LAWTALK
22 JUNE 2012 / 798
FOR THE NZ LEGAL PROFESSION
NEW ZEALAND LAW SOCIETY NZLS EST 1869
SPORTS LAW
CYBER LAW
ELDER LAW
ANIMAL LAW
DEVELOPING AREAS OF LAW - PAGE 4
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INSIDE
THE MAGAZINE
DEVELOPING AREAS OF LAW
“Language and people are my two loves and law is an interest of language.”
“There is an inextricable link between animal cruelty and human violence, and because of that we must legislate with a firm hand to prevent both, equally.” p. 5
p. 12
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07
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Sports law a very complex area By FRANK NIELL
Law and poetry tie the knot
In some ways, sports law is not new...
Zen under fire By RACHAEL BRECKON
By HANNAH GRANT
Poetry wore white and law donned a suit when they intertwined in literary matrimony...
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Armed with a master’s degree in law from Waikato University and a passion for Human Rights, Marianne Elliot embarked on a journey...
19 Home grown and operated e-discovery system
The economy of legislation By RACHAEL BRECKON
Minister of Commerce Craig Foss talks to LawTalk about the legal profession’s role in international trade...
PRO FESSIO NAL I N D EM N IT Y
17 In this issue we begin a bi-monthly column on matters connected to professional indemnity insurance...
LawFlow is an online e-discovery system which allows users to upload documents to New Zealand servers, which can then be accessed by lawyers... Applications open for major research award Legal experts are being encouraged to apply for New Zealand’s premier legal study award before the 1 September closing date...
LawTalks wanted
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Cyberlaw issues developing too fast for legislation
One of the top ten professional disciplines
Ageing society needs specialist lawyers
By HANNAH GRANT
By FRANK NIELL
If you can see through the “scandalous” smokescreen of fast cars, bling, mansions and rap...
Animal law will be one of the top 10 professional specialties for the 20102020 period...
By HANNAH GRANT
The Department of Statistics throws the “you’re only as old as you feel” notion out the window...
REGULARS
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People in the law
From the Courts
Section News
Bookshelf
CLE
Branch News
Lawyers Complaints Service
SEE PG 19
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 798 / 22 JUNE 2012
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FROM THE LAW SOCIET Y JOHN UNSWORTH
Is the practice of law in Wanganui (or Whanganui) comparable to the rest of provincial New Zealand? If yes, I’m in some position to talk about legal practice outside the metropolitan areas. Tales from our local District Court coal-face paint the picture of a profession facing tough times. There is no doubt that the fixed fees legal aid scheme and process changes are causing pain and litigators are re-evaluating their specialities, with many looking to varying their practice of law. Logic would suggest that there is more private paying corporate/ commercial type litigation happening in the larger cities. The converse is that provincial litigators, or the bulk of them, rely predominantly on the smaller, more common cases for their living. Fortunately lawyers in the provinces have often tended to be litigation generalists due to smaller client bases. As a result they are more easily able to adapt to these changes by moving into other areas of work, employment law being a popular example. However, it is important that any lawyer intending to revisit an area of law they haven’t recently practised undertakes appropriate continuing professional development via seminars and reading
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modern legal texts. This will ensure they have the adequate skills to properly represent their clients. The uncertain and unpredictable property market has impacted on the workloads and confidence of provincial property lawyers. Continuing slower economic times and little business development has meant commercial lawyers have also been quieter. Whilst recovery seems imminent it hasn’t shown any true substance yet. Unfortunately, the lack of growth means that as small business owners provincial law firms have also been cautious about their own spending. This has meant new graduate appointments are rare, and there has been a clamp-down on expansion and marketing spend. Attracting lawyers with experience to the provinces is still a challenge. Junior to intermediate lawyers can gain wide experience under the guidance of some excellent lawyers. This experience affords them a head start in their legal career with a range of options opened to them. Despite the uncertainty and the need for a lateral approach to providing legal service, morale is good in the provinces. Established practitioners still have sufficient activity to continue to practise and warrant getting out of bed in the morning. I am sure the resilience of provincial lawyers will mean that they remain positive and turn their minds to roaring fires and spectacular ski fields over the winter months. John Unsworth New Zealand Law Society Vice-President
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 … Dispute resolution The Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) Dispute Resolution Conference 2012 will be held in Wellington from 2-4 August. Entitled Global to Local, the conference will be presented in association with Victoria University’s law faculty and with support from the New Zealand Law Foundation. The programme includes concurrent streams for determinative and consensual processes, special topics, mock mediation, mock arbitration and presenters from the Advisory Council on the United Nations Convention on the International Sale of Goods. Keynote speakers include AttorneyGeneral Chris Finlayson and Sir Geoffrey Palmer SC. See www.aminz.org.nz/ category?Action=View&Category_ id=590.
Sports law conference The 2012 Australia and New Zealand Sports Law Association (ANZSLA) Conference will be held in Perth from 17-19 October. With the theme Boom Time: exploring the future of law in sport, the conference will include sessions on: • lessons learned from London 2012; • dispute resolution; • employment issues and workplace relations; • expanding sporting markets; • new sports, new sports products and new franchises; • managing crises; and
Justice for young people
• free agency and athlete management.
Youth justice will feature at the next major conference of the Australasian Institute of Judicial Administration (AIJA).
See www.anzsla.com.au/ content/22nd-anzslaconference-2012.
Doing Justice for Young People – Issues and Challenges for Judicial Administration in Australia and New Zealand is the title of the conference, which will be held in Brisbane from 2325 August. The event will focus on a wide range of issues, including restorative justice, family violence, shared parental responsibility in the Family Court, social media and child sex offenders, and will have a special emphasis on indigenous youth and on the effects of drugs and alcohol on young people. Judge Betty Hora, a former Judge of the California Superior Court, will deliver a keynote address.
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.
Registration is now open and early bird registration is available until 29 June. The programme is at www.aija.org. au/Youth%20Justice%202012/ Programme.pdf.
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
Environmental justice The 11th Global Conference on Environmental Justice and Global Citizenship will be held from 3-5 July at Mansfield College Oxford. This conference will explore realisations of communities seeking environmental justice, relations between these communities and the institutions and practices through which environmental justice is sought and attained. See www.inter-disciplinary. net/critical-issues/ethos/ environmental-justice-and-globalcitizenship. LT
• 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 798 / 22 JUNE 2012
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Developing areas of law In this issue of LawTalk, we feature four developing areas of law. When we were researching the topic, we came across around eight new and developing areas of practice. For this issue, we chose four of them: cyberlaw (or IT law), animal law, sports law and elder law. This feature, then, will be the first in a series that we will continue in at least one future issue of LawTalk this year. If anyone has an area of new or developing law that they would like to see included, please email frank.neill@lawsociety.org.nz or you can ring Frank at (04) 463 2982.
Cyberlaw issues developing too fast for legislation By Hannah Grant If you can see through the “scandalous” smokescreen of fast cars, bling, mansions and rap songs, you will notice that Kim Dotcom’s Megaupload saga has thrown many cyberlaw issues into the glare of the mainstream. Whether it is jurisdictional copyright complexities, public policy, intellectual property (IP), free speech, privacy, or security issues, cyberlaw or internet law is a rapidly evolving field of practice for lawyers and businesses alike. AJ Park partner Matt Adams says a big cyberlaw issue to grapple with is that individuals and companies are now trading without borders. “Traditionally when you were manufacturing a product and shipping it, you knew where your customers were but nowadays your market is global. Something you are selling might
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be illegal or immoral in some of the target markets that you didn’t know you had. “It’s hard for everyone to keep on top of cyberlaw developments in different jurisdictions. Stalwart internet companies are well aware of these laws, but bricks and mortar companies who are getting into internet sales as part of their existing business model are finding that things aren’t quite the same as they used to be,” he says. Policy Lead at InternetNZ, Susan Chalmers, says that cyberlaw is a field that grows as the internet does. “It is a broad domain encapsulating a number of different areas including privacy, human rights, intellectual property, surveillance, media and criminal law to name a few.
“Like many areas of internet law, I think that we should be adaptive and flexible when it comes to developing regulatory frameworks for internetrelated rights and wrongs. Sometimes enshrining regulation within legislation may not be the best answer, as the process is relatively slow-going,” she says. Cyberlaw generally concerns the law and regulation of internet and internet-related communications and technologies, but as the cyber world develops at an unstoppable rate, legislation is struggling to keep up. Legislation is often ineffective in the Information Technology (IT) industry, Mr Adams says. “Partly prompted by the Megaupload situation, the local IP industry has put together a code of conduct for cloud
DE VELOPING ARE AS OF L AW storage. Industry-led guidelines and regulation, rather than legislation, is what we will see more of. Legislation is always left behind, especially in the IT area. Business models, practices and behaviours are evolving so quickly that legislation is often out of date,” he says. Academia has also contributed to cyberlaw in terms of research and public outreach programmes. Since 2003, InternetNZ and Wellington’s Victoria University have run the InternetNZ Research Fellowship in Cyberlaw. Over this period, four Cyberlaw Fellows have undertaken substantial research to produce papers relating to a range of internet issues, and contributed significantly to a dialogue between the law school, the internet community and legal and policy communities. Former Cyberlaw Fellow and lawyer, Jonathan Penney (currently a PhD student at the Oxford Internet Institute, at Oxford University, and a Research Fellow at the Citizen Lab / Canada Centre for Global Security Studies) says such an opportunity was hard to turn down given the research fellowship focused exclusively on internet and cyberlaw and that this is quite unique.
“The fellowship was a fantastic opportunity to contribute not only to the law school and scholarship, but also broader public discussion on cyberlaw issues in New Zealand.”
technology sector, by avoiding some of the problems and pitfalls associated with software patents in other jurisdictions, like innovation stifling litigation threats from patent trolls.
Cyberlaw is a constantly evolving field, both in New Zealand as well as around the world. Mr Penney explains that some of New Zealand’s laws are more balanced than similar laws in the United States. They are far from perfect.
“New Zealand, like most countries, still has plenty of work to do; but so long as the Government decides cyberlaw issues based on the public interest, and not those of narrow stakeholders, it will find a balanced and made-in-New Zealand way to move forward,” says Mr Penney.
“For example, the legislation wisely requires copyright holders to apply to an expert Copyright Tribunal for damages and provides that only a court can impose certain remedies (like account suspension if the Government decides to implement it after 2013). However, the legislation is complex, and given how recent the copyright reforms were implemented, we do not yet know their full impact or costs on internet users, internet service providers, and copyright holders. “On patent law, New Zealand’s decision to exclude software from patent protection was controversial, given that software patents have been soundly entrenched in many other legal jurisdictions. However, it may prove helpful to the country’s information/
Although the Cyberlaw Fellowship programme has now ended, InternetNZ and the Victoria University’s New Zealand Centre of International Economic Law (NZCIEL) have signed a new partnership agreement. NZCIEL will be funded to deliver conferences and publications targeted at all people interested in how existing laws are adapted and new laws are made to address internet issues. At the beginning of July, InternetNZ will be announcing a new law and policy funding round. Ms Chalmers says that $100,000 will be available for research projects based on internetrelated legal and policy issues. LT
One of the top ten professional disciplines By FRANK NEILL Animal law will be one of the top 10 professional specialties for the 20102020 period, a recent study showed. Two areas of law were among the 10 professions identified, says animal law specialist Dr Ian Robertson. The other was IT law, or cyberlaw. Animal law is “definitely going to be one of the leading professions in the next decade. And the role of New Zealand lawyers will be absolutely pivotal,” Dr Robertson says. In part, that is because more than half of New Zealand’s GDP still comes from the sale of its primary agricultural products. As former Agriculture Minister Jim Anderton said, New Zealand, more than any other developed nation, rides on the back of its animals. So what, then, is animal law?
“I see the penny drop with lawyers when I say: ‘Think of me as a specialist property lawyer’,” Dr Robertson says. “‘I deal with a special kind of legal property – animals. What distinguishes animals from other property is the fact that they are animate, and can experience pain and distress. And animals are special because they are animate. Because animals are special, so the law around them is special.’” The three elements of animal law are: •
it involves an animal;
•
it recognises and acknowledges the unique nature of the property in that they are animate; and
•
it affects the relationship between humans and animals.
Closer examination of these elements illustrates the breadth of animal law.
The “younger cousin of environmental law”, it deals with a wide variety of stakeholders, and stakeholder interests that interact with a range of traditionally well recognised legal specialties including, for example, property law and contract law; in addition to matters of biosecurity, live exports, genetic modification, food safety and international trade. The law is “very good at protecting property” when that property is inanimate. But when the property is animate, the law is still developing, albeit quite rapidly. For example, there are no laws against taking an axe to a chair unless, of course, you don’t own the chair. But the law does recognise that an animal can suffer unnecessary and unreasonable pain and distress.
LAWTALK 798 / 22 JUNE 2012
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DE VELOPING ARE AS OF L AW Animals’ ability to suffer is addressed in the concept of animal welfare contained in the Animal Welfare Act 1999, which puts legal responsibilities on people in order to ensure that animals do not suffer “unnecessary or unreasonable pain or distress”. New Zealand Courts exemplify the progression made in this area. A decade ago, it wasn’t unusual for people to take the attitude that “it’s just an animal”, and it was almost unheard of that anyone would be sent to jail for animal cruelty. In contrast, the judiciary today are well informed regarding the law, and the shift in public expectations regarding animal welfare. Sentencing has included substantial fines and imprisonment. In three instances recently, District Courts have ordered reparation for emotional harm following cruelty to companion animals. The cases were “pretty gruesome”, and the second and third cases referred to the previous court decisions. “The decisions establish a precedent for development of this as a potential head of claim, and supports the views of many lawyers that animals cannot always be valued simply by reference to their ‘market value’,” Dr Robertson says. An initiative aimed at bringing justice when people are cruel to animals was established in 2009. Prosecutor Anita Killeen established a bono panel of prosecutors for SPCA Auckland. The panel comprises senior lawyers who have volunteered to prosecute animal abuse cases. “The seriousness with which the SPCA views animal cruelty, connected as it is to human violence, is clearly illustrated by the advent of the pro-bono prosecution panel which harnesses the finest legal minds available to provide some surety that offenders will be dealt to appropriately and effectively,” Ms Killeen says. Auckland SPCA is very grateful for the
work of the panel, its executive director Bob Kerridge says. He is also looking at what will be a major step in animal law, consideration of improvements to the Animal Welfare Act (1999), which is taking place at the moment. “As we consider improvements to the Animal Welfare Act (1999) we are now very much more enlightened than we were when it was conceived,” Mr Kerridge says.
“ ”
Violence is violence no matter what the species. Dr Ian Robertson “We now know, where before we only suspected, that there is an inextricable link between animal cruelty and human violence, and because of that we must legislate with a firm hand to prevent both, equally.” Like Mr Kerridge and Ms Killeen, Dr Robertson also speaks about the link between violence to animals and violence towards other people. A recent report released in Australia addressed the link between domestic violence and animal abuse. It showed that there was a 20% correlation between the two. Given that the police attended a domestic violence incident every nine minutes between 2010 and 2011, and the correlation between family violence and animal abuse, initiatives to protect one have tangible benefits in protecting both humans and animals.That means violence towards animals is an area to be addressed. “Violence is violence no matter what the species,” he says. This gives rise to a number of issues of practical importance for lawyers.
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Prosecutors can assist by being aware that returning an animal to its owner is akin to returning a child to its abuser. In family law, there would be nothing to stop New Zealand lawyers seeking to have animals included in protection orders. That has already happened in overseas jurisdictions. Recent research in New Zealand has demonstrated that, similar to overseas findings, many women will stay in an abusive relationship in order to protect their animals. The New Zealand study, conducted by the RSPCA and Women’s Refuge, found that the average length of time women stayed for this reason was two years, with the longest being 22 years. Animal cruelty is only one aspect of animal law, however. Another big area is animal welfare. That is true not only for companion animals, but also for larger animals. In fact, when it comes to our farm animals, there are a variety of issues, from international trade to meat law, from drugs to genetic modification, from contractual issue to uses, from live exports to welfare. “In the larger animal space, for example, we are not in a ‘one man with 100 cows’ situation any more. We are moving to a place of corporate farming and not only corporates in New Zealand but international parties. “The question is becoming: ‘who’s looking after our animals?’ And that is an important question for New Zealand because we cannot let the ball drop in terms of animal welfare,” he says. And this leads to some of the “deeper drivers” why animal law is coming to the fore. It is reflecting the increase in technology and the global village. “It is law and it is science and it is ethics,” Dr Robertson says. As both a lawyer and a veterinarian, this gives him an important insight into the interrelationship between animal law, science and ethics. “It has got to be authoritative and it has got to be practical. It has to keep up with the global makers, shakers and users of animal law.” Legal leadership will be important in this area, as will the contributions of veterinarians and journalists, because the public mind-set is often shaped by what is in the media. It will call on lawyers influencing policy makers, on lawyers who become politicians and on lawyers who translate the science into law. LT
DE VELOPING ARE AS OF L AW
Sports law a very complex area By FRANK NEILL In some ways, sports law is not new. In fact, when the New Zealand Law Society last asked lawyers which areas of law they believed were new or developing areas, sports law led the list. That was in the mid-1990s. “Lawyers have been involved in sport for a number of years now,” says David Clark, whose main sports law focus is in a mediation role. Recently becoming the first New Zealander to be appointed as a mediator for the International Court of Arbitration for Sport, Mr Clark has now stepped away from representing groups and individuals. “It certainly is a developing area,” he says. “And as sport becomes more professional … lawyers will become more involved in that process.” Professionalism in sport has certainly been a major driver of sports law. “The US is a really good example of how developed sports law is. Professional sport has been around for a while and the dollars involved are massive,” Mr Clark says. Another big driver of sports law has been Olympic Games administration. In 1981, the International Olympic Committee established the Court of Arbitration for Sport, set up with the objective of becoming the pre-eminent dispute resolution court international for sport. “It now deals with commercial issues, drug issues, selection issues – in fact, there isn’t anything that it can’t deal with. Its jurisdiction is by consent,” says Wellington barrister Tim Castle, who in 1991 was the first person to be appointed to the Court from New Zealand, Australia and Oceania. Most international sporting organisations have joined. Rugby and cricket, which run their own dispute resolution processes internationally, are among those that have not yet joined. The “leading edge in sports law” could be said to have emerged in the leadup to the 1984 Los Angeles Olympic Games.
In the late 1970s and early 1980s, the International Olympic Committee was virtually penniless.
•
commercial rights attached to sports (including broadcasting rights);
Peter Ueberroth took office as organiser of the 1984 Los Angeles Games, and established a broadcasting rights commercial environment, recruiting major sponsors such as MacDonalds, Coca Cola and Panasonic, who remain as major sponsors of the Olympics today.
•
sports constitutional protocols and management of athletes;
•
intellectual property;
•
dispute resolution;
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athlete misconduct; and
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employment law.”
Under Mr Ueberroth’s leadership and management, these first privately financed Olympic Games resulted in a surplus of nearly $250 million.
Just one area where sport law does differ from other areas of practice is around selection, Mr Clark notes.
“That was probably the start of what was the identification of very complex legal and commercial dynamics around Olympic sport. It gave rise to a wide range of legal issues” Mr Castle says. “So far as the practice of sports law as it is commonly referred to in New Zealand is concerned, its commencement is most frequently described as having occurred with the advent of professionalism in rugby.” Sports law is “very complex”, Mr Castle says. “There is now an extensive range of contractual and commercial legal issues in sport including: •
media law;
A sportsperson may not, for example, be selected for an Olympic team even though he or she satisfied a number of criteria. They then seek to challenge not having been selected. “That’s definitely new. That sort of thing didn’t exist a few years ago.” Mr Clark also points to an example where one sport is about to have two teams selected to represent New Zealand at the Olympic Games. “There will be a lot of work involved in that so that these people are catered for in a legal sense.” When it comes to sports law, there are “major developments at the moment,” he says. LT
LAWTALK 798 / 22 JUNE 2012
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Ageing society needs specialist lawyers By Hannah Grant The Department of Statistics throws the “you’re only as old as you feel” notion out the window when attributing the term “elderly” to those over the age of 65. The word elderly conjures stereotypical withering images but as a statistic, New Zealand’s over 65s are doing the opposite and growing at a faster rate than ever before. The baby boom generation, who are healthier, wealthier and better educated than previous generations, are also now entering this age group, resulting in a major shift in the population structure. According to projected scenarios developed by Statistics New Zealand, in a mere decade New Zealand’s elderly population will exceed one million and will outnumber those aged under 15. Today, lawyers are not only dealing with an increased number of elderly clients, but also with complexities that were not evident a generation ago.
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It is not surprising, then, that elder law has now become an area of speciality. Whether it’s wills, trusts, estate planning, enduring powers of attorney, or retirement village issues, elder law involves issues that have a significantly distinct nature. Greg Kelly Law Ltd, a Wellington law firm, is dedicated to trust and elder law. Partner and founder Greg Kelly says elder law has become a lot more specialised than it was in the past. “In years gone by, elder law was usually lumped under property law but it’s come to the point where each individual area is becoming increasingly complicated, driving the need for increased specialisation. “There is a lot of work in this area. I think it is very difficult to run a general practice these days and effectively keep up with all the developments,” he says. Mr Kelly says the main developments in
the field of elder law are that people are living longer, families are widespread and there are more blended families, making elder advice far more complex than it used to be. The use of trusts to hold assets is also increasingly common. “People often re-marry or re-partner following death or separation. They then have to balance their duties to the children of the first marriage and the spouse/children of the second marriage. “This was not the case 20 to 30 years ago when you gave everything to the spouse and/or children. Now it’s far more complicated with different family make ups and more challenges to wills and trusts,” he says. Because of these changes to family dynamics, Mr Kelly says that setting up trusts, drafting wills and advising on enduring powers of attorney have become difficult.
DE VELOPING ARE AS OF L AW Gillespie Young Watson Partner Lesley Grant explains that their “elder law” specialist division was set up over a year ago. “We saw a need for people around retirement age to look at their asset planning strategies and make sure they have the things they need in place for their retirement. We go through a checklist with our clients. We aim to give comprehensive holistic advice about the whole picture.” Because of the aging population, people looking to their retirement years now have a greater period of time to plan for. Mrs Grant says that these days people are looking at an entirely different future from earlier generations and they have to make sure they have structures in place to facilitate that. “It’s all about asset protection really. It’s safeguarding assets for your own benefit and the benefit of your children in ways that you choose without having the law imposing unforeseen consequences,” she says. As an acknowledged and separate
field of specialisation, elder law is relatively new in New Zealand. In the United States, on the other hand, the momentum of the development of elder law has been evident since 1978 with the formation of a “Commission to Address Legal Problems of the Elderly” by the American Bar Association. In 1986 the United Kingdom followed suit with the release of a report by Age Concern titled The Law and Vulnerable Elderly People, stating “we need to ask ourselves whether we have the legal framework within which a humanitarian set of social goals can be realised, or if the increasing numbers of very old people present a new situation which our legal and social mechanisms were not constructed to serve.” In Australia, the University of Western Sydney has paved the way in Australasia with its creation of the Centre for Elder Law which aims to help advance the legal interests of the community with research, training and discussion. New Zealand has adopted elder law as a bona fide subject at a slower rate in our education institutions. In fact,
What the profession predicted Research carried out for the New Zealand Law Society in the mid1990s asked lawyers which areas of law they believed were new or developing areas. Top of the list in 1996 was sports law, with 77% seeing it as a developing area for the profession in general. Only 14% saw sports law as a developing area for their own practice. This contrasted with the next-most preferred area, alternative dispute resolution and
mediation (ADR), where 73% saw this as a developing area for the profession in general, and 34% saw it as a developing area for their own practice. The research, Poll of the Profession, provided lawyers with a list of topics and asked them to show which they believed were developing or potential new areas of law. The thirdmost popular choice, “intellectual technology” is perhaps a combination of IT and intellectual property.
Wellington’s Victoria University is the only university that now offers papers in elder law at Honours and Masters level. The course coordinator, Professor Bill Atkin, says that the elder law papers at Victoria encompass students presenting their own original research on topics such as rest homes, retirement villages, adult guardianship, the “do not resuscitate” question, cryonics (being frozen in the hope that technology will advance so that when you are unfrozen it will be of benefit), homicidal heirs, elder abuse, role of grandparents, elder law from a gay perspective, advanced directives and reverse mortgages. “My main area is family law and many of the issues in elder law are direct spin-offs of family law. The topic will become increasingly important as society’s demographic structure changes. “There are various provisions in the law that target the older population and the distinct way in which the law affects older people has become a new area of specialisation,” he says. LT
Law Society research in 1996 and 2012 shows there has been relatively little change in the main areas of practice. In 1996, 58% of respondents spent some time practising company and commercial law, followed by domestic conveyancing (52%), commercial conveyancing (49%), estates (44%), family law (41%), civil litigation (38%) and employment law (38%). In March 2012, 49% of respondents spent some time practising company and commercial law, followed by property law (42%), civil litigation (36%), estates (36%), family law (30%) and criminal law (21%). LT
New areas of law as seen by lawyers in 1996: Top choices Area of law
For legal profession
For self
Sports law
77%
14%
Alternative dispute resolution and mediation
73%
34%
Intellectual technology (sic)
68%
11%
Employment law
61%
26%
Energy and resource law
58%
15%
Aged persons law
57%
28%
LAWTALK 798 / 22 JUNE 2012
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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.
Jones Fee has appointed Russell Stewart an associate. Russell, who joined the firm in September 2010, advises on policy coverage, conducting commercial litigation and providing advice and litigation strategies on a range of legal issues.
Ben Bateman, of the New Zealand Army, has been promoted to the rank of Major. Ben deployed to Afghanistan in 2010 as the legal advisor for the New Zealand Special Air Service. Ben is now the deputy chief legal advisor for the Commander of Joint Forces New Zealand.
DLA Phillips Fox has appointed Rob Enright a partner. A specialist infrastructure and resource management lawyer, Rob will head the resource management team in Auckland. Over nearly two decades of practice in resource management, litigation and Māori resource issues, Rob has provided counsel in some of the highest profile cases in the country. He continues to act for clients in the energy, oil, mining and natural hazards sector, consent and iwi authorities, as both prosecutor and defence counsel in environmental liability cases, and public law and judicial review issues. Michelle Taylor, of the Royal New Zealand Navy, has been promoted to the rank of Commander on her appointment as the deputy director, Defence Legal Services, New Zealand Defence Force, with responsibility for personnel law. Michelle was previously the assistant director legal services, based in Auckland, responsible for legal advice to all NZDF units north of Taupo.
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Jackson Russell recently appointed four lawyers. Katie Wright has returned after a period in London and joins the business law team. She advises on a wide range of matters, including commercial agreements, buying and selling businesses, franchising, corporate governance and business formation and structuring. Sarah Fitchett has joined the family law team and specialises in relationship property, parenting disputes and domestic violence
proceedings. Mina Al-Zubaidi is a solicitor in the commercial property team and Jessica Sussman is a solicitor in the dispute resolution and civil litigation team.
Chapman Tripp has appointed 21 new senior associates, across all practices and offices of the firm, and three special counsel. “Special counsel” is a new role at the firm, created for highly experienced, senior practitioners who excel in their chosen field. The three special counsel are Alan Lester, Nick Lough and Lyndsey Partridge. In finance, Wellington, Alan Lester’s practice covers all aspects of banking, finance and debt securities work. He specialises in bank financing; capital markets debt raising; swaps and derivatives; and bank regulation. Nick Lough (corporate & commercial, Wellington) focuses on mergers and acquisitions and other corporate transactions. He has a particular focus on business acquisitions and reorganisations; company, securities and securities markets laws; corporate governance; and complex contractual matters. Lyndsey Partridge (private client & trusts, Auckland) specialises in trusts (both private and charitable), succession and asset planning. She has particular experience in trust structuring, intergenerational change and personal property ownership for business families. “Senior associate” is now Chapman Tripp’s most senior pre-partnership designation. The new Auckland senior associates are: Jennifer Tunna and Tim Walker, finance; Rachel Dunne, Kelly McFadzien and Joshua Pringle, corporate & commercial; James McMillan and Marie Wisker, litigation & dispute resolution; Luke Hinchey and Teresa Weeks, environment, planning & resource management; Nick Francis and Alistair Law, property, real estate & construction; and Phillippa Wilkie, private client & trusts. The new Wellington senior associates are: Josh Blackmore, Chris Bougen and Tim
PEOPLE IN THE L AW Sherman, corporate & commercial; Nicholas Wood, litigation & dispute resolution; Paul Holth, property, real estate & construction; and Jess Rowe, tax. The new Christchurch senior associates are: Nicki Carter, Stephanie Muller and Tania Pearson, corporate & commercial. The firm’s principals also became known as senior associates from 1 June. Glaister Ennor has made three new appointments. Michelle Hill has joined the firm as a senior associate in its property team. Michelle is a commercial property specialist with particular experience in leasing. She also handles subdivisions, acquisitions, unit title matters and property development. Steve Shin joins Glaister Ennor’s litigation team. He has experience in civil and commercial litigation including contractual disputes, tort claims, property disputes, insolvency and debt recovery. Helé Coetzee has joined the firm’s commercial team. Helé deals with residential and commercial conveyancing and financing, and mortgage portfolio management, and acts for private property developer and lending clients.
PEOPLE Queen’s Birthday Honours The following members and former members of the legal profession were awarded honours in the Queen’s Birthday Honours list: Justice Warwick Gendall, of Wellington, was made a Companion of the New Zealand Order of Merit for services to the state and sport. Justice Gendall was recently appointed head of the Parole Board. Professor Peter Skegg, of Dunedin, was made a Companion of the New
Zealand Order of Merit for services to medical law. Professor Skegg is on the Law Faculty at Otago University. Bill Holland, of Tauranga, was made a Member of the New Zealand Order of Merit for services to the community. Mr Holland is a partner of Holland Beckett. Simon Power, of Auckland, was appointed to the Queen’s Service Order for services as a Member of Parliament. Mark von Dadelszen, of Hastings, was awarded the Queen’s Service Medal for services to the community. Mr von Dadelszen is a partner of Bannister & von Dadelszen.
Appointments Mark Treleaven has been appointed the New Zealand Law Society’s National Prosecutions Manager. Mark began his Law Society service 4½ years ago when he joined the Auckland District Law Society. After about a year with ADLS, he then joined the New Zealand Law Society, where he has, until recently, been supervising solicitor of litigation, based in Auckland. In that role, he was responsible for taking prosecutions for Auckland Lawyers Standards Committees. The National Prosecutions Manager is a new role, responsible for managing all Law Society prosecutions in the country. Mark has been a litigator for some 20 years, the first decade as a Crown prosecutor working in the criminal area. He went on to work for the Serious Fraud Office for around two years, following his main interest in fraud litigation. He also worked as a commercial and civil litigator for Morrison Kent in Auckland for about three years. Prosecuting, he says, “is a very interesting career and I enjoy it heaps.” Mark is married to Lisa and they have two children: Josh, who is five, and Grace, who is two. Wilson McKay partner David Clark has been appointed as a mediator for the International Court of Arbitration for Sport. The court is based in Lausanne, Switzerland, with offices in New York and Sydney. There are approximately 50 mediators on the panel internationally and Mr Clark is the only New Zealand appointment.
Law firm news Susan Barker has established CharitiesLaw Ltd, a boutique firm in Wellington specialising in charities law, public tax law (including tax disputes and litigation), advocacy, legal writing, drafting and editing, and commercial law. The firm trades as Sue Barker Charities Law. Elliot Goldman has established Goldman Legal in Queenstown. Elliot will continue to provide legal services to companies and individuals across a range of matters in property, business and immigration law. Elliot has been practising in Queenstown since 2006. Russell McVeagh took home three trophies from the 2012 ALB Australasian Law Awards, presented in Sydney on 24 May. The firm’s corporate team won the New Zealand Deal Team of the Year award. Russell McVeagh partner Pip Greenwood was named the New Zealand Dealmaker of the Year. Bell Gully was named Corporate Citizen Firm of the Year. The award came in the same week that Bell Gully released its third annual pro bono and community report, and recognises the results of Bell Gully’s pro bono programme, which in 2012 saw the firm commit just under $1 million in fee-equivalent time to pro bono legal services. This work included legal assistance connected with the rebuilding of Christchurch and provision of considerable resources to three community law centres. Bell Gully was also named winner of M&A Deal of the Year, for their role in the acquisition of Fosters Group Limited by SABMiller; and New Zealand Deal of the Year, for their role in the Telecom demerger. LT
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CONTACT FRANK NEILL editor @lawsociety.org.nz
LAWTALK 798 / 22 JUNE 2012
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PEOPLE IN THE L AW
Law and poetry tie the knot By HANNAH GRANT Poetry wore white and law donned a suit when they intertwined in literary matrimony. Some thought the two an unlikely couple, but now their union is sealed, little doubt remains concerning their suitability. The wedding took place in Briefcase, the debut book of poetry by Judge John Adams. The book has received high acclaim, being dubbed a creative and moving “poetic smorgasbord”. These are the words of New Zealand Post Book Awards convenor, Chris Bourke, when announcing Waitakere District Court and Family Court Judge John Adams as the winner of the 2012 NZSA Best First Book Award for Poetry. A concoction of poems, fake documents and short prose pieces, Briefcase was published in October last year by Auckland University Press. With the first print selling beyond expectations, within six months a second print was on the shelves. Judge Adams describes the contents of his Briefcase as a casserole. “It has many layers. You put a lot of flavours in and they all soak through into something cohesive and slightly quirky. “I’m a Family Court judge and therefore I’m interested in law, but also people flourishing in their lives. Language and people are my two loves and law is an interest of language,” he says. While doing his Masters in Creative Writing in 2009, Judge Adams was 70,000 words into writing a novel when he discovered that he was never going to be happy with it. “My book was, um, how do I put it? Rubbish, yes, that’s probably the best way to describe it. I then started
together in the narrative.
John Adams
“
Language and people are my two loves and law is an interest of language.
”
JOHN ADAMS writing poetry around legal stuff and the idea grew as the year went on. Judge Adams says the concept began with general thoughts about poetry in legal areas, then developed a focus around a narrative. “The entire collection weaves around an incident where a man threw a stapler across his lounge and hit his wife in the face. He is charged with assault with a weapon and she applies for a protection order. But did he intend to do it or didn’t he? This case sits on the cusp of criminality, mens rea, burdens of proof and a host of other things which come
Blackstone Chambers Human Rights Chambers – Willis Street, Wellington Tony Ellis would welcome another Barrister (or Solicitor) to join our friendly set of chambers. One large room available approx. 4.5m x5m (on the leaving of Michael Bott, Barrister to work from home). Second smaller room also available. Would suit well-experienced lawyer or two less experienced lawyers willing to share. Human rights work may be available for suitably qualified person with civil and criminal legal aid ratings. Alternatively would suit commercial lawyer with secretary/receptionist or junior. Enquiries to tony@blackstonechambers.co.nz phone 04 4731952
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“The whole book is around this case, closely and distantly. There’s one poem, for example, called ‘Staples of Law’, and then there is a restaurant menu which kind of relates to applications for orders to relationship property. The way that things hang together is a little unusual, it has a curious slant on the languages of law,” says Judge Adams. The stories within Briefcase are all set in South Auckland, but Judge Adams says the themes and issues are relevant to common law countries all around the world. To blow our own trumpet, the Law Society even gets a mention, albeit, only for a place to stage a speech. Nonetheless, the prose piece is titled “A Proper Distance” and is a rough draft of notes for a speech to a Law Society Annual Dinner by Professor Jay Cleghorn (an imaginary person). It begins, “I am honoured to speak at this annual dinner of the Law Society. As a retired academic versed in the English language I pondered what topic to speak about to a body of practising lawyers where a topic of general, legal and literary interest is required. With those criteria in mind, I have taken as my topic the question ‘what is the proper distance between a man and a woman?’ Much of literature is given over to this matter...” Judge Adams now works part-time as a judge so he can continue to find time to write. He has used this time wisely as there is another set of his short stories presently being scrutinised at the publisher’s office. “The next book is called The Elbow Stories. “The idea was born from my inclination to pick up on unusual connections between things. Each of the 12 stories mentions ‘elbow’. In fact they are all joined. The first is connected like an elbow to the second and so on by a theme or a motif. “They are all New Zealand stories and are all varied as to voice and style. They are very short and to the point, which I think stems from my experience in writing judgments,” he says. LT
FROM THE COURTS Failed sterilisation is ‘personal injury’ By Alison Douglass* A woman who becomes pregnant following a failed sterilisation has suffered personal injury for which she has cover under the ACC Scheme, the Supreme Court has held in Allenby v H (SC 9 May [2012] NZSC 33). The decision rejects an earlier decision of the Court of Appeal on the same question, ACC v D [2008] NZCA 576, and is an important development in New Zealand’s unique ACC jurisprudence. The appeal was considered under the provisions of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (since amended as the Accident Compensation Act 2010). The full Supreme Court bench was unanimous in the decision that a woman who becomes pregnant following a failed sterilisation suffers personal injury in the impregnation caused by medical misadventure (now known as “treatment injury” as amended in July 2005) under s20(2)(b) of the Act. Chief Justice Dame Elias also held that further personal injuries during the pregnancy are “caused by gradual process that is personal injury caused by medical misadventure” within the cover provided by s20(2)(f). The background was that H had an operation which was intended to render her sterile. It transpired that the operation failed to achieve that purpose as a clip had not been correctly attached to one of her fallopian tubes. She became pregnant and in early 2005 gave birth to a child by caesarean section. H brought proceedings in the High Court, claiming damages against the surgeon and from the District Health Board which employed him. H took a neutral position in the appeal as, depending upon the court’s determination, she would
either maintain her damages claim or seek entitlements under the Accident Compensation Scheme. The Supreme Court decision means that H cannot sue the surgeon who performed the sterilisation procedure for compensation and now opens the way for H to seek entitlements under the Accident Compensation Scheme. The Accident Compensation Corporation appeared as an interested party and opposed the arguments in favour of cover made by the appellant surgeon, as supported by the District Health Board. The corporation’s “floodgates” argument that finding cover regarding other unwanted pregnancies, such as could result from a bursting condom or unprotected sexual intercourse, was rejected. In a similar case, ACC v D, the Court of Appeal previously held that cover did not exist in such circumstances as pregnancy was not a “personal injury” under the legislation. In the High Court, Justice Mallon held at first instance that pregnancy resulting from medical misadventure was covered under the 2001 Act. Justice Mallon observed the development of common law damages claims in the Commonwealth which had succeeded for immediate consequences of the pregnancy and childbirth and the move away from refusing compensation for the “God-given ability to conceive and bear child” as out of date. Some of these cases have viewed pregnancy resulting from failed sterilisation as an “injury” for the purposes of a common law claim, because it harmed the woman or invasion of the bodily integrity despite having a natural bodily process. Although not directly in issue in this appeal, Justice Blanchard (delivering also for Justices McGrath and William
Young) extended the analysis of pregnancy resulting from failed sterilisation to pregnancy from sexual violation as a personal injury under the “accident” provisions in s20(2)(a), as the same question of whether the pregnancy is a personal injury arises. If events in this case had occurred before the commencement of the Accident Rehabilitation and Compensation Insurance Act 1992, it is common ground that H would have had cover for her pregnancy. Justice Blanchard drew on the “tortuous history” of the legislation before 1992 to cast light on the legislative purpose of the Act, concluding that the expression “personal injury” is used in an expansive way and that “it is most unlikely that Parliament, having expressly extended the scheme in 1974 to give cover for pregnancy resulting from rape, would have sought to remove that cover in 1992 without very directly addressing the subject”. The Chief Justice was more cautious about other circumstances in which impregnation and the process of pregnancy may be covered under the Act. Her Honour cast doubt about whether the concept of “consent” and the meaning it gives to “accident” – referred to in the reasons of Justices Blanchard and Tipping – is useful in the context of the legislation. Allenby highlights the difficulties of interpreting ACC legislation in the context of its complex statutory history and the underlying premise of the ACC Scheme replacing the right to sue for personal injury. As plainly stated by the Chief Justice, the Act provides cover on the basis of line-drawing which reflects policy choices. “Such line-drawing has resulted
LAWTALK 798 / 22 JUNE 2012
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The economy of legislation By RACHAEL BRECKON Minister of Commerce Craig Foss talks to LawTalk about the legal profession’s role in international trade, the “appallingly named” Commerce (Cartel and Other Matters) Amendment Bill, the Financial Markets Conduct Bill, and the Patents Bill and what changes lawyers can expect.
Lawyers’ economic role New Zealand’s ability to maintain an honest and workable legal system is integral in developing strong Asian business relationships. “Many countries in Asia value the integrity of our rules and regulations,” Mr Foss says. “What you think you are getting, you are getting. What’s on the label is in the product, and you are treated the same if you break the rules, or laws, if you are a small or a large entity.”
in legislation which is technical. Approaches taken to the interpretation of provisions under earlier accident compensation legislation need to be treated with some caution in considering the current legislation. Nor is this easy legislation to follow,” the Chief Justice said. The Supreme Court has shown an apparent willingness to take an expansive approach to the interpretation of the definition of personal injury, in this instance, to extend cover for personal injury for pregnancy following failed sterilisation where such cover is neither expressly included nor excluded by the legislation. *The convenor of the New Zealand Law Society’s Health Law Committee, Alison Douglass has a background in civil litigation and family law, specialising in health law and bioethics. She was a partner of and then consultant to Tripe Matthews and Feist, Wellington, before going to the independent bar in August 2008. Ms Douglass has recently joined Barristers Chambers in Dunedin and practises out of both Wellington and Dunedin. LT
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Commerce Minister, Craig Foss.
Mr Foss is careful not to take all the credit for the clarity of commerce legislation. A variety of interested parties gather around a table, acknowledge the issues, discover common ground and build bridges to reach a common legislative goal, Mr Foss says. The commerce portfolio is generally bipartisan and the legislation is usually passed with an “all of Parliament” endorsement. Professional organisations such as the New Zealand Institute of Charted Accountants and the New Zealand Law Society also play a vital role in maintaining the country’s legislative integrity, Mr Foss says. This collaborative system results in robust legislation that wins the trust and respect of international trade partners, “which is crucial if we are going to enjoy some of the growth that occurs when Asia emerges and wants to buy some of our services,” he says.
Commerce (Cartel and Other Matters) Amendment Bill Mr Foss is “particularly fond” of the Commerce (Cartel and Other Matters) Amendment Bill but is not a fan of its “appalling” name. He would like to see it renamed The Enablers Bill. Although part of the bill deals with sanctioning deliberate cartel behaviour, it is the vaguely referred to “other matters” which will open doors, he says. A change to competition law will make the definition of anti-competitive behaviour more flexible, allowing scope for pro-collaborative agreements and enabling growth, the Minister says.
“What gets me pretty excited about that bill is the enabling part, in that organisations can get together and look at how they may collaborate and then go to the Commerce Commission for a pre-check and clearance. “At the moment they can’t do that. They’d be held to account by the Commerce Commission who would say: ‘Hold on here, that’s anti-competitive behaviour.’” The Commerce Commission can now look at what “economic mischief” has been created and if there is none, the commission can give a pre-clearance. The form is no longer the test. The test is the economic outcome, Mr Foss says.
Patents Bill The Patents Bill is set to repeal and replace the Patents Act 1953. Although it has been in the works since July 2008, Mr Foss is “pretty confident” that there will soon be some progress. The Patents Bill needs to balance the needs of New Zealand business to secure international patents and uphold international intellectual property agreements outlined in the Madrid Protocol with protecting intellectual property from being too broadly bought up, Mr Foss says. “We need to make sure that, in preserving our kiwi ideas and ingenuity, our patents are as fungible, if you like, as possible around the world so that we’re not an easy target for others in the world simply to tick the New Zealand box and say they have worldwide patents.”
The Intellectual Property Office of New Zealand runs a “world-leading” online registration system. In its first three months of opening more than 4520 trade mark applications and 365 design applications were lodged. This more simplified system of intellectual property protection will not impact on the role of a patent attorney; rather it should make it easier for lawyers to do business, Mr Foss says.
Financial Markets Conduct Bill The draft Financial Markets Conduct Bill aims to create a civil test for civil remedies, and accidental misreporting. “[It will have a] more tiered approach. Right now it is black and white – it’s binary. In the real world, things can happen that a director is totally unaware of, so if that director can say: ‘Here are the minutes, I asked these questions, and I got the report.’ It’s not that they discharged their duty, but they have done everything they are able to, and that’s what most people would expect a director to do.” Mr Foss acknowledges this change in liability has caused concern from larger firms, who have raised them at the
“
Many countries in Asia value the integrity of our rules and regulations.
”
CRAIG FOSS select committee stage. The concerns raised by large firms were over the question of accessory liability and who, if anyone, (in addition to the directors) should also be responsible for a contravention. Under the current law, employees and officers, professional advisers, brokers and investment bankers, who are not typically “promoters”, remain outside the liability net. The submissions of the large law firms
have also pointed to the need for further thought about the framing of the due diligence defences (and the need for a reasonable reliance defence) and a better refection that due diligence is a process that is undertaken in a collective manner and an individual should not need to prove each step in that process.
The commerce agenda •
Financial Markets Conduct Bill
•
Patents Bill
•
Commerce (Cartels and Other Matters) Amendment Bill
•
Financial Reporting Bill
•
Companies and Limited Partnerships Amendment Bill
•
Commerce Commission (International Cooperation and Fees) Bill
•
Insolvency Practitioners Bill
The New Zealand Law Society has made submissions on these bills. The submissions are available on the Law Society’s website www.lawsociety. org.nz. LT
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LAWTALK 798 / 22 JUNE 2012
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SECTION NEWS CLANZ IN-HOUSE LAWYERS NZLS EST 1869
The Law Society’s section for in-house lawyers, CLANZ, held its 25th annual conference last month in Queenstown with the theme Essential Elements of In-House. Delegate numbers were the highest ever at 325 and feedback has been strongly positive. Speakers included Sir Ray Avery, Miranda Harcourt and 14 leading general counsel and chief legal advisors.
PLS (with the NZLS Canterbury-Westland and Wellington branches) and Land Information New Zealand (LINZ) recently co-hosted “lunch and learn” mini seminars in Christchurch and Wellington. Presenters included Registrar-General of Land Robbie Muir and senior LINZ titles advisor Ashley Wright. The sessions have proved popular, and planning is now under way to run them in a few of the smaller regions. The section has published guidance for PLS members on vendor information packs, prompted by a Real Estate Agents Disciplinary Tribunal decision which places a duty on licensees to advise prospective purchasers on title issues.
At the Conference Gala Dinner, CLANZ Awards were presented to Bronwyn Arthur, Chief Legal Officer, CERA for the CLANZ-Chapman Tripp Public Sector In-House Lawyer of the Year; Victoria Spackman, Chief Executive Gibson Group for the CLANZ-LexisNexis Private Sector In-House Lawyer of the Year; Yazmin Juned, Solicitor, Housing New Zealand Corporation for the CLANZ-MAS Young In-House Lawyer of the Year; and Cameron Madgwick, Associate General Counsel, Contact Energy for the CLANZ-Wigley & Co Community Contribution Award for his work with Community Law Centres Aotearoa.
The NZLS CLE Property Law Conference will be held in Auckland on 18 and 19 June, chaired by PLS deputy chair, Andrew Logan.
The CLANZ AGM saw the election of officers. The new CLANZ President is Grant Adam; Vice-President (Auckland) is Charles Spillane; Vice-President (Wellington) is David Dunbar; and secretary is Christopher Guy.
Family law legal aid has been the predominant focus for the Law Society’s Family Law Section (FLS) recently. FLS contributed to further submissions on the new fixed fees framework for family legal aid providers; new legal aid provider contract; and the draft information pack for providers setting out the Ministry of Justice’s Legal Services policy and procedures.
The section also hosted two CLANZ-Bell Gully General Counsel forums in May in Auckland and Wellington, with a focus on creating a high performance culture within the legal team. CLANZ and its Australian counterpart ACLA are currently putting together a report on a Trans-Tasman Leading Practices and Benchmarking survey focused on in-house best practice. The final report will be available mid-July.
PROPERTY LAW SECTION NEW ZEALAND LAW SOCIETY
NZLS EST 1869
The Law Society’s Property Law Section (PLS) Executive Committee meeting was held in Auckland on 3 May combined with a collegial regional lunch for local property lawyers (both PLS members and non-members). At the meeting Chris Moore was re-elected chair; Andrew Logan, deputy chair; and Peter Fanning as treasurer.
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FAMILY LAW SECTION
NEW ZEALAND LAW SOCIETY
NZLS EST 1869
FLS hosted 18 meetings with family lawyers in various centres to discuss anticipated changes to the legal aid system, including new provider contracts and fixed fees for family legal aid. It also hosted two formal dinners, one in Wellington on 30 March, to welcome Judge O’Dwyer, and one in Northland on 18 May to celebrate Judge Lindsay’s appointment to the Family Court bench. The section has also been extensively engaged with the Ministry of Justice to seek a solution to the significant problems family lawyers are experiencing in Auckland due to the centralisation of court services. FLS is currently preparing the Law Society’s submission on the Child Support Amendment Bill, which proposes the most significant changes to the child support scheme since its inception 20 years ago. At the last FLS Executive Committee meeting, Garry Collin was elected chair; Catriona Doyle, deputy chair; and Tim Black as treasurer. LT
PROFESSIONAL INDEMNITY
Damian Schade
In this issue we begin a bi-monthly column on matters connected to professional indemnity insurance. The writer, Damian Schade, is Principal, Assistant VicePresident and Solicitors Practice Leader at Marsh. Damian advises professional firms on all areas of risk management and liability insurance. He can be contacted at damian.schade@marsh.com.
Professional Indemnity and the Steigrad Ruling Will your firm’s professional indemnity policy provider respond to fund your defence if your policy is charged under s9 of the Law Reform Act 1936?
Introduction Section 9 of the Law Reform Act 1936 provides that where any policy exists that indemnifies an insured against liability for damages or compensation and on the happening of an event giving rise to a claim, a “charge” is created over all of the insurance monies which are, or may become, payable under that policy. This charge is enforceable by a third party claimant by way of action directly against the insurer.
Developments A professional indemnity policy indemnifies against liability to pay damages and compensation and provides defence costs. As such s9 can be applied if the professional indemnity policy does not provide separate limits of coverage for defence costs.
read the specific wording relating to the limit of indemnity so you can ascertain whether your policy provides for a costs inclusive or costs in addition limit. If your policy limit is costs inclusive, then if there is a s9 charge you may not be able to access legal costs to defend your position for that claim. The charge may also preclude you from accessing settlements or legal costs for any further claims that arise. However, if your policy limit is costs exclusive (ie, legal costs are provided in addition to the limit of indemnity), then if there is a charge you should (depending on the specific wording) be able to access defence costs from your insurers.
Recommended solution There are a number of potential market solutions that are available if your policy leaves you at risk for costs in the event of a charge. The most widely accepted of these is to obtain legal defence costs cover in addition to your current limit of indemnity. This will provide separate defence costs if your policy is charged and you are unable to access the main policy limit.
Conclusion As a law firm, you need to ensure that you have adequate protection. During these periods of increased risk, and given the volatile litigation environment, does your current professional indemnity policy structure meet your firm’s specific requirements? If the answer to this question is “no” or “not sure”, it might be time to make some changes. Disclaimer: Statements concerning legal matters should be understood to be general observations based solely on our experience as insurance brokers and risk consultants and should not be relied upon as legal advice, which we are not authorised to provide. All such matters should be reviewed with your own qualified legal advisors. LT
LE T TER TO THE EDITOR
Mediation
In Steigrad v BFSL 2007 Ltd (15 September 2011, HC Auckland, Lang J, CIV-2011-404-000611), the charge was held to prevent the Directors and Officers insurer from advancing defence costs to certain directors. In recent New Zealand cases this charge has been applied to professional indemnity insurance policies which have shared coverage limit for damages and defence costs.
Yawn yawn, Mr Becker (LawTalk 795, p4). More kneejerk regulatory paradigms that we all know serve to sustain the egos of the self-righteous.
The Steigrad decision is under appeal and we consider that there are almost certainly more developments to come in regard to the application of s9.
I never knew a regulated, heavily statute-ridden society that eradicated all credibility concerns. But I’ve sure seen those states diminish innovation, creativity and general joy in the pursuit of volition whilst doubling costs for the end users.
Is your law firm protected? First things first. You need to open your policy document and
Punters genuinely wanting mediation services will be sharper to their needs than you probably believe, certainly beyond your comparisons to the unassuming consumer.
Troy Churton Auckland
LAWTALK 798 / 22 JUNE 2012
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Marianne Elliot in hills above Chegcharan.
Zen under fire By RACHAEL BRECKON Armed with a master’s degree in law from Waikato University and a passion for Human Rights, Marianne Elliot embarked on a journey that would see her working in some of the most dangerous places in the world. In 1996, 27-year-old Ms Elliott began what would become a career in international human rights at the Gaza strip. Part of her role was to document events at flash points, a place where Palestinians and Israelis meet and conflict can break out. There she would analyse whether the violence, which could be towards children and citizens, was a breach of international human rights law. After this, she led the creation of the Action Plan for Human Rights in New Zealand and helped the Timor-Leste government launch their human rights strategy. The journey led her to Herat, Afghanistan in 2006 and 2007. This station as a human rights officer for the United Nations assistance
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mission to Afghanistan is the main subject of her memoir Zen under Fire. Ms Elliott illustrates the personal, philosophical and political difficulties in trying to uphold international human rights in a war zone through documenting her journey in one of the world’s most notorious war zones. Her book humanises the complexities of the Afghanistan struggle and New Zealand’s role in international human rights. New Zealand does have more influence than you would expect for its size, due to a record of being “good international citizens”, and it is important for Afghanistan that New Zealand does not give up on it, Ms Elliot explains. “Afghanistan is not a lost case. It is not a hopeless case. “Improvements have been happening over the past decade. There are a lot of passionate committed Afghan advocates for rule of law and for human rights who have appreciated the
support of the international community and who are hoping that it won’t be withdrawn. “I feel like if you just read the news, the mainstream news, it would be really easy to think: ‘my god that country is just a basket case and it’s all over really’. “There is a lot more going on in Afghanistan than just the fighting. There has been a lot of reconstruction happening and a lot of work put into the justice sector and there are some really amazing advocates for women’s rights and for human rights. “[In the book] I talked about these women who have really stepped up and they have put themselves at considerable risk to make the changes they really want to see happen.” When asked what she would like lawyers to take out of it, Ms Elliott’s goal appears relatively simple: “It might just be it makes them a little more interested.”
WHAT’S NEW? Home grown and operated e-discovery system LawFlow is an online e-discovery system which allows users to upload documents to New Zealand servers, which can then be accessed by lawyers, counsel and clients remotely for the purpose of analysing documents as part of litigation proceedings. “There are several New Zealand companies offering e-discovery services and reselling foreign (mainly US) software. However we are claiming a ‘New Zealand first’ for being the only e-discovery software designed, developed and operated in New Zealand specifically tailored for New Zealand requirements,” says founder, Guy Burgess.
“In particular, it is designed specifically to meet the new High Court Rules (in force since February this year). So for the first time, New Zealand firms now have a local option when looking for an e-discovery solution. The asserted benefits include the ability for all stakeholders to remotely and securely access data, all data remains hosted in New Zealand, reducing the risk of having your data sent overseas. If support is needed, it is available in the same time zone. “It is a cloud computing solution, fully hosted in New Zealand. This means that data is not stored in a foreign jurisdiction – it is hosted in our secure Auckland CBD data centre. This can be a big concern to some users, who like cloud computing but don’t like the idea of having their data stored in another country,” says Mr Burgess. More information is on the LawFlow website, www.LawFlow.co.nz. LT
LawTalks wanted As a result of the earthquakes that damaged Christchurch, the Judges’ Library lost some of its collection of past LawTalks. While it has filled some of the void, it is still seeking some back issues, and would be grateful if any lawyers have copies they could send to the library. The needed numbers in descending order are: 755 to 763, 722 to 753, 683 to 685, 672 to 679, 659 to 670, 583 to 620, 562 to 579, 581, 558 and 551. The mailing address is either: Judges’ Library, High Court, DX WX10021, Christchurch or the temporary address (away from the red zone) is: 4-6 O’Briens Rd, Unit 7, Sockburn, Christchurch 8042.
Applications open for major research award
Giving Afghan lawyers, police officers and people a face and name (even if it had to be changed for their personal safety) and consequently challenging stereotypes of Afghan people is “very, very central” to Zen under Fire. “If that in itself is all I achieved with the book, I would be really happy,” she says. LT
Legal experts are being encouraged to apply for New Zealand’s premier legal study award before the 1 September closing date.
academics, judges, government officials or legal practitioners. Recent winners include many of our most distinguished legal experts.
The New Zealand Law Foundation International Research Fellowship provides each year’s winner up to $125,000 towards research here or overseas that aims to make a significant contribution to our law.
Auckland University Law School Professor Ron Paterson was the 2009 award winner, enabling him to write his important new book, The Good Doctor – What Patients Want.
Law Foundation Director Lynda Hagen says the fellowship always attracts keen interest because it is large enough to allow recipients considerable absence from their regular work to do sustained research. “We believe it is vitally important that leading legal scholars have access to grants that enable them to produce high-quality, well researched work on major public policy challenges,” she says. The fellowship is open to anyone with the required abilities, including
The 2010 winner, Professor Campbell McLachlan QC of Victoria University Law School, is using the grant to write a book on foreign relations law. An earlier winner, Dr Mark Hickford, senior legal advisor in the Department of Prime Minister and Cabinet, has recently published his criticallyacclaimed work, Lords of the Land, on relationships between the Crown and Māori. Further information on applying can be found at the Law Foundation website, www.lawfoundation.org.nz. LT
LAWTALK 798 / 22 JUNE 2012
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THE BOOKSHELF P
This little book is written for people who have no legal knowledge but who are interested in, or contemplate becoming a trustee. It is also aimed at people who are already acting as trustee but are unsure of their duties. Clear and straightforward it will tell you everything you need to know about: • What a trust is
• Appointment, retirement and removal of trustees • Duties of trustees
• Powers of trustees
• Rights of trustees and beneficiaries • Liabilities of trustees
By Alastair McKenzie • Relief of trustees
It also includes a glossary, specially for those without legal knowledge, and a checklist of frequently asked questions.
CO33905_Nevills Guide to being an Executor 3_4.indd 1
BOOK OF THE MONTH
TOP 100 QUESTIONS AND ANSWERS ON EMPLOYMENT LAW By Linda Pattullo This is a compilation of questions asked by subscribers to CCH’s question and answer service. As such they cover practical inquiries in all areas of employment law. Some relate to very specific factual situations (eg, “A gymnastics club contracts coaches from midJanuary to mid-December each year. At the termination date, in December, the club pays holiday pay. Does …”) while others are more general (eg, “When must wages be paid?”). A detailed answer follows each question, with references to case law and legislation and comments on relevant issues where appropriate. Questions are grouped by subject matter, making information easy to locate. (CCH New Zealand, May 2012, 978-0864759-76-4, 265 pages, paperback, $80 GST & p&h excl).
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LAWTALK 798 / 22 JUNE 2012
RICHARDSON
The author, Nicky Richardson is a Senior Lecturer in the School of Law at Canterbury University and the author of the highly popular and successful Nevill’s Law of Trusts, Wills and Administration.
Lawyer and tax expert Alastair McKenzie has authored every P edition of this comprehensive guide to New Zealand’s GST system. As well as providing an overview of the framework and operation of GST, the Guide looks at special problem areas and contentious issues. The practical focus is provided with case studies and illustrative examples. The law is stated as at 1 January 2012. (CCH New Zealand, May 2012, 978-0-864759-35-1, 473 pages, paperback and e-book, $110 GST & p&h excl).
NEVILL’S GUIDE TO BEING AN EXECUTOR
GST – A PRACTICAL GUIDE, 9TH EDITION
NEVILL’S GUIDE TO BEING AN EXECUTOR
Nevill’s Guide to being an Executor NICKY RICHARDSON
By Nicky Richardson A slim practical guide which has been written for people with no legal knowledge. Dr Richardson stresses that the book is not intended to replace the need for legal advice. Plain English, minimal footnotes and clear headings provide essential information about the duties and responsibilities of executors and administrators. An extensive index makes location of information easy. Could be a useful item to include in reception areas or to cover in client newsletters. (LexisNexis, June 2012, 978-1-92714-949-2, 76 pages, paperback, $49.45 GST incl, p&h excl). 5/03/12 10:44 AM
Finding free New Zealand case law online When it comes to finding case law, New Zealand lawyers and legal researchers start with two fundamental choices. The online collections provided by LexisNexis, Thomson Reuters and CCH contain a high degree of added value, which can greatly assist in location and interpretation of the most relevant cases. However, the cost of providing that added value means there is a charge. The second choice is free access to a rapidly growing collection of cases and decisions from New Zealand courts, tribunals and regulatory bodies. There are now well over 60,000 free full-text decisions from New Zealand courts and tribunals available online. The price of this free access is often restricted coverage, less than elegant formatting and restricted searchability. The following guide provides information on where to go to find free full-text New Zealand case law from courts and tribunals, with some observations on the coverage provided. As will become clear, the debt owed to NZLII and its stakeholders is big. The information states the position at 1 June 2012, and does not include sites which summarise decisions.
Accident Compensation Appeal Authority: www.nzlii.org/nz/cases/NZACAA/. From 1978 to 2012, 1187 decisions. Presented as a pdf of the original decision. Accident Compensation appeals heard in District Courts: www.nzlii.org/nz/cases/ NZACC/#ACC. From 1993 to 2012, 4856 decisions. Presented as pdfs of the original decisions 1993 to 2000 and as html from 2001 onwards. Commerce Commission: www. comcom.govt.nz. From 1997 to 2012, an unknown number of decisions. Presented in pdf. Very difficult to find, but start in the appropriate area of operation and keep going until you narrow it right down (eg, Business Competition/Mergers and Acquisitions/ Authorisations/Authorisations Register). It’s easier at www.nzlii.org/ nz/cases/NZComComm/ where there are 335 decisions from 1993 to 2012, all presented in html. Copyright Tribunal: www.nzlii. org/nz/cases/NZCopyT/. From 1977 to 2010, 18 decisions. Presented as pdfs of the original decisions 1997 to 2001 and as html from 2004 onwards. Coroners Court: www.courts. govt.nz/courts/coroners-court/ recommendations-register-data for decisions from 2007 to 2010 (204 decisions) in pdf format, and www.nzlii. org/nz/cases/NZCorC/ for 2011 to 2012 (178 decisions) in html. Court of Appeal: There are two main collections. www.nzlii. org/nz/cases/NZCA/ is the most comprehensive, with 6314 decisions from 1966 to 2012. These are in pdf for 1966 to 1998 and html for 1999 onwards. jdo.justice.govt.nz/jdo/Search.jsp is the official Ministry of Justice site and this provides all Court of Appeal decisions delivered since 2003 in pdf format. Customs Appeal Authority: www.nzlii.org/nz/cases/NZCAA/. From 2000 to 2012, 42 decisions. Presented in html. Deportation Review Tribunal: www.nzlii.org/nz/cases/NZDRT/. From
1979 to 2010, 287 decisions. Presented in html. Disputes Tribunal: www.nzlii. org/nz/cases/NZDispT/. From 2006 to 2010, 230 decisions. Presented in html. District Courts: The big missing piece – both for paying customers and those looking for free online District Court decisions. Employment Court: www.courts. govt.nz/courts/employment-court/ judgments-of-the-court-1. From 1 July 2006 to 2012. Presented in pdf format. Employment Relations Authority: www.dol.govt.nz/ workplace/determinations/. From 2005 to 2012, 7326 determinations. Presented in pdf format. At www.nzlii. org/nz/cases/NZEmpC/ there are 4102 determinations from 2007 to 2012 in html format. Environment Court: www. nzlii.org/nz/cases/NZEnvC/. From September 1996 to 2012, 6682 decisions. Presented in html. A rather haphazard collection of decisions from 2008 to 2010 is available in pdf at www. justice.govt.nz/courts/environmentcourt/legislation-and-resources/ decisions.html. Family Court: www.justice.govt. nz/courts/family-court/legislation/ decisions-1/decisions. Selected decisions from 2005 to 2012. Not comprehensive or organised by area of law. Presented in pdf format. Health Practitioners Disciplinary Tribunal: www.hpdt.org.nz/Default. aspx?tabid=65#HPDT%20decisions. From 2001 to 2012, 194 decisions. Presented in html. High Court: http://jdo.justice.govt. nz/jdo/Search.jsp. The official Ministry of Justice site contains decisions from August 2005 to 2012 in pdf format. The most comprehensive database is at www.nzlii.org/nz/cases/NZHC/. This contains 15,732 High Court decisions from 1963 to 2012 in html. Human Rights Review Tribunal: www.nzlii.org/nz/cases/ NZHRRT/. From 2002 to 2012, 337 decisions. Presented as html. Immigration and Protection Tribunal: www.justice.govt.nz/ tribunals/immigration-protectiontribunal/decisions is the official database for decisions from 2010 to 2012, and this is currently adding pdf decisions by the previous immigration decision-making bodies. www.nzlii.org/ databases.html contains decisions by these from 1991 to 2010 when they were
absorbed into the current tribunal. Land Valuation Tribunal: www. nzlii.org/nz/cases/NZLVT/. From 2000 to 2012, 86 decisions. Presented as html. Lawyers and Conveyancers Disciplinary Tribunal: www. justice.govt.nz/tribunals/lawyers-andconveyancers-disciplinary-tribunal/ decisions-of-the-tribunal/decisionsby-year. Selected decisions from 2010 to 2012, 24 decisions. Presented in pdf format. www.nzlii.org/nz/cases/ NZLCDT/ has 64 decisions from 2009 to 2012 in html. Liquor Licensing Authority: www.nzlii.org/nz/cases/NZLLA/. From 2000 to 2012, 6727 decisions. Presented as html. Maori Appellate Court: www. justice.govt.nz/courts/maori-landcourt/significant-judicial-decisions-1/ maori-appellate-court-judgments. From 1993 to 2012, 230 decisions. Presented in pdf format. Also at www.nzlii.org/nz/ cases/NZMAC/. From 1962 to 2012, 260 decisions. Presented as pdf from 1962 to 2003 and html from 2004 onwards. Maori Land Court: www.justice. govt.nz/courts/maori-land-court/ significant-judicial-decisions-1. From 2005 to 2012 in pdf format. Also at www.nzlii.org/nz/cases/NZMLC/. From 1993 to 2012, 621 decisions. Presented as pdf from 1993 to 2001 and html from 2002 onwards. Medical Practitioners Disciplinary Tribunal: www. mpdt.org.nz/decisionsorders/. From 1997 to 2012, 157 decisions. Presented in pdf format. Mental Health Review Tribunal: www.nzlii.org/nz/cases/ NZMHRT/. From 2009 to 2011, 13 decisions. Presented as html. Motor Vehicle Disputes Tribunal: www.nzlii.org/nz/cases/ NZMVDT/. From 2006 to 2012, 1204 decisions. Presented as html. Planning Tribunal: www.nzlii. org/nz/cases/NZPT/. Selected decisions from 1978 to 1996, 2404 decisions. Presented in pdf format. Real Estate Agents Disciplinary Tribunal: www. justice.govt.nz/tribunals/realestate-agents-disciplinary-tribunal/ documents/Portfolio-of-Recentdecisions-2010-11.pdf for selected decisions from 2010 to 2012 (44 decisions) in pdf format and www.nzlii. org/nz/cases/NZREADT/ for decisions from 2010 to 2012 (57 decisions) presented as html. Sports Disputes Tribunal:
www.sportstribunal.org.nz/decisions-11/ index.html. Selected decisions from 2003 to 2012. Presented in pdf format. Supreme Court: jdo.justice.govt. nz/jdo/Search.jsp. The official Ministry of Justice site has all 939 decisions of the court from its establishment in 2004 to 2012. These are presented in pdf format. www.nzlii.org/nz/cases/NZSC/ has all decisions from 2004 to 2012 in html. Weathertight Homes Tribunal: www.nzlii.org/nz/cases/ NZWHT/. From 2003 to 2012. 155 decisions. Presented as html.
Legal e-book offerings increase Two of New Zealand’s three main legal publishers are offering a good range of titles in e-book format. LexisNexis, which was the first company to enter the field, has now published 49 e-books. CCH New Zealand has 14 e-books available and says it will continue to add new titles throughout 2012. Thomson Reuters is still to produce its first New Zealand e-book. Indications are that many lawyers are still to make the move into e-book purchase. LexisNexis, the trail blazer, says the market is at an “early adopter stage”. A recent New Zealand survey carried out by Thomson Reuters found that 17% of respondents used their tablets for reading e-books, although this could be as much for John Grisham as McGechan on Procedure. Both LexisNexis and CCH e-books can be viewed on a PC or Mac using the free Adobe Digital Editions application and on a tablet device using the free Bluefire Reader. Thomson Reuters is going in a different direction and has launched its own “Thomson Reuters ProView e-Reader app” almost everywhere except New Zealand. CCH New Zealand Marketing Executive Lynne Sharp says CCH e-books replicate the content of their print edition equivalent while offering the additional value of quick link navigation and access from tables of contents, paragraph cross-references and index entries. She says the downloadable applications can be used to access additional features including bookmarking, inserting notes, highlighting text and altering font types and sizes. The use of the e-book format (check out http://issuu.com/rwalthall/docs/ advocate_autumn12 for an example) appears to have become another established way of presenting legal information. How quickly New Zealand lawyers get on board will be interesting. LT
LAWTALK 798 / 22 JUNE 2012
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UPCOMING PROGRAMMES Programme
Presenters
Content
Where
When
SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Family Legal Aid fixed fees
Michele McCreadie Georgina Miller Adriana Nickless
From 23 July 2012 most new family legal aid cases will come under the fixed fee Your framework. This one hour webinar explains how these changes will affect you and, computer in particular, how to claim payment for a fixed fee case so that it can be processed in a timely fashion. The presenters will discuss the fixed fee schedules, including Webinar the different activity types, talk you through the requirements for invoicing with a focus on; completing a fixed fee invoice form, explain the criteria for “fixed fee plus” cases including, replacing a fixed fee, estimates, and disbursements, the new amendment form and the new fixed fee plus invoice form.
10 Jul
There is no cost for this webinar as it is funded by Legal Aid Services. However you must register. Building Profitability: Leverage, Leadership and Management
Irene Joyce
There is now a reputable body of evidence that supports the link between law Christchurch firm profitability and effective leverage. However, increasing profitability through leverage is not just about adding more fee-earners. It means that partners must make a shift from the all-consuming role of “producer”, and take on the leadership and management of others. It requires partners to act like owners rather than employees. The shift includes developing proactive leadership skills to manage staff performance and productivity. The workshop will identify the day-to-day skills required to motivate staff and achieve high performing leveraged teams.
23 Jul
Litigation Against Directors and Companies
Colin Carruthers QC Victoria Heine
With the recent successful prosecutions, are you confident that you are giving the best advice to company directors and officers? This seminar gives an overview of current law and law reform proposals, including the range of new enforcement actions under the Financial Markets Conduct Bill and enforcement under the Commerce Act. Key practical and strategic issues which need to be considered when advising directors facing regulatory investigations, or litigation will also be discussed. A live two hour webinar will be held for smaller centres.
Dunedin Christchurch Wellington Auckland
24 Jul 25 Jul 26 Jul 27 Jul
Webinar
26 Jul
Stepping Up – Foundation for practising on own account
Director: John Mackintosh
The new national course Stepping Up replaces the various local Flying Start Christchurch courses. All lawyers wishing to practise on their own account whether alone, Auckland 2 in partnership, in an incorporated practice or as a barrister, will be required to Wellington complete the course. Developed with the support of the New Zealand Law Foundation. (From 1 August 2012 (date subject to ministerial approval) Stepping Up will be a compulsory prerequisite for lawyers applying to be barristers sole).
19-21 Jul 6-8 Sep 8-10 Nov
Tax Conference
Chair: Mathew McKay
The annual NZLS CLE Tax Conference is an important event for all those working Auckland in this ever-changing and demanding area of the law. You can look forward to first class presentations around the latest developments in case law and black letter law. The day provides a great opportunity for NZ’s relatively small number of tax practitioners to come together and share ideas and experiences.
5-Sep
Lawyer as Negotiator
Jane Chart
Building on participants’ own experience, this one and a half day workshop Wellington 2 provides hands-on practice and feedback, as well as a conceptual framework Auckland 2 for preparing for and undertaking negotiations. It uses cutting edge research to examine different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, for addressing specific issues which participants might wish to raise and for generally enhancing skill and confidence in this vitally important aspect of practice.
30-31 Oct 7-8 Nov
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.
Online registration and payment can be made at www.lawyerseducation.co.nz
Programme
Presenters
Content
Where
When
SEMINARS / INTENSIVES / WORKSHOPS / CONFERENCES / WEBINARS FOR 2012 Litigation Skills
Director: Jonathan Krebs Deputy Director: Janine Bonifant
This highly regarded residential week-long course is open to applicants Christchurch with at least three 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.
19-25 Aug
Applications close 22 June 2012 Conflict of Laws and Trans-Tasman Enforcement
David Gooddard QC Transactions and people cross borders with great frequency. It is common Christchurch Prof Campbell McLachlan QC for all lawyers to encounter transactions, relationships and disputes that have Auckland connections with more than one country. The issues are as diverse as the Wellington jurisdiction in which a billion dollar financing agreement may be enforced, and trying to enforce a New South Wales District Court judgment against a judgment debtor living in New Zealand.These issues affect all practitioners and you especially need to be aware of the new High Court Rules; and new regime for trans-Tasman proceedings which will shortly be in force.
2 Aug 9 Aug 10 Aug
TRUST ACCOUNT TRAINING PROGRAMMES 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’ Hamilton Wellington preparation, attend the assessment day and pass all assessments. Make sure you register in time to do the preparatory work before the Auckland Christchurch assessment day as listed on the right.
11 Jul 12 Sep 14 Nov 21 Nov
ENTRY LEVEL PROGRAMMES
Developed with the support of the Law Foundation Introduction to Company Law
Jeremy Blake Andrew Leete John Horner Anne McLeod Graeme Switzer Daniel Wong
This is a practical two-day workshop for practitioners in their first three Wellington years’ of practice with small, medium or large firms. It will cover issues such as acquiring a business, funding, governance, distributions, expansion, shareholder disputes, financial problems and the sale of shares. Participants will gain many practical tips to enable them to develop good practice and provide quality advice to their clients.
Residential Property Transactions
Debra Dorrington Simon Ellis Nick Kearney Duncan Terris
This very popular two-day, limited-number workshop, for solicitors at the start of their property law career and legal executives with some experience, follows three files from client instructions to settlement and beyond.
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)
Hamilton Tauranga Rotorua Dunedin Invercargill Wellington 2 Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei
28-29 May (Full)
Christchurch Wellington Hamilton Auckland
11-12 Jun 16-17 Jul 18-19 Jul 23-24 Jul
Intro
Asssessment
Practice Court
1 Jun 1 Jun 1 Jun 13 Jul 13 Jul 3 Aug 3 Aug 3 Aug 3 Aug 3 Aug 21 Sep 21 Sep
20 Jul 20 Jul (in Ham) 20 Jul (in Ham) 31 Aug 31 Aug (in Dun) 14 Sep 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 14 Sep (in Wgtn) 26 Oct 26 Oct (in Man)
21 Jul 21 Jul (in Ham) 21 Jul (in Ham) 1 Sep 1 Sep (in Dun) 15 Sep 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 15 Sep (in Wgtn) 27 Oct 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
BRANCH NEWS WELLINGTON
OTAGO
NEW ZEALAND LAW SOCIETY
NEW ZEALAND LAW SOCIETY
NZLS EST 1869
NZLS EST 1869
Wellington branch AGM The Annual General Meeting of the Law Society’s Wellington branch will be held on 27 June 2012.
Otago Law Society prize granted
Karl was the only man from New Zealand and one of just two people representing this country in the competition.
The full notice of the meeting and agenda can be viewed at http://bit.ly/ Nu81Zl.
Jason Varuhas, Victoria University law alumnus and former faculty member, has Jason Varuhas been awarded the Yorke Prize at Cambridge University. Mr Varuhas was awarded the annual prize for his PhD thesis Damages for Breaches of Human Rights: A TortBased Approach. Mr Varuhas is currently a research fellow at Christ’s College, Cambridge, and affiliated lecturer in the University of Cambridge Faculty of Law. He is presently working on a book based on his PhD thesis, which is to be published by Hart Publishing, Oxford, in 2013. The Yorke Fund was endowed in 1873 by the will of Edmund Yorke, alumnus of Rugby School, scholar and later Fellow of St Catharine’s College, Cambridge and barrister of Lincoln’s Inn, London.
HAWKE’S BAY Otago branch President, Associate Professor Donna Buckingham with Joshua Williams Prize winner Allan Brent (left) and Thomson Reuters prizewinner Deborah Tillett (right).
The two Otago Law Society prizes were among the awards presented at Otago University’s May law graduation function. Heidi Baillie and Luke Morrison won these prizes, awarded for general excellence throughout the degree course at bachelor level. Both LLB and LLB (Hons) students are eligible for these prizes. Another prizewinner was Allan Brent, who has something of a legal pedigree. He is the son of David Brent of Gallaway Cook Allan. Allan won the Joshua Williams Memorial Prize. Deborah Tillett won the Thomson Reuters Prize in Law. This is an annual prize which was established in 1996 and is awarded to the student who produces the best research dissertation. Deborah’s thesis was “Did you Not Say No?” How Cross-Examination May Influence Child Witnesses’ Accuracy and the Viability of the ‘Intermediary’ Solution. Associate Professor Donna Buckingham supervised Deborah’s thesis. Both Allan and Deborah are now at Simpson Grierson.
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LAWTALK 798 / 22 JUNE 2012
Otago branch manager Karl Hewitt gained two podium finishes at the ISU (International Skating Union) International Adult Figure Skating Competition, held in Orberstdorf, Germany, from 22-26 May. Karl placed second in his division (Silver Men II) of the artistic competition and third in the same division of the free skating contest.
All members of the branch are invited to attend the AGM and to stay for drinks and finger food afterwards.
Vic alumnus wins Yorke Prize
Otago branch manager’s ice-skating success
NEW ZEALAND LAW SOCIETY NZLS EST 1869
Hawke’s Bay update Hawke’s Bay branch President Jonathan Krebs says the region’s lawyers are in “good heart”. The Hawke’s Bay Public Defence Service opened in May with former local barrister Amit Malik in charge of the office. “With only one exception, all appointments have been from the local bar and we are very pleased about that,” Mr Krebs says. The profession united in late May to farewell Sir Rodney Gallen. The memorial sitting was presided over by Chief Justice Dame Sian Elias alongside High Court Judges, and retired Judges Anthony Doogue and Sir Owen Woodhouse. A bar dinner followed, with most of the judges attending as guests, along with the Attorney-General, Chris Finlayson, who was the guest speaker. Looking forward, work continues with locals preparing for a crisp, sunny, typical Hawke’s Bay winter, Mr Krebs says. LT
BR ANCH NEWS
Young Hawke’s Bay lawyers with the Chief Justice Dame Sian Elias at the recent bar dinner. They are (from left) back row: Sarah Beckett, Marla Alexander-Ward and Nicola Rawnsley; front row: Nicola Booth, Dame Sian and Bodee Oliver, who was admitted just three days ago, on 19 June.
Enjoying drinks at the Hawke’s Bay bar dinner, which proved highly successful.
CONTINUING YOUR PROFESSIONAL DEVELOPMENT Succession planning for rural practitioners – webinar Family farming has long been held as the cornerstone of the New Zealand agricultural system. However for this to continue, the farming business must be able to transfer its assets successfully from one generation to the next. This issue has become more pronounced with rising capital land values and unmatched increases in productive returns.
make that viable until the last couple of years but now it is so that is driving interest in the area,” he says. 135 people tuned in to the webinar and a number of questions cropped up dealing with conflicts of interest, valuation issues and relationship property. Feedback from the webinar was largely good, with participants stating that the practical nature of the session was positive, as were the case studies and calibre of presenters. LT
The Succession planning for rural practitioners webinar, held on 12 June, discussed how best to assist families to manage this process, and outlined the implications that the different ownership structures will place on the process and the parties involved. Presenter Tim Black says the webinar focused on the conceptual issues that you need to take into account when working through farm succession planning with clients such as equality versus equity and relationship property challenges for rural families. “It was about getting people involved and seeing it as a human issue. We have an ageing population of farmers, particularly sheep and beef farmers and there is an issue around getting the next generation into those businesses. The return from those businesses hasn’t been enough to
Fraser Goldsmith, formerly senior commercial partner and a former chairman of partners of Anderson Lloyd, celebrates a buoyant first year in sole practice with a move to expanded premises on the 5th and 6th Floors of Forsyth Barr House, The Octagon, Dunedin. Goldsmith Law provides strategic guidance on the commercial, legal and political management of complex commercial projects and entrenched disputes, focusing currently on the health sector, greenfields property developments and the dairy and wine industries.
www.goldsmithlaw.co.nz
LAWTALK 798 / 22 JUNE 2012
25
LAWYERS COMPLAINTS SERVICE Lawyers fined for breaching trust account rules A Lawyers Standards Committee recently dealt with two similar cases involving breaches of trust account requirements and a failure to provide letters of engagement. Each lawyer was censured and fined $2,000. The standards committee had carried out an own-motion investigation in each situation following Law Society inspections.
came into force in August 2008. The standards committee found that each of the three sets of breaches amounted to unsatisfactory conduct. On a fourth issue revealed by the inspection – a small number of stale unpresented cheques – the standards committee decided to take no further action, given that A had cancelled them and posted them back to the respective clients’ accounts. He had now also taken steps to prevent any recurrence. The standards committee censured A, fined him $2,000, and ordered him to pay the Law Society $1,000 costs.
Advance accounts not to be overdrawn at any time
Dormant balances to be dealt with promptly
In the first case, the lawyer (A) had repeatedly overdrawn his firm’s interest in trust (its “advance account”), in breach of the Lawyers and Conveyancers (Trust Account) Regulations 2008 (reg 6(3)). An advance account is the amount of money held in a firm’s trust account that belongs to the firm. It’s normally used to lend money to a client to cover disbursements when there is not enough money for this in the client’s trust ledger account. The standards committee said that A’s breaches here were serious, and noted he had been warned about this in the past.
In the second case, the lawyer (B) had not dealt with a number of dormant trust account balances for a substantial period, some for up to four years. The standards committee said it was “imperative that lawyers deal with such dormant balances in an expeditious manner”. If they can’t locate the relevant client and have no authority to pay the money to anyone else, they must pay it to Inland Revenue.
The inspection had also revealed that A had conducted a number of personal transactions through his trust account. The regulations bar lawyers and their employees from using trust account funds for “private or household transactions” (reg 8). Finally, A had failed to provide terms of engagement letters to any clients, breaching the Conduct and Client Care Rules (Rules 3.4 and 3.5). A had now begun to provide these for new clients, the Inspectorate having informed him that new letters of engagement were not necessary for repeat instructions for the same kind of work (see Rule 3.6). The standards committee, however, said this new step didn’t excuse A from not having complied at all with these mandatory requirements, since they
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LAWTALK 798 / 22 JUNE 2012
To complete a purchase on which he had been acting, B had also provided an incorrect certificate to a bank, undertaking that he held professional indemnity insurance sufficient to cover the lending required by the transaction. In fact he had no professional indemnity insurance at all. He had told the Inspectorate he hadn’t believed it necessary to make the bank aware of this, as the transaction was urgent and he believed there was no risk. The standards committee found that his conduct had been misleading and that by falsely certifying he had insurance he had breached Rule 2.5. By breaching his undertaking he had also breached Rule 10.3. Finally, B had also failed to provide terms of engagement for a number of clients, breaching Rules 3.4 and 3.5. The standards committee found B guilty of unsatisfactory conduct. He was censured, fined $2,000, and ordered to pay $1,000 costs to the Law Society. LT
Strike-off for jailed Five Star director Marcus Macdonald has been struck off after being convicted of criminal charges involving a loss of $50 million. He was one of several directors of the Five Star Finance Group who were jailed after the group collapsed in 2007 leaving investors with millions of dollars in losses. Mr Macdonald pleaded guilty to a disciplinary charge brought before the Lawyers and Conveyancers Disciplinary Tribunal. He was charged that he had been convicted of an offence punishable by imprisonment and the conviction reflected on his fitness to practise or tended to bring the legal profession into disrepute (Lawyers and Conveyancers Act 2006, s241(d)). He faced six charges in the District Court, two against s220 of the Crimes Act 1961, three against s58 of the Securities Act 1978 and one against s41 of the Financial Reporting Act 1993. In December 2010 he was given concurrent sentences totalling two years three months imprisonment. At the hearing, the tribunal recognised that Mr Macdonald had already served a reasonably lengthy term in prison.
The convictions Two of the convictions were for “theft by a person in a special relationship” (Crimes Act, s220). Mr Macdonald had arranged and approved unauthorised related-party loans of more than $50 million out of money secured by debenture stock issued by Five Star Consumer Finance Ltd, knowing the loans breached the company’s obligations under its debenture trust deed. Most of this lending was to entities and people who were associated with the company’s directors. The loans needed prior trustee approval, but the directors had disguised the true nature of the lending to avoid this. Mr Macdonald was also convicted of three charges under the Securities Act, that he had distributed an advertisement and signed a registered prospectus both of which included
L AW YERS COMPL AINTS SERVICE untrue statements. For example, the documents said Five Star Consumer Finance was engaged in small loans to retail customers, omitting that it had also made a significant number of larger commercial loans. Finally, Mr Macdonald was convicted under the Financial Reporting Act of authorising false or misleading financial statements. These had, for example, not disclosed that Five Star Consumer Finance was engaged in related-party transactions and in lending on the basis of inadequate security.
Penalty decision The tribunal noted that the consequences of the offending for the investors had been “horrendous”. The finance company had been placed in receivership in August 2007 owing around $54 million to 2,300 secure debenture investors, although some of this was later recovered.
Registry The following people have applied to the NZLS for certificates or approvals.
Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Auckland Branch BATTS Nathan Thomas Campbell BRODERICK Kirsty Elyse CADDELL Denise Patricia CHEN Amy CHETTY Sheryl Sangeeta CUMMINGS Frances Mary Jess D’CRUZ Glen Errol FINCH Dominica Margaret HALLOWES Christopher Peter HARDER Justin Christopher HEDDITCH Katrina Jane HENLEY Charles Scott Mercer JO Joshua JURGELEIT Beth Ellen KHAN Imran Avinash LEE Kathryn Eun LEUNG Finnegan Meiji MARTIN Michelle Yvonne MISTRY Komal MORAN James Adrian Noel MORAN Alister Michael Joseph NELSON Alwyn Johannes NOH Seok Hoon ORR Frieda Florence PARK Young Jun PUROHIT Urvi QUAH Ee Ling RAVINDRA Smithi Sonali ROSEVEAR Patrick William ROWSELL Katie Elizabeth RUSSELL Tracey Leigh RYU Han Jeong SATHIYASELVAN Mayura SCHWARCZ Jonathan Len SINGH Mandvi Nandita SINGH Namrata Charan SONG Jin Ah WHYTE Fergus
WRIGHT Conrad Greer YAN Dongjun Nelson Branch REEVE Richard Maurice Waikato Bay of Plenty Branch CANNELL Alexandra Elizabeth HOLMES Dee-Anne Marie KERSHAW Gabrielle Sarah MILLS Simon Bruce Whanganui Branch LEWIS Stephanie Ann Wellington Branch ALLAN Michael Deverick ALLAN Philippa Reeves ARATHIMOS Helen Angela Rose BAIN Hannah Maree BARBALICH Rowan Jeffrey BELL Michael John BLEEKER Amelia Judy BOOS Grace Margaret BRADSHAW Charlotte Honora Leeson BRENNAN Samantha Jean BROMLEY Katherine Rose BUIST-CATHERWOOD Emily Aileen BURNS Andrew Lincoln CADE Edward Alister CAMERON Anna Fox CARR Robert Benjamin Crabtree CARROLL Michael David CHAPMAN Nicholas David CHIU Vicky CHOW Deborah Rohani Li Chan CHRISTMAS James Nicholas CHURCHMAN Helen Margaret CONNOLLY Elly-Marie COUP Catherine Marie-Chanel DENGATE-THRUSH Clare Susannah
Striking off was the inevitable consequence, the tribunal said, and Mr Macdonald had consented to this. It noted he had been very cooperative with authorities and he had also surrendered his practising certificate in October 2010. He was declared bankrupt in December 2010. The tribunal ordered Mr Macdonald to pay $1,000 to the Law Society, as a contribution to the Society’s reimbursement of the tribunal’s own costs. He had already agreed to and paid the costs of the Law Society’s investigation and prosecution. LT
Not to be employed The name of a person not to be employed was incorrectly spelled a number of times in an item in LawTalk 796 (25 May 2012). The name should have read Hayley Anne Faulkner (not Haylee Anne Faulker). LT
ELDER Jessica Louise ELLISON Jessica Elizabeth ESPEJO Rachel Ann EVANS Richard Donald FARQUHAR Sarah Elizabeth GRAHAM Steven Paul GRIEVE Andrew Ross HAMILTON Alison Pamela HENDERSON Julia Stephanie HUGHES William Alexander HYETT Fern Elizabeth Parehuia Wooldridge JACOBS Sarah Rose KNIGHT Christopher James KRUMDIECK Kierra Elizabeth KUSEL Natasha Maria LA John Pill LAWTON Zoe LEE Oliver James Benson LESLIE Georgina Claire LESLIE Mark Denny MARTIN Annabel Julia MCDONALD Fiona Claire MCGIMPSEY Edward George MCGRATH Matthew Joseph MCKILLOP Matthew Joshua MCLAUGHLIN Thomas Patrick MILLS April Lillian MILLS-WALLIS Alexandra Maree MOSS Jared Robert NERIS Armando
NORMAN Daniel James OGLETREE Aaron Peron ORSMAN Jessica Jane PARKER Bernard John PATEL Meera Pankaj PATEL Yogesh PAYNE April Christine PEARSE-SMITH Scott William David PONNIAH Nicholas Navinshashi REID Anna Mary RHIND Sophie Grace ROBERTSON Jessica Millen SANDERS Emily Rishworth SHAW Susannah Lei Kan SHIPTON Catherine Erica Margaret SKERTEN Charoltte Alys SMITH Lauren Marie SPELMAN Julia Ruth STEENSON Julia Anne SYGROVE Charlotte Beatrice TAN Christopher Eng Hoe TAPPER Oliver Douglas TEMPLETON Sebastian James THWAITES Fiona Maree VERRY Emma Louise WAHYUDHI Dianny Ambar Ayu Kinanti WILSON Sarah Anne YANG Alice Xiao Nan YOUNG Somali ZADOROZHNAYA Inna Alexandrovna
Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch Lizandra Michelle BAILEY
Wellington Branch Kerry Murray ANDERSON
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 28 June 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
LAWTALK 798 / 22 JUNE 2012
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OVERSEAS Legal aid problems a blot on US justice Nobel laureate to give keynote speech Two recent studies provide good and bad news for the United States legal system, ABA Journal (1 June) reports. The good: The United States’ civil legal system is one of the best in the world, according to the results of the World Justice Project’s Rule of Law Index 2011. And the bad? According to this same study, millions of Americans can’t use this system because they can’t afford it. They have legal rights – to child support, medicare benefits or protection against an improper home foreclosure – but they find these rights meaningless because they can’t enforce them. “The US legal system is similar to its medical system. In many aspects it is the best in the world, but many people don’t get any services at all,” says Juan Carlos Botero, director of the Rule of Law Index project.
The Nobel Prize in Economics Laureate Joseph Stiglitz will deliver the keynote speech at the International Bar Association’s 2012 Annual Conference in Dublin from 30 September to 5 October. Professor Stiglitz, Chief Economist and Senior Vice-President of the World Bank between 1997 and 2000, will address thousands of legal professionals from across the globe at the opening ceremony of the conference. A frequently-cited economist and renowned leading educator in economics, Professor Stiglitz’s remarks will provide the audience with the latest thinking on the most salient topics of the day, including the global economy and the sovereign debt crisis.
A plethora of government and volunteer programmes provide free legal aid, but they are overstretched. “Any local legal aid office will tell you that at least two-thirds of those who walk through their doors aren’t getting help because there aren’t enough resources,” says Ritchey Hollenbaugh, chair of the ABA Standing Committee on the Delivery of Legal Services.
Citizens’ rights consultation
To make matters worse, the system for providing free legal services is a mess. There is “an enormous diversity of programmes and provision models with very little coordination at either the state or the national level,” according to Access Across America, a 2011 report authored by Rebecca Sandefur and Aaron Smyth and funded in large part by the American Bar Foundation.
The consultation, which will run until 9 September, is aimed at all EU citizens. The questionnaire seeks to gather views about the obstacles faced by Europeans in their daily lives, how these could be removed, and how EU citizenship could be further developed.
As a result, the report states, poor individuals’ access to assistance is “characterised by large inequalities both between states and within them”.
Will writer regulation welcomed Plans to regulate will writers in the United Kingdom is “good news” for consumers, the Law Society of England and Wales said on 1 June. The society’s statement followed an announcement by the Legal Services Board (LSB) earlier that day. The LSB announced proposals to bring will writing and estate administration services within the scope of legal services regulation. The proposals would, for the first time, see these services brought within the list of “reserved activities” and all providers will be regulated. The LSB’s investigations found systemic problems with the services delivered by many different types of provider, often resulting in an “unacceptable service” in which consumers “were subjected to unfair sales practices” in addition to “welldocumented examples of fraud and deception.” “We are pleased that the Legal Services Board has listened to our concerns and has identified the risks with regards to using an unregulated and untrained will writer,” Law Society President John Wotton said. “It is good news for consumers that regulation and monitoring will be put in place to protect their interests and those of their beneficiaries and the assets in their estates.”
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The European Commission has begun its largest ever consultation on citizens’ rights, the 31 May issue of Brussels Agenda reports.
This consultation is designed to supplement the European Commission’s 2010 EU Citizenship Report, which summarised the main obstacles which it had found that citizens believe hinder them from fully enjoying their rights, and set out 25 key actions to address them. Responses to the consultation will contribute directly to the commission’s policy agenda and will form the basis for the 2013 EU Citizenship Report. This report will serve as a further action plan for the removal of the remaining obstacles.
Recognise indigenous peoples The Law Council of Australia has called on all Australians to consider the importance of constitutional recognition of Aboriginal and Torres Strait Islander peoples as part of National Reconciliation Week, which ran from 27 May to 3 June. Law Council of Australia President Catherine Gale said that the week was an important celebration of equality, diversity and inclusiveness, yet legal equality for Aboriginal and Torres Strait Islander peoples is not currently protected under the Australian Constitution. “As a nation, all Australians need to consider what reconciliation means to us and how we can affect meaningful change through our actions,” Ms Gale said. The Law Council has been a consistent advocate for constitutional change to recognise Aboriginal and Torres Strait Islander peoples, their cultures, history and languages, and to give substantive effect to that recognition through removal of provisions which allow racial discrimination. LT
Fearon & Co 56x100 ad_BW.qxd:Layout 1
Graeme Jespersen advises that he has acquired the client base of Ed Johnston & Co (excluding those which relate to mortgage lending), effective as of Monday 18 June 2012.
Established 1825
Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations
VISIT OUR WEBSITE www.fearonlaw.com Westminster House, 6 Faraday Road, Guildford, Surrey GU1 1EA, United Kingdom Tel: 00 44 (0)1483 540840 Fax: 00 44 (0)1483 540844 General Email: enquiries@fearonlaw.com
00 44 (0)1483 540843
mw@fearonlaw.com
PROPERTY John Phillips
00 44 (0)1483 540841
ajp@fearonlaw.com
PROBATE
Francesca Nash 00 44 (0)1483 540842
fn@fearonlaw.com
Regulated by the Solicitors Regulation Authority of England and Wales
Page 1
Henderson, Auckland
SOLICITORS
LITIGATION
09:02
JESPERSEN & ASSOCIATES
ENGLISH LAW AGENCY SERVICES
Martin Williams
21/8/09
PRACTICE NOTICE
LEGAL SERVICES
As from this date, Edward E Johnston can be contacted at the offices of Jespersen & Associates, 6 Alderman Drive, PO Box 21 411, Henderson, Auckland 0650.
WILLS
KULDIP SINGH THANDI Would any lawyer holding a will for the above-named, late of Auckland, aged 69, retired, who died on 5 April 2012, born 5 March 1943, please contact Faiyam Khan of Khan & Associates, PO Box 23492, Hunters Corner, Manukau 2155, ph 09 278 9361, email khan.F@khans.co.nz.
ISABELLA MOIRA MELLOR Would any lawyer holding a will for the above-named, previously of Napier, late of Auckland, who died on 1 May 2012 at Auckland, please contact Lynn Kirby of Bisson Moss, ph 06 835 3159 or email lynnkirby@bissonmoss.co.nz.
www.facebook.com /mylawsociety
TO LET
Superior Quality Legal Offices to Rent Devonport, Auckland Stylish, modern legal offices (x2) available to share with two senior legal practitioners in the Old Post Office building. Includes shared reception area, meeting room, storage, kitchenette and bathroom. Would suit either a sole practitioner or barrister. Either $950 per month for larger office or $750 per month for smaller office, includes GST and OPEX. Contact Cushla Webster 021 473 469 or Helen Gilbert 027 663 6678 or visit us at Suite 2 (upstairs), 10 Victoria Road, Devonport.
CHARLES REGINALD WILLIAMS Would any lawyer holding a will for the above-named, late of Aranui Rest Home & Hospital, Auckland, formerly of Eltham, Taranaki, retired, who died on 31 May 2012, please contact Maria, QuinLaw Solicitors, New Plymouth, ph 06 769 9687 or email office@quinlaw. co.nz.
SITUATION VACANT
JENNIE LOUISE SARJEANT Would any lawyer holding a will for the above-named, born on 4 September 1959 and died on 7 May 2012, formerly of Birkdale, office administrator, please contact Gaileen McGivern of Wynyard Wood, PO Box 20 4231, Highbrook, Auckland 2161, ph 09 969 1777, fax 09 309 1044 or email gaileen@wynyardwood.co.nz.
JANTI KHUSAL Would any lawyer holding a will for the above-named, commercial grower, who died at Pukekohe on 18 November, aged 50, please contact Peter Tatham, Franklin Law Limited, DX EP 77029, PO Box 43, Pukekohe 2340, ph 09 237 0226, fax 09 238 7141, petert@franklinlaw.co.nz.
SITUATION VACANT
Intermediate Crown Prosecutor A vacancy has arisen for an Intermediate Crown Prosecutor at O’Donoghue Webber, the office of the Crown Solicitor for Tasman, based in Nelson. We invite applications from lawyers with previous criminal jury trial experience and the ability to immediately commence the conduct of jury trials on behalf of the Crown. This presents a rare opportunity develop your criminal litigation skills as part of a small and supportive Crown team in the sunshine capital of New Zealand. Salary to reflect the experience of the successful applicant to be negotiated. Applications by email to jmw@odw.co.nz or to O’Donoghue Webber, PO Box 1382, Nelson 7040.
We know there aren’t plenty more in the sea. That’s why we have a people-first, success-oriented culture in which talented individuals thrive. Right now, we wish to add two dynamic lawyers to our Christchurch offices. If you have at least 3 years’ experience in property law or multiple disciplines, and are social and ambitious, we’d like to hear from you. An excellent, incentive-based package is on offer. Email your interest to: John Bates, General Manager jrb@saunders.co.nz saunders.co.nz/careers
LAWTALK 798 / 22 JUNE 2012
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Mixed Legal and Commercial Strategy Role
Commercial Solicitor
Do you have 2-5 years’ PQE and want to consolidate your skills in the area of corporate/commercial law? Then consider this role with a boutique firm that is enjoying rapid growth and international success. The core of the role is advising two key clients on corporate governance, joint venture and commercial transactions. You’ll also get involved with advising clients on broader commercial strategy. Ref: CW30483
Corporate Legal is a specialist legal team within Inland Revenue that advises on general legal issues. The Corporate Legal team does not deal with any tax-technical matters. We are looking for a Solicitor (preferably two plus years experience) to advise in the commercial law area. You will work within the existing commercial team, which is comprised of Solicitors of various levels of experience. The role offers exciting, interesting and challenging work. In addition to great legal work, the role also provides for genuine work/ life balance. As a member of the Corporate Legal team you will:
Corporate Commercial and Commercial Property Lawyers Now the scene of a major rebuild offering challenging revolutionary work, a number of leading commercial law firms in Christchurch are recruiting corporate/commercial and commercial property lawyers to meet the demand across these areas of practice.
Wellington Ph: +64 4 499 6161 PO Box 11003 Auckland Ph: +64 9 306 5500 PO Box 105732
The ideal candidates will have between 3 and 10 years’ experience in company law, property including property acquisition, development and financing as well as general commercial matters. Ref: JL30487 For further information in strict confidence, please contact Carla Wellington for ref CW30483 or Jennifer Little for ref JL30487 on (04) 499 6161.
• Assist the procurement team commercial contracts. www.momentum.co.nz
• Advise on a broad range of legal issues of corporate significance. • Manage the provision of advice by external legal providers, where necessary. • Advise internal clients. You will have: • Good relationship management skills enabling you to interact with the business and external counsel. • A thorough understanding of commercial law and a proven ability to accurately assess legal risks and issues. • A current New Zealand practising certificate. For more information please contact Nadine Eales, HR Advisor – Recruitment on 04 890 5612 or email nadine.eales@ird.govt.nz Applicants must have a valid New Zealand Permanent Residency Visa or New Zealand Citizenship and be able to obtain and retain the required security clearance. Applications close on Friday, 29 June 2012 at 5pm.
ird.govt.nz/careers
Partnership opportunities Whether you are seeking a change of firm, returning to private practice after a period of time in-house, coming back from overseas, or stepping up into your first partnership role, we can advise you on the best approach. Our legal recruitment specialists are widely networked and regarded as trusted advisors at all levels within the legal fraternity. We are handling a range of partnership opportunities in Auckland, Wellington and Christchurch, as well as provincial centres nationally. You will ideally have connections to a transferable client base and a strong business case. We also have opportunities where you would take over an existing practice. You will relish having an active part to play in the management of the firm and development of junior authors. With the local economy in a more stable position and with the Christchurch re-build about to take off, now is the time to talk to us about your options and ensure you are positioned for future success. For further information in strict confidence contact Jane Temel, Clare Savali BA LLB or Ben Traynor on 04 471 1423 or Paula Watts, Kathryn Cross BMus LLB or Vanessa Hopkins on 09 377 2248. Phone: +64 4 471 1423 Email: admin@nicherecruitment.co.nz www.nicherecruitment.co.nz