nz/publications_ and_submissions/submissions.

•

Legal aid – update The Law Society has recently made submissions and spoken out on proposals to introduce fixed fees for criminal, family and ACC legal aid. Key points made in submissions on the family and ACC fixed fees proposals are noted below.

Family legal aid • If the proposal in its current form proceeds, there will be an irreversible exodus of family lawyers from the legal aid system, with major consequences across the Family Court, social services and the legal profession. Over 72% of family lawyers surveyed by the NZLS said they will significantly scale back or cease legal aid work if the current fixed fee proposal is introduced. • The proposal will severely impact on access to justice and promote inequality of arms between privatelyfunded and legally-aided parties. • Legal aid is intended to ensure people with insufficient means receive efficient and effective legal services. In the field of family law, there is the additional factor of

LAWTALK 793 / 13 APRIL 2012

•

the interests and protection of children who are drawn into adult disputes. Reduced funding for legal representation will result in a twotier justice system which is contrary to the objectives of the Family Court. All New Zealanders should consider the flow-on effects of what is proposed. Fewer lawyers means more self-represented people in the Family Court, resulting in delays and cost. Cutting the time lawyers can spend on a matter also means fewer family disputes will be resolved before they get to court. The Ministry of Justice’s calculations are out of kilter with the real costs of a family legal aid case, and the ministry needs to reconsider its data and assumptions. The NZLS submission provides details about the costs faced by family legal aid lawyers. The Law Society believes there are a number of ways the government’s aim of reducing justice system expenditure could be achieved. However, the current approach is piecemeal and a more holistic view of the family law area is needed. The recent NZLS submission on the Family Court review identified options for significant savings in the Family Court, and the Law Society believes introduction of fixed fees should be deferred until the review is completed. The ministry should consider a pilot or staged roll-out of the fixed fee framework.

ACC legal aid • The level of the proposed fixed fees grossly underestimates the actual cost of conducting ACC cases. Current ACC legal aid grants are inadequate, and the proposed fixed fees are an estimated 19.5% further reduction. • There is already a significant pro bono element to the ACC legal aid work undertaken by a small group of experienced and dedicated lawyers. A further big reduction in payment carries a very real risk that that group will scale back or cease ACC legal aid work.

• The ministry is asked to reconsider whether the cost of ACC legal aid is significant enough to threaten livelihoods, access to justice and the quality of legal representation.

Trust law – disclosure of reasons for trustee decisions The Law Society supports giving the courts power to order disclosure by trustees of the reasons for their decisions. In a submission on the Law Commission’s fifth issues paper in the current review of trust law, the Law Society says that in appropriate cases the court should be able to review a trustee’s decision, to determine whether it complies with the law. The new provision should allow the court to order disclosure where a beneficiary can show that the beneficiary has reasonable grounds to believe that the trustee has not exercised a power lawfully or will not exercise the power lawfully. It says the new provision should be about disclosure, and a clear distinction should be made between disclosure and whether the courts will actually interfere once they have reviewed a trustee’s decision. The submission was prepared with assistance from the Law Society’s Trust Law Review Working Group, formed by its Property and Family Law Sections.

On the agenda The Law Society is currently preparing submissions on numerous bills and government discussion documents. Members are welcome to contribute comments to the Law Reform Committee, specialist committees and sections preparing the submissions. For a full list of upcoming submission deadlines and information about how to participate, visit http:// my.lawsociety.org.nz/law_ reform/work_in_progress. For more information on NZLS law reform activities, contact vicky. stanbridge@lawsociety.org.nz. LT

EFFECTIVE PRACTICE Looking for someone in New Zealand’s larger firms Elsewhere in this issue we have looked at New Zealand lawyers and the lure of working overseas. While there is competition in a New Zealand versus Rest of the World sense for lawyers, there is still competition among nonentry level lawyers for jobs with the bigger local firms. To give a guide to what is valued in New Zealand, LawTalk asked three people closely involved in recruitment for New Zealand’s large law firms the following: “What experience, attributes and personal qualities do you look for when interviewing lawyers with more than two years’ experience for roles in your firm/large law firms?” Their replies: Christine MacGregor is the HR Director of Bell Gully. An experienced HR practitioner within New Zealand, the UK and Japan, Christine was previously HR Director for Goldman Sachs & Partners (NZ) Ltd and HR Manager at Ernst & Young New Zealand. At Bell Gully, we are consistently involved in high-profile and interesting work from our varied client base. This allows us to work alongside some of

New Zealand and global law firms.

New Zealand’s most talented business and legal minds, and helps us attract great talent when we look to recruit experienced lawyers into our firm.

Work history

Our legal practice is divided into five main departments − Corporate, Banking and Finance, Litigation, Property and Tax. We also have a number of practice areas across those areas, such as employment, resource management, government, climate change, insolvency and technology. As a foundation, experienced lawyers are expected to have excellent knowledge of relevant legislation, together with knowledge of case law precedents in their speciality area. It takes more than just demonstrating an excellent grasp of the law to succeed at Bell Gully. We recruit people who show an absolute commitment and motivation to providing the best service to our clients, acting with absolute integrity and professionalism, and who enjoy being part of our strong collegial culture. We believe that it is this culture that sets us apart from our competitors – there is a strong sense of fun, collegiality and integrity at Bell Gully, and we look for these shared values in those who join the firm. Carla Wellington is a Principal Consultant with Momentum Consulting Group and has specialised in legal recruitment for the past 8 years. Before entering recruitment she was a solicitor at large

PRACTICE TO GROW A MANAGEMENT LOYAL CLIENT BASE, SOFTWARE FOR THE USE A LOCAL PRACTICE MANAGEMENT SYSTEM. FUTURE OF LAW PRACTICE

The first thing I look at when considering applicants for large law firm roles is where they currently work and have previously worked. A good predictor of “fit” in the intellectually rigorous and demanding environment of a large law firm is prior experience, preferably for at least two years, working in a similar type of firm. If an applicant has not previously worked in a large firm, or hasn’t worked in the same area of practice, then I look at their work experience to determine if they have sufficient transferable skills and knowledge.

Academics A strong academic record (at least a B+ average across the law papers) is generally a prerequisite for employment at a large firm, even several years after graduation. If an applicant’s grades are not strong I will enquire whether there were any extenuating circumstances which I can communicate to the hiring firm.

Duration of previous roles If an applicant has stayed in roles for a short time, then I question them about the reasons for their moves. At the reference checking stage, I ask their referees why they left their last job and whether that employer would rehire them. All employers want to hire people who will get along with colleagues and represent the firm well, so I also note how they behave in their interactions with me and our support staff.

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LAWTALK 793 / 13 APRIL 2012

EFFECTIVE PR ACTICE Personal qualities As well as the things all firms look for, such as professional grooming, confidence and eloquence, for large firm applicants I’m also looking for evidence of all round achievement (which indicates that they are organised and can handle a large workload) and resilience. The latter quality is harder to ascertain, but might be inferred from a combination of factors such as work history and a discussion of their career highs and lows. Vivien Maurice is the People and Performance Director of Minter Ellison Rudd Watts Lawyers and leads the national human resources team. She has worked in human resources management in other large law firms in New Zealand, the Health Research Council of New Zealand, Auckland City Council and New Zealand Income Support. Like all employers we want the best staff we can get. And that remains a challenge. We look for a number of core qualities we think are essential for staff

so that they can contribute to the growth and success of the firm, as well as having a fulfilling career with us. Firstly we look for solid experience and success in another highly-regarded law firm. From two-years-on candidates usually comes the beginning of specialist expertise in a practice area so we interview to test the quality and depth of that expertise and the relevance to the kind of work the firm does. Of course, as candidates become more senior so too does the depth of skills we look for. Academic success is important even for those candidates with experience. We prefer that candidates are admitted to practice in New Zealand. At all levels of seniority, core legal skills need to be excellent. The important ones for us are client services skills – a willingness to go the extra mile to get the best outcome for the client and an ability to use commercial acumen to understand the client’s business and what is important to them. Great practice management skills, quality writing skills, and good business development skills or the beginning of these skills, are important. And for more senior staff, leadership skills are crucial. Just as importantly, we look for

strong interpersonal skills. A lot is written about “soft skills” or emotional intelligence, but these qualities make all the difference. When candidates have this kind of talent they stand out. At interview, candidates can expect to be asked for their experience of situations which show their self confidence, self awareness, the ability to create rapport and listening skills. And finally, we look for people with a strong desire to be part of a high performing team. LT

Law firm size We really are a land of small law firms. Law Society information shows that in March 2012 New Zealand had 1944 law firms. Of these, 1851 – 95.2% − had five or fewer partners/directors. Looking back over a decade, it appears the proportion of small firms has grown slightly, as it was 94.5% in 2000. With just under 67% of New Zealand’s lawyers working for a law firm, that also means that the average sized firm is 4 fee earners. LT

Top at sentencing submissions Auckland University student Nicholas Dobbs emerged as the victor in this year’s Sentencing Competition after the final in the Auckland High Court on 26 March. He and fellow finalist Lee Lon Wong, also from Auckland University, emerged from the 25 competitors who entered the contest. The judges, Justices Ellis and Courtney, commented on the high standard of presentation and the engaging submissions of both finalists. Now in its fifth year the competition involves students from Auckland and Waikato Universities and (for the first time this year) Auckland University of Technology. It is organised by the High Court Judges’ Clerks with the assistance of the Hamilton District Court and the law students’ associations of the respective universities. The students participate in a fictional sentencing scenario which is designed to test their skills of advocacy before High Court Judges. Competitors are

LAWTALK 793 / 13 APRIL 2012

Winner Nicholas Dobbs presenting his sentencing submissions. Runner-up Lee Lon Wong is seated behind him.

assigned to represent either the defence or the prosecution and must make both written and oral submissions. To reach the final, Nicholas and Lee had to deal with problems based around cannabis cultivation and

violent offending in the preliminary and semi-final rounds. In the final, they confronted the case of a young woman who had admitted attempting to procure the murder of a sporting rival. Mr Dobbs represented the prosecution. LT

WHAT’S NEW? The digital business card

a gap in access to justice.

How often do you look at your stack of business cards and wonder how on earth you will get through them all? It is also very likely that some of your details will change before your next reprint.

The app’s release comes on the heels of funding cuts for legal services programmes and legal aid in the United States. Combined with the economic downturn, this means more people are in need of legal assistance.

As technology evolves and smart phones become the norm, companies may no longer have to waste money and trees on business card production. Within a few clicks you can now create your own impressive looking digital cards and then share them with whatever method suits you. Digital business cards are powered by QR codes so they work with any smartphone, including iPhone, Android, Windows Mobile, Blackberry and Nokia. You create your own custom digital card in less than a minute. It contains all your important information including pictures, logos, and social network links. Creators say that once a digital business card is built, anyone with a smartphone can instantly share your contact information in real time by scanning your QR code and can save your contract information with one click. You can update your information at any

New data flow program jPartner Systems Ltd and KeyTrack NZ Ltd have jointly developed and released an API interface. This now allows data to flow seamlessly between the juniorPartner program and KeyTrack’s Transaction Status Reports within the cloud environment.

Through this app, licensed Arkansas lawyers can view pro bono cases representing low-income Arkansans, sort through those cases based on legal topic and county, and request cases.

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time so your card is always current. For more information go here: www. mobileklik.net/; www.cardflick. co/instacards.

Pro bono app An interactive pro bono mobile application (app) has been developed by a law graduate in Arkansas, USA. It is the first of its kind and is available free to Arkansas lawyers who do pro bono work. New lawyer Stewart Whaley and his team volunteered time, expertise, and innovation to create the app − iProBono. Effectively, iProBono was created pro bono in an attempt to close This functionality enables the transfer of crucial data online and in real time to all the parties that have an interest in a particular transfer of land. The practical benefit to law firms from this development is that there is no longer the need to enter data into KeyTrack (such as the client’s name, address, email and phone numbers, the lawyer details and the property details). All this data is automatically entered with the click of the new “KeyTrack” button in jP, making the process seamless and efficient.

“I couldn’t fit the typical pro bono client scenario into my normal business day,” Mr Whaley said, “but I knew I wanted to do something to help low-income Arkansans achieve better access to justice.” Mr Whaley is an advocate of technology’s ability to enhance access to, and delivery of, legal services. Arkansas Legal Services Partnership and Access to Justice provide the additional support needed to run the iProBono project. Legal Aid of Arkansas and the Centre for Arkansas Legal Services are nonprofit organisations that provide free legal services to low-income Arkansans with civil legal problems, including orders of protection for domestic abuse victims, uncontested guardianships of minors, consumer issues and public housing. The iProBono app can be viewed in the iTunes store or downloaded through iTunes. LT Ultimately, KeyTrack envisages “sharing” data in a secure online environment with the New Zealand banking industry, all local councils (providing automated LIM reports) with real time settlement notification to councils, Quotable Value, Land Information New Zealand, the insurance industry and more, all with the click of one button, KeyTrack and jPartner Systems state. There is no cost to join KeyTrack, so a law firm can be up and running with the KeyTrack program in a few hours. LT

LAWTALK 793 / 13 APRIL 2012

FROM THE COURTS The Kiwi cricketer, the apparently impecunious IPL impresario and the truthless tweet By Ursula Cheer* The successful defamation claim by Chris Cairns against Lalit Modi − Cairns v Modi [2012] EWHC 756 (QB) − made headlines worldwide, though possibly more so in New Zealand than elsewhere.

sent by Modi in 2010 to his Twitter followers in which he stated that the reason Cairns had been removed from the Indian Premier League auction was because he had a “past record in match fixing”.

As a defamation case, the decision itself is not extraordinary.

(Mr Modi also sent a more ambiguous statement in reply to a query from the Cricinfo website, resulting in an article on the website which repeated the allegations. Cricinfo settled with Mr Cairns for this publication, paying him a total of £15,000).

However, because the world remains fixated on the internet and associated forms of developing media, the fact that the method of publication in this case was a tweet and that this was the first time such a case has gone to full trial in the United Kingdom lent the matter more prominence than it might otherwise have had. Although tweeting might be seen as less likely to give rise to defamation because it is a form of social media, in fact it is being used to publish much more than gossip. Journalists enthusiastically tweet multi-forms of news, including sport and live courtroom reporting. Where factual matter is being tweeted, the risk of defamation might be higher, because the limit of 140 characters per tweet can increase the tendency toward ambiguity in messaging. Nonjournalists using Twitter who have no basic training in civil liability such as defamation, may be at higher risk of breaching the law. Therefore, in terms of assisting online users to learn the rulebook about driving on the “information superhighway”, the Cairns decision does have educative value apart from attempting to vindicate Mr Cairns himself. Cairns’ claim was based on a tweet

LAWTALK 793 / 13 APRIL 2012

As Mr Justice Bean noted in the High Court, the defamatory meaning of the tweet was obvious. To state of a sportsman that he is a cheat in relation to his craft is serious, though, as the judge suggested, not as serious as suggesting something like involvement in terrorism or sex offending. There was some brief preliminary skirmishing in which Modi sought and abandoned a strike-out based on an argument that because he had so few Twitter followers (the parties agreed on a figure of 65), no real and substantial tort had occurred. That figure of 65 was to be relevant, however, to the later matter of damages quantification. In the main hearing before a judge alone, Cairns needed to do little to satisfy the plaintiff requirements of the tort. His pleadings disclosed that false (and assumed malicious) statements had been published about him by Mr Modi. The onus then fell on Mr Modi to establish some sort of defence on a balance of probabilities. He pleaded truth, but refused to take the witness

stand himself (much to Cairns’ distress), relying instead on his witness statement, other witnesses, and on hearsay, in particular, in a statement from an absent party. The result was a hearing in which, to the public, it appeared Mr Cairns was on trial, as he faced a persistently aggressive cross-examination from Mr Modi’s counsel. That, too, featured in the damages outcome. Although both parties could have called expert evidence on cricket, neither did so in the event, leading the judge to note that none was needed for him to know “there is no legitimate reason for a captain in a Twenty20 match to instruct a bowler to bowl a no-ball or a wide”. However, outside of this, the nature of almost every other instruction would be a matter of opinion. The judge took some time to explain the standard of proof in civil trials and the character of evidence that can be put forward, in contrast to criminal trials. Although the balance of probabilities onus is reasonably well understood, defamation cases can tend to highlight the fact that it is applied in a flexible manner. The more serious an untrue allegation, the greater strength is required of the evidence put forward to prove truth. The standard does not change, but the manner in which it is applied does. Justice Bean signalled, therefore, the need for Modi’s case to have substance and rigour. He noted also that while in criminal cases witnesses alleging dishonesty are usually required to be available for cross-examination, in civil cases in the UK, hearsay can

FROM THE COURTS be used but the court may take into account such things as whether the originator could reasonably be in court, how contemporaneous the statement was with the events in question, the motivation of the originator, and whether the account is edited when judging the weight to be accorded to such evidence. The court noted Modi’s evidence had been collected in a variety of ways – by use of a former police officer with no Hindi skills, transcripts of some taped interviews, a change of legal representation and subsequent obtaining of the three main witness statements from former teammates of Cairns who ultimately gave evidence by videolink, and the witness statement but no court statement by Modi himself. The balance of the judgment prior to the discussion of remedies, is, in my opinion, a lesson on how not to run a case.

or even strong grounds for the lesser meaning of suspicion. Although a higher standard was applied, even a simple balance of probabilities standard would not have been met by the evidence. The remainder of the judgment deals with remedies. The damages awarded were £75,000, a not insignificant sum given that UK defamation damages are capped at £200,000 (Lillie and Reed v Newcastle City Council [2002] EWHC 1600 (QB)). The figure was elevated by a further £15,000 for aggravation caused by the way the defence was run, described by the judge as sustained and aggressive assertion of the plea of justification. Damages were assessed on the basis that Cairns was a professional cricketer of good character and reputation.

The evidence put forward by the Modi team of advance payments for matchfixing was rejected, much of it arising in an aggressive cross-examination of Cairns of which the judge clearly disapproved (“prolonged, searching and occasionally intrusive questioning”). Justice Bean accepted Cairns’ explanation that large deposits of money were for services to the company of a friend and renting a property in Dubai. At this point in the judgment, Modi’s eventual loss is clearly foreshadowed. There follows a dissection of the evidence put forward of actual matchfixing. The judge was “sceptical” about the difficulties the Modi team said it faced in obtaining evidence from some Indian witnesses (some witnesses video-linked, so why could not others?); unimpressed with partisan evidence of one witness, concerned about inconsistency and manifest absurdity in the evidence of others, and treated evidence using recall 2-3 years after the events even by honest witnesses with suspicion. Hearsay statements were rejected, as were points based on non-expert analysis of cricketing technique (when to bowl a leg stump yorker, for example), and written statements from others who admitted to cheating. In sum, no reliable evidence was provided to the court which could establish Cairns’ involvement in match fixing,

In determining compensation, the judge considered the issue of the extent of the publication. The tweet had limited publication as the parties accepted Modi at that time had only 65 followers. But the judge did not accept this meant damages should be reduced to trivial amounts, referring to the pre-Twitter case of Broome v Cassell [1972] AC 1027 to note that in defamation, “real” damage often cannot be ascertained, which is why damages are at large. The question of the extent of online publication in this context does not appear to have been examined closely as yet in defamation. It has arisen in the context of applications for the striking out of foreign claims as an abuse of process because the extent of publication in the jurisdiction is very small (which was the argument Modi’s team were running in the preliminary application referred to above, later abandoned, about lack of a real and substantial tort). Courts in print media cases have taken note of print runs in particular

jurisdictions to help answer this question. See Dow Jones & Co Inc v Yousef Jameel [2005] 2 WLR 1614, [2005] EMLR 353. In relation to the internet, this has led courts along an undesirable route of counting hits on the websites which have published allegedly defamatory material. Mr Justice Eady has pointed out that such practices are entirely arbitrary, turning the issue into a subjective numbers game. In Mardas v New York Times Company [2008] EWHC 3135 (QB), [2009] EMLR 8 [15], that judge declined to find there was no real and substantial tort where figures indicated very few hits had been made on allegedly defamatory online articles. In Cairns, Justice Bean appears to be taking a similarly appropriate approach to the issue of quantification of damages. An analogous approach was taken in New Zealand in the pre-Twitter case Columbus v. Independent News Auckland Ltd, (HC, Auckland, CP 600/98, 7 April 2000, Anderson J) where the judge was rightly unimpressed by an argument from Truth that the damage to Ray Columbus from published statements alleging he was unprofessional and greedy with the Auckland Rugby Union was less because the paper was not a more reputable publication and did not have a discerning readership which would believe what was in it. In awarding damages of $675,000, Justice Anderson took into account (among other things) the circulation of the newspaper, which he noted was wider than its official circulation. The judge also noted that written articles may “hang” around, reaching an incremental audience and reinforcing messages to those who have already seen them. This reasoning should apply to Twitter and other social media, largely because the real extent of such publication is simply unknown and using follower numbers or hits on a page is entirely arbitrary. Cairns was also entitled to an injunction. Modi has indicated he intends to appeal the damages award. *Professor Ursula Cheer is on the academic staff of the Canterbury University’s law faculty. Her research interests lie in a combination of torts, such as defamation, civil liberties, in particular, censorship, and the broad range of topics making up media law. LT

LAWTALK 793 / 13 APRIL 2012

LE T TERS TO THE EDITOR

LawTalk seeks letters to the editor, particularly on issues of relevance and interest to the profession. Letters should be up to 400 words and include the name, firm or practice and location of the writer. Letters will not normally be accepted if they have the same wording as a letter submitted to the editor of a different publication, or if they breach requirements or standards under New Zealand legislation or generally accepted publishing ethics (as exemplified in decisions of the Press Council and Broadcastings Standards Authority, for example). The Editor reserves the right to publish an edited version of a letter, or not to publish at all. Letters can be emailed to editorial.lawtalk@lawsociety.org.nz. We ask that the letter be sent in a form that does not require retyping (as a scanned PDF does, for example).

Acting Pro Bono and Legal Aid I would like to respond to the letter from Ms Alison Hill of the Ministry of Justice (MoJ), published in LawTalk 790, 2 March 2012. Ms Hill contends that a warning issued by the former Legal Services Agency (LSA) to an Auckland barrister “was not because the barrister did pro bono work, but because he did not have approval under the Legal Services Act to offer legal aid services in the particular area of law of the case”. Speaking for the MoJ Ms Hill concludes: “We welcome lawyers undertaking pro bono work on legal aid cases so long as they are approved in the relevant area of law.” However, the overall position adopted is essentially jesuitical. An approved provider who carries out necessary work on a case will usually not need to act pro bono, as he or she is rendering services likely to be covered by the grant of legal aid. It is the

E-dealing problem The article in LawTalk 789, 17 February 2012 concerning the sole practitioner failing to release an e-dealing pursuant to her undertaking has prompted me to write concerning a situation I have encountered more than once. This is where an inability to release a dealing pursuant to an undertaking already given has the potential to cause serious problems. This can arise when one is acting for a vendor. As is the usual practice, I send a letter of undertaking to the purchaser’s lawyer that I have certified and signed the dealing, and to release it immediately upon receipt of the settlement funds. In our office a trusted employee attends to the submitting and releasing of the transaction immediately on receipt of the settlement funds to ensure it has the priority it warrants. Settlement

LAWTALK 793 / 13 APRIL 2012

(usually junior) lawyer who is seeking to gain experience on a particular category of legal aid work in order to qualify for approval who will be prepared to work pro bono. Doing so in order to gain benefit from working with a more experienced practitioner is a time-honoured and valuable tradition, from which many of today’s leading advocates have benefited. In support of its bureaucratic stance, the MoJ relies on s75 of the Legal Services Act 2011. This states that a person “must not provide a legal aid service” unless approved by the Secretary for Justice to provide that service. However, s75 is in a part of the Act which is stated to apply to providers of legal services, not to those who are not approved providers. On a purposive interpretation, s75 does not impose a ban on the giving of pro bono assistance by a non-approved legal practitioner to a legal aid provider or his or her client, but only on the claiming of payment for legal services rendered by the nonthen occurs, everything is completed and all is well. But, occasionally not all goes according to plan. It arises when the purchaser’s lawyer, subsequent to my certifying and signing, goes back into the e-dealing and changes some details of what has already been entered. On some occasions we were not aware of what had occurred because no one told us. We then receive the settlement funds. I then learn from my trusted staff member that she cannot release the dealing. My initial reaction is that I erred in sending the letter of undertaking as to certifying and signing when in fact I had not carried out those crucial steps. But on each occasion found I had certified and signed. What prevented the dealing being released was the purchaser’s lawyer re-entering Landonline to amend some details without telling us.

qualified junior. Thus, so long as the legal aid provider makes no claim for payment in respect of the junior’s work – as is inherent when work is done pro bono – there is no contravention of the 2011 Act. I confess that I do not understand why the MoJ is actively opposing pro bono work on legal aid files by practitioners who lack provider approval, whether junior or indeed senior counsel, given the potential significant saving of scarce legal aid funds, at the same time as it is savagely pruning the legal aid budget overall. Surely having qualified (but not approved) legal practitioners work under supervision for free, while the legal aid provider remains legally answerable for the quality of the overall legal services provided, has obvious benefits for all involved including the tax payer? The MoJ needs to reconsider this highly dubious in-house legal edict, unquestioningly inherited from the LSA. Dr Rodney Harrison QC Auckland This wiped the certifying and signing previously I had entered. Thankfully, on each occasion this occurred I was in the office so I could attend to the necessary further certifying and signing. But what worries me greatly is if this should occur when I am away from the office on the day of settlement when my staff members discovered that the purchaser’s lawyer has amended the dealing thus deleting the certifying and signing. I would not be available to carry out the certifying and signing again. I ask myself what the situation would be if the purchaser’s lawyer has informed us of the need to certify and sign again which cannot be carried out. Does this mean that the vendor is in default as far as settlement obligations are concerned? The other situation is where the purchaser’s lawyer has not told us of the amendment to the e-dealing with

LE T TERS TO THE EDITOR the result that we cannot release the dealing immediately on receipt of the settlement funds. Would I be in default of my undertaking in not being able to release the dealing? I first became aware of this problem a few years ago. I did take the matter up with LINZ in detailed correspondence. As far as I can recall LINZ never did seem to grasp the point I was getting at. The point I made was that a purchaser’s lawyer should not be able to re-enter and alter the e-dealing once he or she has received the undertaking from the vendor’s lawyer as to certifying and signing without first obtaining the vendor’s lawyer’s co-operation. If that provision was in place that would prevent any of the problems which I have described above arising.

Compulsory reading I have read Warren Pyke’s review of The Rule of Law by Lord Bingham [LawTalk 791, 16 March 2012, page 22]. This book should be compulsory reading for all lawyers who seek to exercise any judicial office. In particular, it should be a pre-requisite to any appointee to the quaintly named Lawyers Complaints Service. What qualification and training do these people possess in the rule of law and also in the principles of natural justice? Anthony Morahan Barrister, Auckland

Editor’s response: An answer to your question can be found in the Lawyers and Conveyancers

Rodney Lewis Partner, Rodney Lewis Law Hamilton

The Law Society’s Property Law Section responds: The Property Law Section agrees with Mr Lewis’s comments about last minute changes to electronic instruments. If they have been certified and signed by the other side, it is not appropriate to make unilateral changes on settlement day and to expect re-signing on that same day. The situation is analogous to sending a replacement transfer to a vendor on settlement day, and then demanding for it to be signed on that same day. A necessary safeguard of the system is that a certified and signed instrument

Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008. Regulation 10 requires that: “The Law Society must, in administering the complaints service, take all reasonable steps to ensure that the complaints service − (a) deals with complaints in a fair, efficient, and effective manner; and (b) achieves consistency and quality of service throughout New Zealand.” Complaints to the service can result in a matter or matters being considered by a Lawyers Standards Committee. Regulation 14 provides that lawyer members of Lawyers Standards Committees must be appointed by the New Zealand Law Society Board.

must be registered in the exact form that it was signed. That goes to the heart of the non-repudiation aspect of e-dealing. Any change made by the other side (or anyone) will remove the certifications and necessitate re-signing by the solicitor. A warning message is displayed if any attempt is made to change a signed instrument, advising that certifications will be removed. Please extend a professional courtesy to the lawyer on the other side and carefully consider the need to make the change. Yes, clients change their minds, but lawyers need to manage how and when that occurs. This topic has been covered on two occasions in the Property Law Section’s quarterly publication, The Property Lawyer (volume 7, issue 1 and volume 8, issue 3). Board must apply the following criteria (regulation 15): “(1) To be eligible for appointment as a lawyer member of a Standards Committee, a person must have practised as a lawyer for a period or periods aggregating not less than 5 years. (2) In appointing any lawyer member of a Standards Committee, the Board must have regard, among other things, to − (a) the person’s personal attributes; and (b) the person’s ability by reason of his or her skill, experience, and judgement to deal with and make appropriate decisions in respect of complaints.” Editor

In making the appointments, the

Free and open discussion I think it is healthy when people like Jim Farmer, Tony Molloy and Antony Grant show the moral courage to put their heads above the parapet and comment on aspects of our legal system.

implementation by Power, lack of specialisation on the bench and the effect of that on criminal trial and appeal outcomes, or in the civil arena, the extent of chauvinism and, if it exists, its effect on female members of the profession, etc. Gerald McArthur Tauranga

In my opinion there has historically been too much kowtowing to the upper echelons in our justice/legal system, and that has constipated free debate, which in turn has worked against the system being as good as it should be; that is for those it ought to serve – the New Zealand citizen (as opposed to the judiciary, the government or the legal profession). This letter is just a short note of encouragement for further open debate/discussion. There are areas where further debate is warranted: such as the Bazley report and its

Independent Resource Management Specialist Advice, strategy, advocacy, dispute resolution for your clients Waterfront Chambers Wellington

Philip Milne Barrister

021 803 327 or PA 04 499 6653 philip.milne@waterfront.org.nz milnelaw.co.nz

LAWTALK 793 / 13 APRIL 2012

BRANCH NEWS WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869

‘Meet the Grads’ boat cruise Wellington law graduates set sail on the high seas of the capital’s harbour for an evening of networking and merriment. Despite the bad weather, over 50 attendees cruised the harbour for several hours, enjoying a full buffet meal and making friends along the way.

Enjoying the Wellington harbour cruise (from left) Annabel Martin, Jono Boyce and Sam Mossman.

WHANGANUI NEW ZEALAND LAW SOCIETY NZLS EST 1869

Whanganui elects new president and council The Whanganui branch of the New Zealand Law Society has elected a new council and president. Incoming President Kathryn Crooks, partner of Armstrong Barton Lawyers, has made history as the first woman to become the president of the branch.

Having a capital time on the waters of Wellington harbour (from left) Nikola Pejic, Natalie Pierce, Wilson Chau, Hadleigh Pedler and Nic Keating.

Harry Mallalieu, also a partner of Armstrong Barton Lawyers, was elected vice-president. Council members elected are: David Woodbridge, Stephanie Burlace, Richard Leith, Jane Kite and Sarah Little. Incoming Whanganui branch President Kathryn Crooks with outgoing President John Unsworth.

LAWTALK 793 / 13 APRIL 2012

AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869

Auckland Young Lawyer fashion evening Auckland Young Lawyer committee member and Kensington Swan lawyer Sophie Gilmore checks out a pair of shoes at the Juliette Hogan Fashion Evening held in the City of Sails on the last Thursday in March. There was a great turn out at this regular social networking event for young female lawyers.

Sophie Gilmore

BR ANCH NEWS

China Law Society visits Auckland and Wellington A delegation of six members of the China Law Society visited the Auckland and Wellington branches of the New Zealand Law Society. Dr John Cadenhead, retired District Court Judge, spoke to the group in Auckland. New Zealand Law Society representatives enjoyed an interesting exchange of information and discussion on legal issues in the different countries.

GISBORNE NEW ZEALAND LAW SOCIETY NZLS EST 1869

Gisborne branch AGM The Annual General Meeting of the Law Society’s Gisborne branch will be held Friday 27 April at 4:30pm at the Poverty Bay Club. Drinks and nibbles will be provided.

The China Law Society visits: (from left) He Peng, project coordinator China Legal Exchange Center; Ma Aini, Secretary General Law Society of Shaanxi Province; Dr John Cadenhead, retired Auckland District Court Judge; Wang Jing, executive deputy prosecutor general People’s Procuratorate Ningxia Hui Autonomous Region; Judge Cheng Weijan, executive vice-president Law Society of Changchun Jilin Province; Lang Jia, executive council member Law Society of Kunming Yunnan Province; and Lai Liangmeng, Vice-President Law Society of Guizhou Province.

PROFESSIONAL LEGAL STUDIES COURSE

“Professional, flexible and pragmatic” ED CROOK, RUSSELL MCVEAGH

Elections for the president, vice-president and council members will be held at the meeting. If you have any queries please do not hesitate to contact zaria. weatherhead@lawsociety.org.nz.

WAIKATO BAY OF PLENTY NEW ZEALAND LAW SOCIETY

NZLS EST 1869

Waikato young lawyers to meet judiciary Waikato Bay of Plenty lawyers who have been practising for less than 5 years are invited to come and meet the judiciary.

“We have used the College of Law programme for our graduates for over 7 years. We have found them to be professional, flexible and pragmatic.” The College of Law specialises in practical legal training. Developed and taught by experienced lawyers, we offer the best and most flexible Professional Legal Studies courses. Make a real contribution to your career or business. Call 0800 894 172, email enquiries@collaw.ac.nz or visit www.collaw.ac.nz/plsc

The function will be held at 6pm on 26 April 2012 at the Tompkins Wake Boardroom. Tickets: $10 per person. RSVP to the convenor Katrina@ hamiltonclc.org.nz by 20 April.

LAWTALK 793 / 13 APRIL 2012

THE BOOKSHELF

cludes: s and Regulations

ndbook Series. These n a practice area of law. a of law on a regular basis will

ISBN 978-0-86472-750-3

9 780864 727503

Brookers Pubic Law Legislation Handbook

ume a comprehensive

minster Adoption Act 1947 nstitution Amendment (Request t 1947 ndment Act 1972 nstitution Amendment Act 1973 974 t 1975 gi Act 1975 ion Act 1982 1986 pplication Act 1988 l of Rights Act 1991 93 (ss 1-204, 267, 268 and 271) ct 1993 (Parts 1-4, 6) ct 1999 s 2008, Part 30

Brookers Public Law Legislation Handbook

2012

BROOKERS PUBLIC LAW LEGISLATION HANDBOOK 2012

Brings together imperial legislation, historic constitutional documents, and current legislation connected to New Zealand’s constitution and system of government. Consolidated to 1 February 2012. (Thomson Reuters, February 2012, 978-0-864727-50-3, 635 pages, paperback, $44, GST and p&h excl). LOCAL AUTHORITIES LAW IN NEW ZEALAND By Kenneth Palmer A treatise on local government which builds on a work published by the author in 1993. The book covers all aspects of the law affecting local authorities and takes a topic-based approach. (Thomson Reuters, March 2012, 978-0-864727-33-6, 1236 pages, paperback, $236, GST and p&h excl). (This will be reviewed in the next issue of LawTalk). MEMBERS’ MEETINGS, 3rd EDITION By Mark von Dadelszen Almost pocket-sized, this is a very handy little guide to how meetings should be run. Aimed at “ordinary people”, the book is organised in a logical manner to allow quick location of the appropriate information. The second edition was published in 2004. (LexisNexis, March 2012, 978-1-927149-46-1, 184 pages, paperback, $49.45, GST incl, p&h excl).

3RD EDITION

PRINCIPLES OF CIVIL PROCEDURE, 3rd EDITION By Andrew Beck

PRINCIPLES OF CIVIL PROCEDURE

Takes a principlebased approach and follows the path needed for resolution of a civil dispute in the High Court. Primarily a text, this is also useful for anyone wanting a concise guide to New Zealand civil procedure. The second edition was published in 2001. (Thomson Reuters, March 2012, 9780-864727-34-3, 352 pages, paperback, $88, GST and p&h excl). ANDREW BECK

internet.law. nz, 3rd EDITION By David Harvey Reviewed by John Edwards* Imagine you were a scholar in the early 19th century and you were asked to prepare a definitive text on the legal issues associated with paper, and printing. Where would you start, and what would you cover? You might discuss the importance of libraries, and the need for your colleagues to have access to legal texts. The regulation and licencing of presses would be important, as would the range of consequences of committing text to paper, from civil and criminal libels, to the requirements for the validity of wills and contracts, the laws of blasphemy and sedition. You’d need to deal with the law of evidence, and which and how documents were to be introduced into evidence. Variations in the uses of bills of lading and bills of exchange in different jurisdictions would need to be covered off. In short, the enquiry would soon expand into every corner of the law. This was the challenge Judge David Harvey faced in producing a text with the ambitious title internet.law.nz. Perhaps the first edition (2003) was of

LAWTALK 793 / 13 APRIL 2012

greatest interest to legal geeks interested in internet governance, the few at the criminal bar defending those of newly minted computer crimes, and tech and academic readers speculating on the theoretical challenges to be faced by then emerging technologies. By the second edition, in 2005, more and more of our clients were experiencing cyber squatting, and the dispute resolution options available from the domain name registers began to provide sensible and timely forums for the expeditious disposition of claims by innovative fraudsters who changed their names to match valuable brands, and then registered their domain name to extort a rent from the less fleet of foot corporates. Thank you, Mr Oggi and others, for your assistance in showing the potential and limitations of the old law of passing off, and the Fair Trading Act, in the new era. The third edition, published in November 2011 has piled on an extra 200 pages, and has incorporated the legislative and judicial catchup measures necessitated by the transformative developments in information technology and communications. The pace of change and the need for regular updates is nicely illustrated in the text by the concept of the “notorious instrument”. Evidence produced from a notorious instrument benefits from a presumption of accuracy. The test as to whether a given piece of technology is a notorious instrument involves an assessment of the extent to which it is accepted and discussed in the community. In 1994 GPS was sufficiently novel, and its use too restricted for the court to regard a GPS receiver as a “notorious instrument”. Four years later the court accepted that the ubiquity of the technology was such as to so qualify. The text traverses online sources of legal research, internet governance, jurisdiction, evidence, criminal law and the complexities of online commercial relationships, also covering off intellectual property, privacy, bill of rights, and a clutch of torts. The concluding chapter signals a number of

THE BOOKSHELF areas which will no doubt be expanded upon in future editions as litigation and legislation grapples with concepts of “practical obscurity”, the implications of social networking and cloud computing. Internet.co.nz is not a specialist publication. It will certainly serve the specialist practitioner well, and is likely to be a required addition to litigators’ bookshelves. However it will become increasingly important for generalists whose clients’ businesses expand into or are increasingly transacted across digital media.

The fact that at the time of publication no notices had yet been issued under the Copyright (Infringing File Sharing) Amendment Act, the Law Commission had just recommended a right to take down photographs from sites such as Facebook, and a “right to be forgotten” online is being debated in Europe means that a fourth edition is as sure a thing as the iPad 4. Until then internet.co.nz 3.0 has everything the practitioner needs to know about the intersection of law, the web and beyond. As befits the subject matter, internet.law.

nz is also available as an e-book which will be a relief to those who feel the need to take it with them everywhere, but find its bulk and weight inconvenient. internet.law.nz, 3rd edition by David Harvey. LexisNexis, November 2011, 978-1-877511-97-4, 1040 pages, $189.75 (GST incl, p&h excl). Available in e-book and paperback. *John Edwards is a barrister specialising in information and privacy law, public law and health law. He is a member of the Law Society’s Human Rights and Privacy Committee.

E-book developments

KNOW YOUR RESOURCES

Kluwer Law International has launched an e-book site which enables downloading of over 100 legal books in epub format to an Adobe Digital Editions reader (available for free download). Kluwer Law (part of Wolters Kluwer, which owns New Zealand’s CCH) publishes a range of books on international trade and business law. Books are priced in Euros and can be purchased using Visa or Mastercard. Make sure you choose wisely: the Refunds Policy is stated succinctly: “No refunds.” The site is located at http://kluwer-law-e-boek. mijnboekhandelaar.com/.

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.

Westlaw makes NZ debut Any American law student or lawyer grows up in a world where one of life’s choices is LexisNexis or Westlaw – a bit like Coke or Pepsi. Both are huge databases of legal information which have been established since the 1970s. LexisNexis’s New Zealand arm has offered access to New Zealand online products and services under the brand LexisNexis, but the owner of Westlaw – Thomson Reuters – has provided the locallydeveloped Brookers Online service until now. Westlaw NZ is being launched in mid-April. Thomson Reuters says it is a stand-alone site which is separate from the Westlaw International and Westlaw Next sites. The service includes all the content from Brookers Online along with enhancements to searching and navigation. One key new feature which is being introduced is a “Pay-PerView” (PPV) option. Thomson Reuters says it is the first online legal research service in New Zealand to offer this. PPV – which is a longstanding feature of Westlaw – allows users to search in areas outside those covered by their subscription. This is “virtually all New Zealand and Australian content on Westlaw NZ”, according to promotional material. Thomson Reuters says Brookers Online subscribers who move to Westlaw NZ will be able to access both systems for two months before Brookers Online is “switched off”. Getting copies of books and products mentioned in The Bookshelf

Agriculture Collection At first glance, quite a way from routine legal practice. This database brings together a large number of journals and magazines which deal with a wide range of subjects connected to agriculture. The database will be useful, however to lawyers advising companies involved in primary industry, intellectual property specialists and anyone working in the field of agribusiness and trade. As with all the EPIC databases, the information is very current and covers the period from 1980 to 2012. Many of the 5.1 million articles are available in full-text. LT

at the

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Information provided in The Bookshelf is intended to assist New Zealand lawyers by giving details of new sources of legal information which may help them in their work. It does not constitute an endorsement by the New Zealand Law Society. For further information relating to content or purchase of the book, you should contact the publisher directly. Most books and information sources may also be accessed at one of the Law Society’s libraries in Auckland, Christchurch and Wellington.

LAWTALK 793 / 13 APRIL 2012

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

Programme

Presenters

Content

Where

When

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 Dunedin 2007 Act is performing and will examine how the standard ADLS forms have adapted to cover issues Christchurch raised under the PLA. They will focus on real property aspects. All experience levels should attend. 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 Christchurch made by a range of public, private and voluntary organisations. If you operate in the public law Wellington area or advise decision-makers, this programme offers you a practical approach to the principles Auckland and processes of judicial review.

1 May 3 May 15 May

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 diffi cult negotiators, breaking impasses, for addressing specifi c issues which participants might wish to raise and for generally enhancing skill and confi dence in this vitally important aspect of practice.

Auckland Christchurch Wellington 2 Auckland 2

1-2 May (Full) 29-30 May 30-31 Oct 7-8 Nov

Mediation Masterclass with Prof Laurence Boulle

Professor Laurence Boulle

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

Wellington Auckland

2 May (Full) 4 May (Full)

Education Law Intensive

Chair: Patrick Walsh

Given the size of the school sector and its increasingly litigious nature, practitioners should add Auckland this day to their calendar. This intensive will help all practitioners who assist boards of trustees, Wellington principals, and 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 Your computer manage their own affairs due to age-related conditions, or some disability. This webinar will cover Webinar 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.

4 May

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 Auckland 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.

4-6 May (Full)

Competition Law

John Land Tom Weston QC

Competition law is a specialised and complex area and it can be quite diffi cult 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

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 have arisen that are a cause for concern. This seminar will identify these issues and their implications. It will also consider what legislative matters you should be aware of when drafting a contract.

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 conﬂ ict 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

Insurance Law

Lindsay Lloyd Paul Michalik

The catastrophic happenings of 2011 were a wake-up call and made us realise how it is easy to be wise after the event. Things we perhaps should have contemplated, and taken into account, hadn’t been. If you have any dealings with commercial purchases or leases, bodies corporate, residential purchases or businesses you need to be aware of the pitfalls so that you can give your clients comprehensive insurance advice. This seminar will take a practical look at insurance; what it is, and the many issues that can arise, especially in relation to property.

Christchurch Wellington Auckland Live videoconference

29 May 30 May 31 May 31 May

Search & Surveillance

Michael Heron Dale La Hood

The Search and Surveillance Act 2011 brought major reform to search and surveillance powers and has subsequently had further amendments. This seminar will discuss the impact of the key changes – what are the new powers, how are they assessed, how can they be used?

Dunedin Christchurch Wellington Hamilton Auckland Webinar

5 Jun 6 Jun 11 Jun 12 Jun 13 Jun 11 Jun

SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012

A live two hour webinar will be held for smaller centres.

Dunedin Christchurch Wellington Auckland Tauranga

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 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 Wellington governance issues arising out of recent fi nance company collapses. The issues are both civil and Auckland 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 fi ve 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.

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

Litigation Skills

Director: Jonathan Krebs Deputy Director: Janine Bonifant

This highly regarded residential week-long course is open to applicants with at least three Christchurch years’ litigation experience. Based upon the National Institute for Trial Advocacy (NITA) teaching method, selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. Applications close 22 June 2012

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

Christchurch Nelson Invercargill

15 May (Full) 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

Christchurch Auckland 2 Wellington

19-25 Aug

TRUST ACCOUNT TRAINING PROGRAMMES

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 fi rst two or three years of family Auckland law practice. It works through the sort of case that will be likely to be encountered at this stage of Christchurch one’s career.

3-4 May (Full) 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 fi rst three years’ of practice with small, Christchurch medium or large fi rms. It will cover issues such as acquiring a business, funding, governance, Auckland distributions, expansion, shareholder disputes, fi nancial 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

CONTINUING YOUR PROFESSIONAL DEVELOPMENT 2012 Rural Property Intensive Held last month, the NZLS CLE Ltd 2012 Rural Property Intensive (sponsored by ASB Bank Ltd), has been praised for its wide ranging “excellent” topics and wealth of interesting case studies. Chair of the intensive Mark Tavendale emphasised that the important contribution the agricultural sector makes to New Zealand cannot be underestimated and the practice of rural law in New Zealand will only become more complex. Lawyers specialising in advising agricultural families, corporates and commercial entities are advising a sector that is becoming complicated and capital intensive. “The requirements of financiers, cooperatives and the myriad of complex legislation that applies to this sector have increased year upon year, as have the demands and expectations this places on practitioners,” he says. The presentations at the intensive offered practical information to rural practitioners. The intensive was designed to get practitioners thinking from human perspectives of their clients, rather than from legal or accounting perspectives. It aimed to help lawyers develop and enhance their skills in advising the agricultural sector. Topics included succession planning;

Chair, Mark Tavendale, of Goodman, Steven Tavendale Reid (Christchurch) making opening remarks. At the table is Chris Spargo of Blackman Spargo, Rotorua, and Michelle Harvey, ASB Regional Manager for Relationship Banking for the greater Wellington area.

prosecutions/animal welfare; the impact of receiverships in the rural sector; Emissions Trading Scheme; and topical tax issues. “New Zealand farmers and agricorporates continue to demonstrate their versatility in the face of environmental and economic challenges as well as the ability to change and grow in an increasingly changing national and world economic environment and we can justifiably claim to lead the world in safe and sustainable food production,” says Mr Tavendale.

Insurance Law − a practical guide The catastrophic earthquakes of 2011 were a wake-up call and made the

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LAWTALK 793 / 13 APRIL 2012

nation realise how it is easy to be wise after an event. We now know that there are numerous things which should have been contemplated or taken into account in terms of insurance. If you have any dealings with commercial purchases or leases, bodies corporate, residential purchases or businesses, you need to be aware of the pitfalls so that you can give your clients comprehensive insurance advice. This NZLS CLE Ltd seminar will take a practical look at insurance; what it is, and the many issues that can arise, especially in relation to property. With well-known presenters Lindsay Lloyd and Paul Michalik, this insurance law seminar will be very popular. It will take place in Christchurch on 29 May, Wellington on 30 May and Auckland on 31 May. There will also be a live video conference on 27 May in Blenheim, Dunedin, Gisborne, Palmerston North, Greymouth, Invercargill, Hamilton, Napier, Nelson, New Plymouth, Oamaru, Rotorua, Timaru, Tauranga, Taupo, Queenstown, Whanganui, Whakatane, Wairarapa and Whangarei. For more information visit www. lawyerseducation.co.nz. For registration enquiries, Freephone 0800 333 111. LT

LAW YERS COMPLAINTS SERVICE Lawyer struck off for trust account mismanagement and concealment Hastings lawyer Brian Hancock was struck off the roll of barristers and solicitors by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after he admitted misconduct charges of regularly overdrawing the advance account within his firm’s trust account and concealing this from the NZLS Inspectorate, and a charge of unsatisfactory conduct relating to dormant balances.

The charges Mr Hancock pleaded guilty to a number of misconduct charges relating to his advance account. An advance account − or firm’s interest in trust account − is the amount of money in a trust account that belongs to the practice. It is normally used to lend money to a client to cover disbursements when there is not enough money in the client’s trust ledger account for this. The trust account regulations specify that if a client’s ledger account would otherwise be overdrawn, the practice must prevent this by transferring money to the trust account, as a loan to the client, from the practice’s own funds, either directly or indirectly from an advance account (Lawyers and Conveyancers Act (Trust Account) Regulations 2008, reg 6(2)). Regulation 6(3) states that no advance account, or other account representing the practitioner’s own interest in the trust accounts, may be overdrawn at any time. The effect of overdrawing an advance account is to draw on the clients’ trust money for the firm’s own purposes. The first charge Mr Hancock pleaded guilty to was that he had overdrawn the account in a way that was persistent and substantial, in breach of regulations under both the Lawyers and Conveyancers Act 2006 (LCA) and the Law Practitioners Act 1982. [Mr Hancock’s conduct straddled both statutory regimes, so charges were laid under both these acts.] This offending also breached the requirement that a lawyer who receives money for or on behalf of any person must hold the money exclusively for that person (LCA s110(1)(b)). Second, Mr Hancock had regularly concealed the overdrawn status by completing trust account receipts retrospectively in order to show a credit entry at month end. This breached several statutory provisions requiring accurate trust account records (LCA s112(1)(a) and regs 11 and 14). It also amounted to misleading or deceptive conduct, a breach of the Conduct and Client Care Rules (Rule 11.1). Third, Mr Hancock had issued false monthly compliance certificates to the Law Society (breaching reg 17(1)). Mr Hancock also admitted a charge of unsatisfactory conduct: that as of May 2011 he held 73 trust account balances (totalling approximately $300,000) that had been dormant

for periods of more than three years and for which no statements had been given to the clients (breaching reg 12(7) (b)).

The facts An inspection by a Law Society inspector in 2007 had revealed that the two accounts that made up Mr Hancock’s advance account were, on a combined basis, frequently overdrawn, and that his monthly reports had not disclosed these overdrawn balances. Mr Hancock corrected the situation and gave an assurance that this would not occur again. At the start of a later trust account inspection in 2011, Mr Hancock openly admitted that after a short period of compliance he had been regularly overdrawing his firm’s advance account by transferring funds into his office bank account. He had developed a practice of shifting money from the trust account to the advance account at the end of each month and returning the funds after the month’s balance had been achieved in the books. He avoided detection by retrospectively showing a credit entry for month end trust balances, and by providing false trust account certificates to the Law Society. Mr Hancock admitted to the tribunal that there was a regular “money go round” to conceal the overdrawing of the trust account and his use of client money to fund the ongoing costs of his practice, such as wages and office expenses. He subsequently borrowed money to repay the trust account and no clients suffered loss.

Aggravating and mitigating factors The tribunal noted that Mr Hancock had been in practice for 36 years and had been responsible for a trust account for much of that time. He therefore couldn’t be excused as inexperienced or unfamiliar with the requirements. He had also been warned after the 2007 inspection. The offending had recommenced in a systematic and premeditated way. He had also not disclosed his wrongdoing until another inspection had begun, and only took steps to restore the trust account to its proper level once he knew the truth would be revealed. The tribunal said Mr Hancock’s conduct struck at the heart of the financial assurance scheme implemented by the Law Society in the late 1990s, in which lawyers were entrusted with responsibility for reporting trust account concerns voluntarily. It said Mr Hancock was never behind in his rent or wages, and he had allowed those costs to take priority over his fiduciary obligations to his clients. His counsel described Mr Hancock as finding himself in a “perfect storm” of workload problems, staffing difficulties and personal inefficiency, along with financial and personal difficulties. The tribunal said Mr Hancock was clearly admired by clients and colleagues alike. References showed he was a man who

LAWTALK 793 / 13 APRIL 2012

puts his clients’ needs ahead of his own administrative efficiency and good business practices. He had felt constant guilt but felt unable to seek help because he had allowed himself to become professionally isolated and was afraid of humiliation and other consequences. The tribunal said Mr Hancock was “the only person to suffer overall loss in this ‘train wreck’”. He had lost his practice and had been working prior to the tribunal hearing as a law clerk for “two staunch colleagues who came to his rescue”. The tribunal described this case as “tragic”.

Penalty The tribunal emphasised the importance of protecting the public and of maintaining public confidence in the legal profession (citing Bolton v Law Society [1994] 2 All ER 486 and Shahadat v Westland District Law Society [2009] NZAR 661). It decided that no response short of striking off would be sufficient to reflect the serious misconduct in this case. The tribunal also ordered Mr Hancock to pay $25,000 to the Law Society to cover both its legal and its inspection costs, and to reimburse the Society $3,000 for its payment of the tribunal’s own costs. LT

Criticising colleagues and overcharging A Lawyers Standards Committee has ordered a barrister (B) to refund his client $5,000 after finding him guilty of unsatisfactory conduct. The complainant had been facing serious criminal allegations, and he had hired B after the latter told him his then-lawyer was “selling you off to the Police”. The client paid B $5,000 to cover legal fees and B made an initial court appearance on his behalf. Later the client became aware that B was facing professional disciplinary action and he asked what was to happen with his case. When he was told B’s junior would take over he objected that he didn’t want the junior and he sought a refund, unsuccessfully. His subsequent calls to B went unanswered. The client complained of overcharging, saying that B had done nothing further for him after the initial court appearance. B offered no submissions or defence in response to the complaint and the Standards Committee found the allegations proven. In addition to the overcharging, the committee found that B’s criticism of the client’s previous lawyer had breached the obligation to “promote and maintain proper standards of professionalism” (Conduct and Client Care Rules, Rule 10). There had also been no instructing solicitor, a breach of Rule 14.4. The committee found that those breaches of the rules amounted to unsatisfactory conduct under s12(c) of the Lawyers and Conveyancers Act 2006 (LCA). It found that B’s overall conduct also amounted to unsatisfactory conduct under the separate test in s12(a) of the LCA, in that it had fallen short of the standards of a reasonably competent lawyer. The committee also ordered him to pay $1,500 costs to the Law Society. LT

LAWTALK 793 / 13 APRIL 2012

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

Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Canterbury Westland Branch Theon Benmar CHALKLEN Georgina Emma DIAMANTI Richard Henry LITTLEWOOD David Miller Livingstone DINGWALL Thomas David Andrew HARRE Nadia Jan MCDOWELL Amber Lynette MALLINSON Emily Miranda PARK Kate Hannah ROGERS Kiri Louise STANTON Richard James STEPHEN Gillian Margaret STUART Layton James WARD Peter William WEEKS

Gisborne Branch Wi Pere Manaaki MITA Otago Branch Monique Elena ESPLIN Lucy Victoria Rose MEHRTENS Theodore James Carlos VAISALA Jacqueline Anne HANNAGAN Charlotte Kathleen VALENTINE Lillian Grace JOHNSTONE Wellington Branch Timothy Richard MACLEAN Jane Margaret BROWN Michael Thomas WITT Vai Paula LEAVAISEETA (Sagele)

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch Phillip Drew PARSON Bernadette Roka ARAPERE Janette Mary McNAMARA Mark James UTTING Sumudu THODE Katherine Inger CARSON Ruth Claire GREGORY Gisborne Branch Marcia Josephine Matehaere INSLEY

Otago Branch Elliot Charles GOLDMAN Waikato Bay of Plenty Branch Kathryn Zoe BLACK Yashvir MAHARAHJ Nicola Louise NOORT Wanganui Branch Raukawa Rangihuia Mamaeroa SIMON Wellington Branch Mark Reginald DUNLOP Hannah NORTHOVER

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 19 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

OVERSEAS Serious threat to rule of law The announcement from China’s Ministry of Justice that the country’s lawyers must swear allegiance to the Communist Party is a “serious threat to the rule of law,” according to the co-chair of the International Bar Association Human Rights Institute, Sternford Moyo. “This imposed obligation is lacking in legal basis,” Mr Moyo says. “It effectively constitutes an infringement of lawyers’ independence and is incongruous with the tenets of the United Nation’s Basic Principles on the Role of Lawyers, which states that governments should ensure that lawyers are able to perform their professional functions without improper interference. “Upholding the administration of justice and representing a client’s best interests are the first duties of lawyers worldwide and China’s lawyers should not be an exception,” Mr Moyo says. In recent years in China there have been a high number of incidents of harassment, arrests and detention of lawyers, particularly human rights lawyers, who have undertaken cases defending government critics or dissidents. Information on the whereabouts or conditions of many of these human rights lawyers is not available. They have “disappeared”. “The independence of lawyers is a crucial element of a fair and impartial justice system and a democratic society. Politically sensitive cases should be conducted without bias and China’s authorities should halt secret detentions,” Mr Moyo says. LT

New legal publication The Law Council of Australia released the inaugural edition of the Law Council of Australia publication Law Council Review on 26 March. The new quarterly magazine replaces the Law Council’s monthly publication @theLCA. Issue one of the Law Council Review is on the Law Council of Australia website (www.lawcouncil.asn.au). People interested in the Law Council’s activities can request this publication directly, by emailing review@lawcouncil.asn.au, with “Subscribe” in the subject line. LT

Secret trials defended The United Kingdom’s Justice Secretary Kenneth Clarke has defended plans to extend secret trials across a range of proceedings in the civil courts, reports The Gazette. Mr Clarke argues that a “unique and unprecedented” terrorist threat means that evidence affecting national security can be safely disclosed only behind closed doors. A measure in the Queen’s speech on 9 May is expected to propose extending closed trials beyond terrorism to include civil cases involving inquests, prisons, the police and organised crime.

Mr Clarke said “closed material procedures” would allow ministers to defend themselves against damages claims by disclosing sensitive evidence without endangering the national interest or exposing vulnerable sources. Critics of the plans argue that closed trials lack transparency, are unfair and serve to build a body of secret case law to which only the government and a few others have access. LT

ICC’s symbolic achievement The International Bar Association (IBA) has welcomed the verdict in the case of the first suspect to be tried before the International Criminal Court (ICC), Thomas Lubanga Dyilo. Calling the judgment a symbolic achievement for the ICC, the IBA says that though hampered by several procedural challenges, the Lubanga case attests to the integrity of ICC proceedings and has made a significant contribution to international justice. On 14 March, judges of ICC Trial Chamber I concluded that Mr Lubanga was guilty of conscripting, enlisting and using child soldiers younger than 15 years of age in hostilities in the Democratic Republic of Congo (DRC) during 2002 and 2003. LT

New IBA Asia office The IBA opened of its Asia office in Seoul, South Korea, on 21 March with a ceremony hosted by the IBA’s President, Mr Akira Kawamura, and Executive Director, Dr Mark Ellis. The Director of the IBA Asia office is Ms Juni Son. The office is temporarily based in the Korea Press Centre in Seoul. It will move to new permanent accommodation in the Seoul Global Centre Building in 2013. LT

New power to suspend judges Papua New Guinea’s government last month rushed through legislation giving its parliament new powers to suspend judges. The Judicial Conduct Bill 2012, giving the legislature the power to suspend judges if they fail to meet a set of nine rules governing their conduct, was passed less than a day after it was introduced. The new legislation is retrospective to 1 November last year. The law has come during an ongoing dispute between the government of Peter O’Neill and the Chief Justice, Sir Salamo Injia. Sir Salamo has been presiding over key cases on the constitutionality of the government, which has tried and failed to suspend Sir Salamo a number of times. LT

LAWTALK 793 / 13 APRIL 2012

S40 PUBLIC WORKS ACT MARGARET SMITH CUTTLE, HENRY WILLIAMS AND NEIL SHAW

The new-look legislation website.

Facelift for legislation website By the time this issue of LawTalk is being read, the chances are that the refreshed New Zealand Legislation website is up and running. When this issue was being prepared for print, the projected date for the new www.legislation.govt.nz site going live was 12 April. Implementation of the refreshed website began on 5 April and was expected to take around a week. Changes include: •

a new look with easier access to searching;

•

tab-based navigation for website functions and for viewing legislation;

•

auto-complete (a drop-down list of suggestions) on quick search; and

•

results from searching and browsing give more information that is easier to follow.

Saved bookmarks and website links to legislation will work for the refreshed website just as they did on the old website. And the refreshed website also gives access to a further type of legislation: Deemed Regulations, included as a way of making them more accessible to the public. (See “What are Deemed Regulations?”). Links to Deemed Regulations will be added gradually in the weeks following implementation.

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LAWTALK 793 / 13 APRIL 2012

09:02

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WILLS

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Would any lawyer who currently acts for the above-named or is holding a will for the abovenamed persons who owned land at Forbury, Dunedin, please contact Chris Cochrane, ph 03 363 5068, Darroch Ltd, PO Box 142, Christchurch 8140. Margaret Cuttle died on 21 May 1949. She owned land in Forbury in 1923. It is believed that Neil Shaw was from Melbourne, Australia, at the time he owned land in Dunedin in 1883. Henry Williams owned land in Dunedin in 1939. Information is sought for the purposes of Section 40 of the Public Works Act 1981.

EDWARD WILLIAM LAUDER

Mark Byrd

Would any lawyer holding a will for the above-named, AKA Edward William Kuri, late of Whangaparaoa, operations manager, who died on 22 February 2012, please contact Deanne Taylor, North Harbour Law, DX BP60001 or PO Box 104, Orewa 0946, ph 09 427 0550, fax 09 426 3426 or email deanne@nhlaw.co.nz.

Would any lawyer holding a will for the above-named, late of St. Nicholas Rest Home, 7 Kirkwood Avenue, Ilam, Christchurch, formerly of 21 Gothic Place, Christchurch, a professor of psychology, who died on 24 January 2012, please contact Diana LeBlanc, 5700 Arlington Avenue, Riverdale, New York, USA, ph (917) 455 6459, fax (212) 336 8001 or email dleblanc@ arelaw.com.

DOCUMENT SEARCH VICTOR CLAUDE BUTLER DECEASED Would any lawyer either holding a copy of, or having any knowledge of, the whereabouts of a trust deed for an inter vivos trust settled by the above-named deceased who died on 1 February 1971, please contact Hugh Thompson of Anthony Harper Lawyers, PO Box 2646, Auckland 1140 or telephone 09 920 6470 or email hugh.thompson@ah.co.nz.

John Murray Hendry Would any lawyer holding a will for the above-named, retired, born 7 May 1924 in New Zealand, resident in Auckland until emigrated to Sydney, Australia around 1980’s or 1990’s, late of Glenmore Park, Penrith, Sydney, NSW, Australia, who died on 23 January 2012. Reply to confidential advertiser no 02/12, c/o LawTalk, PO Box 5041, Lambton Quay, Wellington 6145, or email advertising. lawtalk@lawsociety.org.nz.

WILLS JOAN TAYLOR

Tamati Masiasomua

Would any lawyer holding a will for the above-named, late of 1/127 Grace Road, Tauranga, who died on 9 March 2012, please contact Les Divers, Churton Hart & Divers, Solicitors, DX EP82005, PO Box 82040, Highland Park, Auckland 2143, ph 09 533 9476, fax 09 533 9482.

Would any lawyer holding a will for the above-named, late of Auckland, widower, who died on 25 January 2012, please contact Julian Airey of lnder Lynch Lawyers, DX EP 75527, PO Box 76745, Manukau 2241, phone 09 266 6185, or email j.airey@inderlynch.co.nz.

Arona HONE PIHAMA

Glenn James Mitchell

Would any lawyer holding a will for the above-named, late of 10 Baberton Street, Tokoroa, paper mill operator, who died at Putaruru on 11 March 2012, please contact Hassall, Gordon, O’Connor & Newton, PO Box 76, Tokoroa 3444, ph 07 886 6279, fax 07 886 8231 or email tok.law@ clear.net.nz.

Would any lawyer holding a will for the above-named, late of 13 Nalder Place, Linwood, Christchurch, who died between 18 and 20 January 2012, please contact Leanne Pryde of Gallaway Cook Allan, PO Box 143, Dunedin 9054, ph 03 477 7312, fax 03 477 5564 or email leanne.pryde@gcalegal.co.nz.

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www.cobbetts.com Cobbetts LLP is a limited liability partnership

FAMILY LAWYER Intermediate to Senior Level – TAURANGA Ronayne Hollister-Jones Lellman is a 4 Partner specialist litigation practice based in Tauranga and is a leading provider of litigation solutions in the Bay of Plenty. We are seeking a Family Lawyer with: • • • • •

At least 5+ years PQE Strong personal, communication and relationship skills Ability to work in a team Excellent legal writing and advocacy skills, with a particular emphasis on relationship property work High standards of client service

We offer a friendly and fun working environment with a diverse variety of family law work and opportunities. The suitable candidate will be able to develop professionally with the support of the Family Law Partner and team and enjoy all that living in the Bay of Plenty has to offer. Suitably qualified and interested applicants should apply in writing or email their CV by 27 April 2012 to: The Practice Manager Ronayne Hollister-Jones Lellman PO Box 13063, DX HP 40041 Tauranga 3141 Attention: Anne-Marie McCall e-mail: a.mccall@rhjl.co.nz

PARLIAMENTARY COUNSEL The Parliamentary Counsel Office invites applications from experienced lawyers for appointment as Parliamentary Counsel or Associate Parliamentary Counsel. Applicants must have post-qualifications experience in private practice or another legal environment. The Office is responsible for drafting Government Bills and Statutory Regulations affecting all facets of New Zealand society. The work requires a sound knowledge of the law, initiative, and the ability to analyse complex ideas and policies and express them in language that can be easily understood and applied. It also involves discussions with, and the provision of advice to, Government departments, Ministers of the Crown, Cabinet committees, and parliamentary select committees. Applicants will need the ability to:

Senior & Junior Criminal Lawyers The Public Defence Service represents legally aided clients in a full range of criminal cases and is a commited to providing independent high quality, timely, legal advice including providing professional leadership of the duty lawyer service.

Junior Criminal Lawyers – Hawkes Bay With the opening of the Public Defence Service office in the Hawke’s Bay, opportunities exist for junior lawyers to join an enthusiastic new team. In this role, you will be able to advance your legal career in a busy, challenging and supportive environment. Our commitment to training and development includes ongoing mentoring, training, interesting work, a strong collegial environment, and a competitive salary. Reporting to the Deputy Public Defender, Hawke’s Bay, you will have completed duty solicitor training and have Category 1 approval or the ability to gain this. Applications close on 24 April 2012

• communicate effectively, both in writing and orally • apply legal knowledge in a practical and effective manner • work constructively with a wide range of people • contribute to a team and work independently • work under pressure.

Criminal Lawyers – Auckland Region

Visit www.pco.parliament.govt.nz/current-vacancies for application requirements and a job description. For more information contact Fiona Leonard, Acting Deputy Chief Parliamentary Counsel, on 04 817 9390.

The Public Defence Service also offers excellent leadership, mentoring and management training for senior lawyers. If you are eligible for a New Zealand practising certificate and hold, or are capable of obtaining, a category 3 listing or above, we would love to hear from you.

The closing date for applications is 9 am Thursday 26 April 2012.

Applications close on 30 April 2012

There are two permanent roles available in the Auckland region for experienced, dedicated, seniors in Manukau, and Waitakere. Our senior lawyers work predominantly in the indictable jurisdiction on category 3 and 4 matters and play a significant role mentoring young criminal lawyers in the profession.

For more information, please email joy.mcdonald@justice.govt.nz or telephone her on (04) 978 7052.

LAWTALK 793 / 13 APRIL 2012

SITUATIONS VACANT

Time to step up? LeeSalmonLong is a thriving specialist commerical litigation firm looking for talented litigation lawyers with one to five years’ post-qualification experience to join our respected firm. •

We challenge our lawyers to develop and push their legal experience to the limits in one of the best and most supportive working environments in the law.

•

Our lawyers regularly appear in the District, High and appeal courts, in arbitrations, specialist tribunals and mediations.

•

As well as working with partners of the firm, our lawyers also work directly with external senior counsel.

•

Our lawyers earn top of the market salaries, work on a range of files and enjoy high levels of client contact and file responsibility.

Co rpo rate So lic ito r

Dunedin, permanent

• No two days are the same here ! • Varied work in an autonomous environm

ent No two days are the same in this role where you will contribute to issues including medico-legal, policy development, legislative complian ce, sentinel events, complaints, through to contracts and employment matters. A sole position, we require an agile senior lawyer with a strong working knowledge of commercial and public health law and no less than 6 years post admission experience within a large organisa tion, preferably with some health exposure.

If you have an impressive academic record and CV and want to take your litigation career to the next level, we welcome your application.

Applications close 22nd April 2012.

Please email it in confidence to: recruitment@lsl.co.nz, or mail to Recruitment, LeeSalmonLong, PO Box 2026, Shortland Street, Auckland 1140

Please apply online or for more details contact Nigel Copson nigel.copson@southerndhb.govt.nz

Intermediate Solicitors in Demand! 2x Corporate Solicitor, 2-4 yrs pqe & 5-8 yrs pqe – Seeking experienced solicitors who value collegiality and have a true passion for law. Top tier M&A and JV work, domestic and international clients. MH29544

In-house Solicitor, Wellington If securities and derivatives are your thing, this is a great opportunity to move in-house.

Resource Management, 2-4 yrs pqe – Market leading environmental law practice, great exposure to RM, public, licensing and environmental law. MH27274

Commercial solicitor, 2-3yrs pqe – Work under a great mentor in a stable practice URL that actively encourages a work/life balance. __________ With: _______________________________ Date:_______________________________ tested: Previous commercial and/or property experience required. RL29483

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2012

Corporate Advisory solicitor, 5-6yr pqe – Enjoy the benefits of leading your own transactions as well as working with the team as a whole. Medium sized firm with a top tier reputation. RL29316

60 days 30 days

Job posting

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run date Wellington

Ph: +64 4 499 6161 13 April PO Box 11003

$151.00

checked: The work is interesting and varied and you will have the opportunity to gain experience in and work across different areas of the business. Yourevisions: will need to have highly developed analytical skills and excellent communication skills. You will have 1 2 oral 3 and 4 written 5 a professional approach and be experienced in working with $0 $0 $25 $50 $75 specialists from other business areas.

PLEASE NOTE:This is an excellent opportunity to work in-house for a wellknown organisation so please get in touch to find out more that we have prepared this aboutbased this role and other similar positions. advertisement proof on our understanding of the instructions For further received. In approving the information in strict confidence please contact Traynorresponsibility or Clare Savali on 04 471 1423 or email advertisement, Ben it is client’s admin@nicherecruitment.co.nz to check the accuracy of both the advertisement, the media and the position nominated. +64 4 471 1423 Cancellation ofPhone: adverts booked with Email: admin@nicherecruitment.co.nz media will incur a media cancellation www.nicherecruitment.co.nz fee of $50. www.momentum.co.nz

To apply, please send your CV to aucklandjobs@momentum.co.nz quoting the reference number. For further information position sort cost (excl gst) in strict confidence, please contact Meryn Hemmingsen or Rebecca Vacancies 1/4 page $610.00 Laney onposting 09 306 5500. Job $190.00

Auckland Ph: +64 9 306 5500 Full colour PO Box 105732

This well regarded organisation is looking for someone with at least three years of commercial law experience in either private practice or in-house. If you have had commercial transactional experience and have a genuine interest in capital markets, this is a fantastic opportunity to join a cohesive in-house Closing dateteam.

your contact:

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