LawTalk Issue 801 by New Zealand Law Society

LAWTALK

3 AUGUST 2012 / 801

FOR THE NZ LEGAL PROFESSION

NEW ZEALAND LAW SOCIETY NZLS EST 1869

SPACE, WATER, ENVIRONMENT & ACC 1.

PAGE 4

S P E CIAL IST AR E A S O F L AW

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

NEW ZEALAND

LAW SOCIETY NZLS EST 1869

INSIDE

THE MAGAZINE

SPECIALIST AREAS OF LAW

“Our plan is to build a customer-focused, 21st century justice system and ministry.”

“An emphasis on rehabilitation and upskilling could get people off the scheme which is one way to reduce numbers on ACC.”

(Ministry of Justice) p. 23

Email scams continue to target New Zealand lawyers

In-house lawyers may receive scale costs award

A recent Microsoft research paper on email scams suggested that Nigerian scammers said they were from Nigeria because they only wanted really gullible people to be taken in by the initial query...

By FRANK NEILL

Leaders in indigenous law are set to speak at the World Indigenous Lawyers’ Conference organised by Te Hunga Rōia Māori o Aotearoa (the Māori Law Society) in Hamilton from 5 to 8 September 2012...

ACC lawyer numbers shrinking

Don’t let ETS become a nightmare

By HANNAH GRANT

The Emissions Trading Scheme (ETS) is here to stay. It brings important legal implications to consider...

Ministry needs ‘significant transformation’

By RACHAEL BRECKON

Although in-house lawyers are not entitled to costs on a scale basis under the High Court Rules...

Indigenous law leaders to speak at conference

p. 8

The Ministry of Justice needs to undergo a “significant transformation” so it can achieve its full potential to capitalise on the opportunities currently present...

There are few legal knights left to take on the ACC bastion...

The common heritage of mankind

The law around New Zealand’s ‘liquid gold’

A ‘hot’ area of practice

By HANNAH GRANT

By FRANK NEILL

For those of us who wanted to be astronauts when we were young, we now have the option to explore space...

As demand for water increases and as competition for this resource becomes more intense...

By FRANK NEILL

Environmental law is one of the more widely practised fields. While some areas of practice have suffered...

REGULARS

People in the law

Effective Practice

From the Courts

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LAWTALK 801 / 3 AUGUST 2012

FROM THE LAW SOCIET Y Pau l Rishworth

embers will be aware that a review of the New Zealand constitution is under way. Entitled Consideration of Constitutional Issues, the review arose out of the confidence and supply agreement made in 2008 between the National Party and the Māori Party. The Constitutional Advisory Panel, appointed by the Government to conduct the review and report to ministers, has now begun a programme of public consultation. It is to meet with the New Zealand Law Society in August to discuss the profession’s involvement in the review process. The Law Society welcomes the opportunity to participate in an informed discussion about the country’s constitutional arrangements.

arrangements.

The review will look at electoral and constitutional issues, including the role of the Treaty of Waitangi in New Zealand’s constitutional

This will include the long-debated issues of whether New Zealand should have a written constitution, the role of the New Zealand Bill of Rights Act 1990 (NZBORA), the length of the parliamentary term, and Māori electoral representation. The Law Society’s focus will be on ensuring a sensible and coherent framework for enduring constitutional arrangements. For this to occur it is important public discourse looks at the “big picture” issues – such as the

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desirable functions of a constitution, whether NZBORA should be entrenched as a supreme law, and the difficulties and realities of constitutional drafting. The legal profession has the experience and expertise to make an important contribution to the constitutional review process. Like the wider community, lawyers will have a range of views on the issues likely to be raised. Initially, the Law Society will undertake a survey of the profession to gauge members’ interest and views. The Law Society will support and encourage members’ involvement by providing information on how to participate in the constitutional review, and information about the constitutional questions raised in the review. The Law Society will also facilitate member debate and discussion through functions and events – members will be informed of these in coming months. Updates will follow in future editions of LawTalk, LawPoints, section and branch newsletters and the Law Society’s websites. I encourage all members to make their views known and to participate in the process. Paul Rishworth Convenor, New Zealand Law Society Law Reform Committee More information about the constitutional review, and the Constitutional Advisory Panel’s programme of public engagement, is available at www.justice.govt.nz/policy/constitutional-law-andhuman-rights/consideration-of-constitutional-issues-1/ consideration-of-constitutional-issues.

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

Coming up … Criminal law congress

Finkelstein QC. See www.nzbar.org.nz/ Event?Action=View&Event_id=129.

The 13th International Criminal Law Congress will be held in New Zealand this year, from 12-16 September in Queenstown.

Risk management

The Shrinking International Criminal Code is the theme of the event, which will feature a challenging programme put together by the organising committee, chaired by Judge David Wilson QC. Among the topics that will be discussed are: •

Do juries routinely access the internet and, if so, how should the law deal with them?

•

What does jury research teach about how juries decide in sexual offence trials?

EDITOR: Frank Neill Ph +64 4 463 2982 editor@lawsociety.org.nz

•

Special intervention courts and the opportunities they provide, led by Australian leader in the field Dr Michael King.

WRITERS: Rachael Breckon Ph +64 4 463 2910 rachael.breckon@lawsociety.org.nz

•

Neuroscience and brain injuries, led by Nick Rushworth of Brain Injuries Australia.

Postal address: DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand

Hannah Grant Ph +64 4 463 2902 hannah.grant@lawsociety.org.nz Advertising: Christine Wilson Ph +64 4 463 2905 christine.wilson@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

Court of Appeal President Justice Mark O’Regan will give the keynote address, and New Zealand Law Society President Jonathan Temm will give a luncheon address. See www.crimlaw2012.com.

NZBA conference The New Zealand Bar Association’s 2012 conference will be held at the Grand Hyatt Hotel, Melbourne, from 24-26 August. The theme of the conference is Leading a Successful Team. The conference will also incorporate the association’s annual general meeting. The keynote speaker will be former Australian Federal Court judge Ray

CLIENTS WITH 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.

ACC DISPUTES? 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

The New Zealand Society for Risk Management Conference 2012 will be held at Te Papa, Wellington on 6 and 7 September. The conference theme is The Courage to Succeed: governance and leadership in uncertain times. See www. risksociety.org.nz.

Dams and resilience A symposium of interest to all involved in water storage and use will be held in Wellington this month. Called Dams and Resilience, the symposium will take place in the Renouf Foyer, Wellington Convention Centre, on 15 August. See www.ipenz. org.nz/nzsold/2012Symposium/ NZSOLD%20Symposium%20 2012%20Flyer.pdf.

Competition conference The 16th annual Competition Conference will be held in Florence, Italy, on 14 and 15 September. The conference will be presented by the IBA Antitrust Committee, supported by the IBA European Regional Forum. Topics that will be covered include: information exchange among competitors – a comparative assessment; antitrust enforcement in CIS states at federal and local levels; recent developments in merger control; damage claims in Europe – next steps; views from those who are shaping competition law – an interview with William Kovacic; and competition in the online space. See www.ibanet. org/Conferences/conferences_ home.aspx. • 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.

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SPACE, WATER, ENVIRONMENT & ACC S P E C I A L IST AR E A S O F L AW

F o u r a r e a s o f s p e c i a lt y In this issue of LawTalk, we look at four distinct practice specialties. They range from the developing area of space law to areas of specialty that have been around for some time now, such as environmental law. In LawTalk 798, we began the series with four disciplines we described as â&#x20AC;&#x153;developing areas of the lawâ&#x20AC;?. All areas of the law are, of course, continuing to develop and there are aspects of all specialties that are not new. In this feature, the emphasis is changing to reflect the increase in specialisation that is happening within the law. The four specialities we feature are: space law, water law, environmental law and ACC.

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SPECIALIST ARE AS OF L AW

The common heritage of mankind By Hannah Grant For those of us who wanted to be astronauts when we were young (I know I’m not alone), we now have the option to explore space without undertaking a decade of training. For a mere gazillion dollars (or some other unfathomable number), we can now lift off out of earth’s atmosphere courtesy of commercial space travel. If you have enough money, you have the right to use space for freedom of exploration because space belongs to no one (a foreign concept for us human beings). But how much are we utilising this unfamiliar resource? And do we have sufficient international legislation in place to regulate this use and the emerging commercial space players? Many people would be surprised to learn how much we already use space for such things as scientific exploration, global security and commercial advantage. Whether it is satellite television, phone satellites, Wi-Fi or military reconnaissance and surveillance, numerous states and commercial enterprises have stakes in space. It’s very difficult to regulate what’s going on in space but as we are directly using space assets, there are international policies and laws put in place to offer both protection of resource and regulation of utilisation of the great unknown. Space law encompasses international law governing activities in outer space. In 1957, the Russians launched Sputnik 1, the world’s first artificial satellite. This was the inception of the field of space law and since then it has evolved and assumed greater prominence as mankind has increasingly come to rely on space-based resources. Maria Pozza, international space law and policy expert, is nearing the end of her PhD in space law. She says that the development of any international law is a long process. “It takes a long time for international law to develop as you need states to negotiate with each other. Drafting, signing and ratifying treaties is a complex process, especially once questions of definition and interpretation arise. In this respect, international space law will always struggle to keep up with advances in

technology,” she says. Ms Pozza’s PhD research looks at the lack of definitions in the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (or the “Outer Space Treaty” for short). For example, the Outer Space Treaty states that space exploration must be for peaceful purposes, yet Ms Pozza says there is no definition of what constitutes peaceful.

“

international space law will always struggle to keep up with advances in technology.

”

Maria Pozza “International law says that space exploration must be for peaceful purposes. Yet there are many military satellites and other assets which function or relay information that can be used for aggressive purposes. “I look at the Outer Space treaty 1967 from an arms control perspective. This treaty represents a sound foundation but subsequent development of the treaty has not eventuated. Its major shortcomings relate to a lack of definitions and inconsistency in interpretation by various states. As a result it does not provide the guidance that is necessary for new and emerging space-faring states.” “We have things like the 2008 European Code of Conduct, which is essentially rules of the road for how we should be using space. It’s a soft piece of international law but this is probably how international law governing space will develop as the treaty process takes far too long,” she says.

Basically, to use space for any purpose, you are going to need enough money to develop the technology, hire a space lawyer and comply with United Nations instruments and registrations. But how we use space has changed dramatically over the last 50 years. Increasing satellite technology and the birth of commercial space travel are leaving current space law in their wake. “One of my big interests that stems from my research is the emergence and dominance of international commercial space law. Space X, for example, has been enormously successful. Suddenly we have a commercial non-state player who’s taking on the role of the state in delivering supplies to the international space station.” Ms Pozza has an area of special interest in international space law investment. “International space law concerning financial interests of third parties involved in space assets is an area which is undergoing rapid development,” she says. Arguably the resources of space are infinite, but in terms of the geostationary orbit, this is not the case. The geostationary orbit follows the direction of the Earth’s rotation and is the most sought after orbit for satellites. So high is demand that there is now not much room left and it’s viewed as a scarce resource. “The question of resource utilisation as it pertains to orbits geostationary or otherwise, is a point of contention. As space becomes more crowded, conflicts between states over such resource ownership will tend to increase. Such considerations regarding space assets present an obvious conflict with the notion of non-ownership of space.” In order to keep up with technology, the laws regulating space exploration and utilisation will need to keep on their toes. This is an era of rapid change and development and there is much debate about commercial development and human settlement of outer space. There is also talk about whether space should continue to be legally defined as part of the “common heritage of man,” and therefore unavailable for national claims, or whether its legal definition should be changed to allow private commercial property in space. LT

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SPECIALIST ARE AS OF L AW

The law around New Zealand’s ‘liquid gold’ By Frank Neill As demand for water increases and as competition for this resource becomes more intense, so the importance of the law pertaining to water is rising too. “We can’t go past our abundance of water or New Zealand’s ‘liquid gold’,” Minister for Primary Industries David Carter said as recently as 28 June. “Water is possibly the biggest opportunity to grow the productive part of our economy,” he continued, in his speech to Federated Farmers’ national conference. Unsurprisingly, water law is a major issue currently in New Zealand, as it is around the world. “It is definitely a specialist area in its own right,” says Wellington resource management specialist Philip Milne. “Water law is part of natural resource management law, which comprises areas such as water law, coastal law, marine farming, land management law and air quality – anything to do with land, water and air.”

water, Mr Milne says. On the question of management, the major areas are the allocation of what is, in some parts of the country at least, a scarce resource. That includes allocation of both surface water and ground water, and managing the quality of both resources as well as coastal water quality. Mr Milne gives the examples of the Waimakariri and Rakaia Rivers.

“

As demand for water begins to exceed the sustainable supply, competition for water is becoming intense.

”

It combines elements of both environmental and property law. At the same time, Mr Milne says, a lot of it isn’t just about law.

JACINTA RURU

“Law is but a component. You cannot understand resource law without a basic grounding in science and, in particular, ecology. It is mainly about ecology and management. Water issues comprise a triangle. One side is ecology, another side is management and the third side is law.

“These catchments, including ground water, are at or near the point of full allocation as are many other East Coast water resources. The rivers are pretty much allocated, apart from the higher flows. Natural or artificial storage of these higher flows will be a key to utilisation to use of higher flows.”

“You can’t be involved in arguing for an applicant or making a decision as an independent commissioner in adjudication without understanding the science and the management as well as the law.

The proposed Central Plains Irrigation scheme which has recently been consented (subject to appeals) is an example of the a move to utilise higher flows. Trust Power has also applied to vary the Rakaia Water Conservation Order for the same reason.

“In fact, to be a specialist in water law, you also have to have a science background now. A large proportion of what I do is not law. It is common sense and weaving the facts into the law and understanding science. You need at least an interest in science, and preferably a qualification in that area.” One of the big issues in the area at the moment relates to the management of

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Another major area is water quality. Pollutants, including nutrients such as nitrates and phosphates in water, give rise to public health issues, ecological issues, aesthetic issues and reputational issues for New Zealand. That includes New Zealand’s clean, green image, and its recreational values and resources: in trout fishing, for example.

“Water is essential for the welfare of people, plants, livestock, farming activities, industry and power generation,” says Otago University academic Jacinta Ruru. Co-director of the Otago University Research Cluster for Natural Resources Law, Ms Ruru’s research focuses on exploring indigenous peoples’ legal rights to own, manage and govern land and water and she organised the 2009 Indigenous Legal Water Forum. “The new National Policy for Freshwater 2011 describes water as an essential resource for New Zealand’s economic, environmental, cultural and social well-being. The Resource Management Act 1991 (RMA) requires that water be safeguarded for its lifesupporting capacity.” The RMA provides the rules for managing land, air and water. The general rule for water is that if the proposed activity – which might be to take, use, dam or divert water – is not expressly permitted in a regional plan, then a resource consent is required. “As demand for water begins to exceed the sustainable supply, competition for water is becoming intense,” Ms Ruru says. “Key legal issues arise from these new realities, including what are the nature and content of these resource consents to take water, should those first in time with their resource consents have priority over other subsequent possible users and are these resource consents, in effect, property rights despite s122 of the RMA stating that resource consents are neither real nor personal property?” One commentator who argues that resource consents have characteristics of property rights is North South Environmental Law director Robert Makgill. “In simple terms, a water permit confers a right to take, use, dam and/or divert water subject to the availability of water,” Mr Makgill states in a paper entitled A New Start for Fresh Water: Allocation and Property Rights (see www.nsenvironmentallaw.com/ resources/A_New_Start_for_ Fresh_Water_Allocation_and_

SPECIALIST ARE AS OF L AW Property_Rights.pdf) It does not constitute ownership of the resource. “Nevertheless, when we consider the nature of resource consents that confer rights of allocation and use under the RMA, we find a number of characteristics that we would otherwise identify as belonging to the bundle of private property rights including (amongst others) the right to possess, use and transfer. “The ‘right to possess’ is the right under which one may exercise control over something to the exclusion of all others,” he says. “In Aoraki Water Trust v Meridian Energy Limited ([2005] 2 NZLR 268 (HC)), Aoraki sought a declaration that water permits, held by Meridian entitling it to the full allocation of water from Lake Tekapo, did not operate as a legal constraint on the ability of the regional council to grant others consents to the same water under the RMA. “However, the High Court held that where a resource is already fully allo cated in a physical sense to a permit holder, a consent authority cannot lawfully grant another party a permit to use the same resource unless specifically empowered by the RMA. “The court found that Aoraki’s argument overlooked the fact that a water permit confers a right to use the subject resource. Indeed the fact that Meridian’s consents were of considerable value was seen as explicable only on the basis that such value derives from the holder’s right to use the property in accordance with its permit. It followed that granting a permit to Aoraki would reduce Meridian’s ability to make full use of the water thereby devaluing its grant.

Aoraki consent to the water ‘would either frustrate or destroy the purpose for which Meridian’s permits were granted’ [at 280].” Cases since Aoraki have further developed this area of law, Mr Milne notes, “and I’m sure that it’s not the end of the matter by any means.” One of the “big issues” New Zealand is currently facing is around the Treaty issues relating to water, he says.

“The court held [at 279] that: ‘The principle of non-derogation from grant is applicable to all legal relationships which confer a right in property’.

“It is an issue that has been politically acute for a decade now but is one that has been real for Māori for more than 100 years,” Ms Ruru says.

“The court held that the principle of non-derogation is based on an implied obligation on a grantor not to act in such a way as to injure property rights granted by the grantor to the grantee. It considered that Meridian must have assumed that the council would not take any steps during the term of the consents to interfere with, erode or destroy the valuable economic right which the grants had created. Granting

“A 2009 New Start for Fresh Water Cabinet paper accepts that ‘the rights and interests of Māori in New Zealand’s freshwater resources remain undefined and unresolved, which is both a challenge and an opportunity in developing [a] new water management and allocation model’. “The government-commissioned Land and Water Forum report of 2010 accepts that ‘Water is a taonga

which is central to Māori life [and] … fundamental to iwi identity’. “There have been notable legal solutions, mostly concerning the milestone Treaty of Waitangi claim settlements with several iwi for the comanagement of the Waikato River. “But it is the wider issue of who owns water that is currently in the news. This is because the Waitangi Tribunal is presently hearing an urgent claim brought by the New Zealand Māori Council that the Government should suspend its planned partial sale of water dependent state-owned enterprise electricity companies until the legal issue of who owns water is clarified,” Ms Ruru said on 18 July. “Some iwi argue that they do in accordance with the Treaty of Waitangi. If the case goes to the High Court then the issue will become whether the common law doctrine of native title that potentially recognises Māori customary title to water trumps the common law doctrine that water cannot be owned.” LT

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SPECIALIST ARE AS OF L AW

ACC lawyer numbers shrinking By Hannah Grant There are few legal knights left to take on the ACC bastion. Personal injury litigation was once a leading practice area until ACC came along and dwindled dollars in the field. Legal specialists have deserted what was a practice stronghold in droves, leaving only the passionate to fight for compensation for the vulnerable. ACC lawyer John Miller, for example, is sometimes paid in only soap or honey. He isn’t playing for the riches but declares he would forfeit the game entirely if he wasn’t also a social worker by trade. Among his achievements, Mr Miller won a case for parents who looked after their brain damaged children full-time but only received 35 hours’ compensation a week instead of 24 hours day, which they were entitled to. A successful High Court challenge resulted in 300 families receiving a payout from ACC to the tune of $216 million. He was also instrumental in extending the law around medical misadventure. That came in a case where a mother died from contracting Aids from a blood transfusion and then passed it on to the father who also died. ACC said the mother could claim for medical misadventure but they wouldn’t cover the father. Mr Miller won compensation for the children in relation to both parents (important because the father was the main income earner). “ACC law is a combination of very sad cases which you can’t say no to, huge amounts of paper work and the complex situation of ACC law with five different acts to navigate through. “In every case there is always an argument. My wife always asks me why I work so hard, but if you can use your legal skills to assist people then there is immense satisfaction,” Mr Miller says. Mr Miller has been involved in personal injury litigation since before ACC was established and even helped set up the commission. He has seen five separate acts make their way into ACC law, all with complex transition

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provisions.

often costly and unaffordable for many.

“ACC law is as complicated as tax law, which has made it difficult for non-specialists to get into. People don’t often stay in it, either, because it doesn’t have huge amounts of financial rewards, as a lot of the people you deal with have absolutely no money. There are only five specialist practitioners left in this area and we are the only ones who really do legal aid now.”

But under ACC, many people of low socio-economic means still find it hard to prove that they are not fit to go back to work as they often cannot afford a specialist to provide medical evidence.

On a general basis, Mr Miller is in favour of the ACC scheme as the solution to personal injury claims, but he says the scheme gets “mangled by politicians”.

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An emphasis on rehabilitation and upskilling could get people off the scheme which is one way to reduce numbers on ACC.

”

JOHN MILLER “Although politicians cry poor, ACC has a lot of money that could be invested. I think there has to be a real commitment to rehabilitation. We could be having the best rehabilitation services in the world for injured people. Germany has great rehabilitation services which we could have too. We only have 4.4 million people. “An emphasis on rehabilitation and upskilling could get people off the scheme which is one way to reduce numbers on ACC.” The ACC scheme replaced suing for personal injury damages, which was

David Sparks, senior solicitor at Baywide Community Law Service in the Bay of Plenty, says that for the most part ACC works well, but this is one of the flaws of the system. “ACC will usually say that claimants are fit for work of various types in some capacity. People can’t contest this with contrary medical evidence when they can’t afford to go to a specialist. Often ACC is not very helpful in agreeing to fund additional reports which means that some people miss out. “I think there should be more flexibility in the system so that if a person does feel that they have a genuine case, supported by their GP, to challenge ACC specialists there should some funding available from ACC in the interest of justice, if nothing else, to get another opinion,” he says. Mr Sparks says that ACC law is a developing area, but the demand exceeds the supply. He says that community law centres bear the brunt of the work. To see if a person is fit to return to work, ACC claimants are currently assessed for skills, any skills, even if they are not in their training or experience area. “In doing so, ACC will say ‘we know you were a high flying executive but we are going to say you are rehabilitated because you have still got skills like being a car park attendant or working in a shop so we are going to cut off your payments after three months’,” says Mr Miller. “They tend look at low-level skills rather upskilling into other areas. We need skilled people in New Zealand. Things like this cut across the Woodhouse principles of ‘real compensation’.” LT

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A ‘hot’ area of practice By Frank Neill Environmental law is one of the more widely practised fields. While some areas of practice have suffered in the wake of the global economic crisis, environmental law has moved in the opposite direction. It is thriving.

lot broader than that.” Some of the key practice areas are:

American scribe Stewart Wrighter specialises, among other things, in writing about legal matters.

• coastal and marine resources;

In an article entitled Top 5 Law Practice Areas, he names environmental law as number two. Civil litigation tops the list and the other three are labour and employment law, intellectual property law and e-discovery practice. Mr Wrighter is not alone in naming environmental law among the top specialties. Sally Kane, writing for New York Times website About.com, has also named environmental law in her top picks. An attorney, editor and writer specialising in legal, career and business topics, Ms Kane listed environmental law as number two in her “seven hot law practice areas”. Environmental law “is one of the big practice areas in terms of specialisation,” says New Zealand Law Society Environmental Law Committee member Robert Makgill. “It is quite a pervasive area of law.” It is also a very exciting practice to be in, because it covers so many areas, he says. Environmental law is the complex and interlocking body of treaties, conventions, statutes, regulations and common law (and, in New Zealand, regional council objectives and policies) involving people’s interaction with the natural environment. “It touches just about everything we do. “It is the law of the physical, social and economic world,” Mr Makgill says. One of the things that makes the discipline so exciting is that it is about working with the physical environment, so you see in a physical sense the law in practice. “When we are talking environmental law, most people think ‘RMA’ [Resource Management Act] but it is a

• natural resources; • property and infrastructure development; • water use; • minerals and petroleum and mining development; • prosecutions and enforcement; • emissions trading; and • education.” And these are only a few of the main practice areas. A lawyer advising a client on due diligence in a merger or acquisition may need specialist environmental legal advice in respect to environmental liability, Mr Makgill explains. Similarly, a lawyer advising a client on property that may have been deforested would need to establish the status of the land in terms of the Emissions Trading Scheme as part of any due diligence process applied before any sale and purchase agreement is entered into. Among the big trends at the moment are minerals and petroleum exploration in our deep sea environment, emissions trading, water rights and spatial planning, which is describing in a spatial sense what one can and cannot do. Then there are a series of acts of parliament, each with their particular focus. Under the Resource Management Act 1991, for example, it is sustainable management of the use, development and protection of natural and physical resources, the use of resources and managing their effects on the environment. Under the Crown Minerals Act 1991, it is the allocation of minerals and petroleum. Under the Conservation Act 1987, it is about protecting areas of high importance from a natural and historic viewpoint.

Under Exclusive Economic Zone (EEZ) legislation, it is about controlling environmental impacts and the effects of activities in New Zealand’s EEZ (from 12 to 200 nautical miles). Under the Fisheries Act 1996, it is about the sustainable utilisation and management of New Zealand’s fish resources. The list could go on. Just a couple of pieces of legislation that also come under environmental law are the Marine Mammals Protection Act 1978 and the Wildlife Act 1953. More and more, it is not just our domestic legislation that needs to be considered. “International environmental law is playing much more of a role in decisions about domestic legislation now,” Mr Makgill says. “Environmental law is a very broad area,” he says. “It is huge.” He speaks of the increasingly sophisticated laws that seek to manage our environment. “Given the state of our environment and the demand on its resources, those laws will only become more pervasive.” Given that it is the law of the physical, social and economic world, what attributes are needed to become effective as an environment law practitioner. One key aspect that emerges is the need to have a well-rounded education and interests. It is an area that involves science. It is an area that involves economics. It is an area that involves planning and architecture. And this lists just some of the areas involved in the practice. Time after time, it will be important to gain a high level understanding of an area of science, or economics, or planning or architecture. Often, the science or the economics or some other key area will be quite complicated, and the environment lawyer will need to get a high-level understanding of that material, perhaps a higher level than, say, the PhD scientists also involved in the matter. LT

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PEOPLE IN THE L AW

PEOPLE IN THE LAW ON THE MOVE DLA Phillips Fox has appointed resource management lawyer Kerry Anderson a partner. Kerry is part of the resource management team in Wellington and has been with the firm since 1999. She was described by Chambers Asia-Pacific 2011 as follows. “Kerry Anderson has carved a significant profile in resource management and local government law, advising both public authorities and private clients.” Debbie Reid has rejoined Buddle Findlay’s Auckland office as a senior solicitor in the banking and finance team. Debbie specialises in syndicated lending, project finance and debt restructuring. Debbie recently returned to New Zealand after five years working for an international law firm in London and Abu Dhabi. Gemma Mayes has joined Vulcan Building Chambers as a barrister sole, specialising in employment law and corporate immigration advice. Before moving to the bar, Gemma was a senior solicitor in Buddle Findlay’s Auckland employment team. Sarah Pilcher has joined Davenports Harbour Lawyers as a consultant in the franchising and intellectual property team.

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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.

PEOPLE Auckland lawyer Michael Heron has been appointed Solicitor-General. He has been appointed for a five-year term, beginning on 3 September. Most recently, Mr Heron was a partner at Russell McVeagh having been in that role since 2007. From 1995 to 2007, he was a lawyer and partner at Meredith Connell where he gained extensive court and advocacy experience, including as a Crown prosecutor. He has appeared in court at every level, from the District and High Courts, to the Court of Appeal and the Supreme Court. From 1991 to 1994 he was a solicitor at Allen and Overy, in London and Tokyo. Mr Heron is the chair of Drug Free Sport New Zealand and a member of the Council of the Auckland branch of the New Zealand Law Society. He succeeds Dr David Collins QC, who was appointed a Judge of the High Court on 16 March 2012. Former New Zealand Law Society Executive Director Alan Ritchie has been appointed as a panel convenor under s111 of the Parole Act 2002. Mr Ritchie, who has been a member of the Parole Board since 2008, is also the Deputy Judicial Conduct Commissioner and a consultant to the New Zealand Law Society.

Judge Heemi Taumaunu has been appointed a Judge of the Court Martial. Judge Taumaunu was sworn in at Auckland on 21 June and his appointment was announced by Attorney-General Christopher Finlayson on 18 July. Judge Taumaunu is of Ngāti Porou and Ngai Tahu descent. He was appointed to the District Court bench in 2004. He holds warrants for the general, jury and youth jurisdictions and also sits in Rangatahi Courts regularly. He is a resident judge of the Waitakere District Court. Judge Taumaunu previously worked in Gisborne as a barrister and solicitor and focused on criminal, Family Court and Youth Court work. Before he became a lawyer, Judge Taumaunu was a Webb Class Regular Force Cadet (Waiouru) and from 1985-1988 he was a Lance Corporal in the RNZ Signals Corp. Three lawyers have been newly appointed to the Copyright Tribunal. Professor Graeme Austin, Jane Glover and Warwick Smith have been appointed for a term of one year from 1 August. Professor Austin is a professor of law at Victoria University and a barrister. He has extensive experience in intellectual property law, both in private practice and academia. Ms Glover practises intellectual property litigation and general commercial litigation. She has assisted with writing a number of decisions pursuant to the World Intellectual Property Organisation uniform domain name dispute resolution policy. Mr Smith is a barrister sole and arbitrator. He holds an appointment from the World Intellectual Property Organisation as an international domain name panellist. LT

EFFECTIVE PRACTICE AdWords: Has your firm used it? In this issue, Effective Practice begins a series of short items about promotional opportunities and methods available to New Zealand law practices. These are intended to provide information which may be of use to the effective promotion of legal services, and does not constitute an endorsement by the New Zealand Law Society. Pop phrases such as “New Zealand lawyer” or “family lawyer” into Google and when the search results appear, look at the right-hand side of the screen and the bit with orange shading at the top (also known as the “sponsored links section”). These are all paid advertisements using Google AdWords. It’s a simple concept: someone is looking for information on a particular subject and there are people who are selling services related to that subject. Sitting in the middle, Google has established a huge revenue stream by connecting them. A quick survey of AdWords usage shows that relatively few New Zealand law firms appear to be using what is a very cost-effective way of promoting their specialities or even availability. Where Google AdWords differs from the old traditional yearly listing in Yellow Pages or some other directory is in the method of payment. Like a commission arrangement, payment is driven by results rather than a single fixed fee. The user of AdWords first needs to decide on which keywords they want their listing to show up on. A lawyer specialising in traffic cases might decide on “traffic”, “traffic offences”, “drunk driving”, “breath test” etc. The trick is to anticipate how someone who needs legal assistance in a driving matter will look for that assistance. A short (with a maximum word limit) message is also needed, to entice people to the advertiser’s website. “Need a family lawyer? Expert advice” with a firm’s website address is an example of a typical message. After the keywords and message are chosen, the advertiser needs to set a “CPC” rate (“cost per click”).

This is at the heart of the AdWords system. Every time someone clicks on an AdWords link, the advertiser is charged. However, instead of Google setting the rate, the advertiser sets the rate. The higher the bid, the more likely the advertisement is to appear higher on the Google results page. The CPC can be set as low as 1 cent. Like any competitive system, experiment is needed to work out the best rates. Paying top dollar will not guarantee a top listing, as Google also ranks advertisements on click through rate.

Email scams continue to target New Zealand lawyers

Because AdWords has relatively few participants in the New Zealand legal industry, CPC rates of well under a dollar will probably be sufficient to secure good visibility.

Nigerian scammers have been found to be behind some of the scams which specifically target lawyers (one was extradited to the United States a year ago), but most never mention Nigeria. China and Japan are popular residences for the lawyer scammers. Lawyer scammers also pose more plausible scenarios, presenting fact situations which occur in daily legal practice. Over the last few months a number of scams have hit the inboxes of many New Zealand lawyers. Details of some of these are reproduced (along with the inevitable bad spelling and interesting use of English). Further information is available from the Law Society’s section on my.lawsociety (http://my.lawsociety.org.nz/ in_practice/practice_management/ email_scam_information). Note that in a couple of instances the scammer is pretending to be a genuine, unsuspecting individual.

Setting up an AdWords campaign is simple. Half an hour of time, a credit card, and some thought about the inquiries you want to attract. Adjustments to the rates, keywords and other features of a campaign can be done at any time or frequency. Of course you need a website to maximise the opportunity. However, if you haven’t got one, there are any number of people eager to offer a competitive quote to set one up. How to get to Google Adwords? Go to Google and type in “Google Adwords”.

A recent Microsoft research paper on email scams suggested that Nigerian scammers said they were from Nigeria because they only wanted really gullible people to be taken in by the initial query. Running a scam takes a lot of time, Microsoft said, and if they can get rid of anyone who might have doubts, scammers can spend their time more productively and avoid time-expensive dead ends.

Subject: COLLECTION SERVICE NEEDED Attention Sir, I am sending you this email through the internet with reservations, basically because you may perceive my intentions wrongly. The issue I want to unravel to you is a very classified and sensitive one. I need a commercial litigation lawyer to handle a collection matter; I will also need a referral if this is not your line of practice. Thank you as I look forward to your response soonest. Sincerely, Mr Yong Huang.

LAWTALK 801 / 3 AUGUST 2012

EFFECTIVE PR ACTICE Subject: POTENTIAL LEGAL CLAIM My name is Dr. Richard Abramovic and I provided a client of mine Mr Robert Garcia a business loan in the amount of $394,000. He needed this loan to buy some equipment for his business in 2009. He is based in yourJurisdiction. The loan was for 24 months and interest rate of 8.75%.The capital and interest were supposed to be paid on December 15th 2011 but Mr. Garcia has only paid $91,100. Please let me know if this fall within the scope of your practice so that I can provide you with the loan documents and answer any other questions you may have. Dr. Richard Abramovic Subject: DEBT RECOVERY Good day, I am David Buxbaum Esq Attorney at Anderson & Anderson Law Firm here in China I urgently have a collection matter for you in your jurisdiction reply me to discuses this further because of the time difference between China and New Zealand we prefer communication via email. waiting to here from you. Regards, David C. Buxbaum Subject: PROPERTY PURCHASE Hello, I am looking to buy a property in New Zealand and would be glad if you can assist me in acquiring it. Please get back to me as soon as possible because i have already finalized with the sellers but i need a solicitor to act on my behalf and also make payment on my behalf. My best regards, Adams Cavendish. Subject: UNEXPECTED TRIP!!! Hello, I’m writing this with tears in my eyes, my family and I came down here to Manila Philippines for a short trip, unfortunately we got mugged at the park of the hotel where we stayed, all cash, credit card and cell were stolen off us but luckily for us we still have our passports with us. We’ve been to the embassy and the Police here but they’re not helping issues at all and our flight leaves in few hours from now but we’re having problems settling the hotel bills and the hotel manager won’t let us leave until we settle the bills, I’m freaked out at the moment and i need your help.. [This scam involves a hacked xtra email account, and appears to come from a New Zealand lawyer. It is sent to all their contacts].

OPERATIONS MANAGER – LEGAL Hesketh Henry is a law firm built on the foundations of developing long term relationships with clients, understanding their business needs and working with them to achieve their objectives. This requires not only the depth of technical and practical legal expertise the firm already has but also an operational infrastructure that meets the needs of a client service and outcomes focused law firm.

The successful candidate will be able to demonstrate: UÊ- } wV> ÌÊ > >}i i ÌÊiÝ«iÀ i ViÊvÀ ÊÜ Ì ÊÌ iÊ«À viÃÃ > ÊÃiÀÛ ViÃÊ `ÕÃÌÀÞÊ UÊ*À Ûi ÊÃÕVViÃÃÊ ÊiÃÌ>L Ã }ÊLiÃÌÊ«À>VÌ ViÊ« V iÃÊ> `ÊÃÞÃÌi Ã UÊ Ê > `ÃÊ Ê>««À >V ÊÌ Ê i>ìÀÃ « UÊ- Õ `ÊÀi >Ì Ã «ÊLÕ ` }Ê> `ÊÃÌ> i ìÀÊ > >}i i ÌÊÃ Ã UÊ ÊÃ `ÊÕ ìÀÃÌ> ` }Ê vÊLÕÃ iÃÃÊw > V > Ã UÊ ÝVi«Ì > Ê «iÀ>Ì > Ê > >}i i ÌÊÃ Ã

The firm is looking for a new operations manager to assume responsibility for the ongoing development, maintenance and leadership of its business support services team.

In return Hesketh Henry will offer you: UÊ ÊV «iÌ Ì ÛiÊL>ÃiÊÃ> >ÀÞ UÊ ÊV>ÀÊ«>À UÊ À> `Ê iÜÊ«Ài ÃiÃÊ qÊÀi V>Ì }ÊÌ Ê«À iÊÜ>ÌiÀvÀ ÌÊ«Ài ÃiÃÊ ÊÌ iÊ*7 ÊLÕ ` }Ê Êi>À ÞÊÓä£Î UÊ ÃVÀiÌ >ÀÞÊL ÕÃ

The preferred candidate will be responsible for effective management and delivery across the firm’s operations, human resource, technology and finance teams. The appointee will also have an opportunity to actively participate in the firm’s move to new premises which represents the start of a new and exciting phase of the firm’s life.

LAWTALK 801 / 3 AUGUST 2012

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Indigenous law leaders to speak at conference By Rachael Breckon Leaders in indigenous law are set to speak at the World Indigenous Lawyers’ Conference organised by Te Hunga Rōia Māori o Aotearoa (the Māori Law Society) in Hamilton from 5 to 8 September 2012. LawTalk reporter Rachael Breckon interviews four speakers who are sure to be among the highlights of this year’s conference.

“Indigenous peoples throughout the world have the opportunity to voice their perspectives on critically important issues involving our lands, waters and cultural heritage. “The current era is remarkable because indigenous peoples from all over the world have the opportunity to learn and share ideas about what self determination is and how it can be strengthened in the future.” But there are still issues to be faced by indigenous lawyers worldwide. The difficult question of how to advocate for indigenous self determination within the domestic political, legal and economic structures that provide the framework for indigenous rights within the respective nation states is one that Ms Tsosie intends to discuss at the WILC. Ms Tsosie, whose trip has been funded by the New Zealand Law Foundation, says it is sometimes challenging to represent the interests of the traditional leaders, including elders and cultural practitioners, given the fact that they are sometimes not the political leaders of the native nation.

Rebecca Tsosie (Yaqui) When Rebecca Tsosie graduated from law school in 1990, she never imagined that she would have the experience of speaking at a World Indigenous Lawyers’ Conference (WILC). She knew very few indigenous attorneys or legal scholars and the conservative legal communities that surrounded her meant it was very difficult to discuss indigenous legal issues. Since then, “the entire world has shifted,” says Ms Tsosie, who teaches Indian law, property, bioethics, and critical race theory, as well as international indigenous rights. Ms Tsosie has also written and published widely on doctrinal and theoretical issues related to tribal sovereignty, environmental policy and cultural rights. “The focus in 1990 was at the national level. However, in the year 2012, we must participate in global economies and legal systems,” she says.

In the United States, indigenous nations are under pressure to incorporate themselves within larger social and economic frameworks, she says. “In some cases, the pressure for economic development can jeopardise the cultural ways of life of those tribal members who continue to live in a traditional way on the land,” she says. “If one argues against a particular form of tribal economic development in order to favor customary law, this may be seen as adverse to the tribal government’s sovereignty. “So, in this case, I think it is necessary to differentiate political sovereignty from cultural sovereignty, and to speak honestly about the way that governance works within indigenous communities. “This requires the ability of an indigenous lawyer to be respectful of both forms of sovereignty and both sets of leaders, but that is a difficult thing to do when one must take a position as an advocate.”

Paul Chartrand Lawyers should consider they have a duty to provide assistance and information to indigenous brothers and sisters in the developing world, Professor Paul Chartrand says. Semi-retired law professor and the current Director of the Aboriginal Governance Program, University of Winnipeg, Professor Chartrand is set to embark on a journey to the World Indigenous Lawyers’ Conference to discuss issues of being an indigenous lawyer. In Canada in the 1960s and 1970s, Professor Chartrand was the only indigenous student at his university. He has witnessed the growth in the global indigenous law movement during his career, one that has included numerous teaching and academic appointments at universities in Australia, Canada, New Zealand, and the United States. Professor Chartrand, whose trip to the conference has been funded by the New Zealand Law Foundation, sees the role of the legal profession as being to assist and advise political actors. “We know that political action leads to the recognition of legal rights,” he says. “Legal rights don’t come out of the blue, out of the air. They are a result of political action. People identify their preferred interests – they insist on them – and in time the law comes to

LAWTALK 801 / 3 AUGUST 2012

give them recognition.”

says.

Political recognition is more important than legal recognition, he says.

“Tribal courts, village courts, and the like, are an English colonial model of conquest and control. I have to admit, in all candour, that the courts I was associated with throughout my legal career originated as the courts of the conqueror.

Professor Chartrand says he looks forward to the conference and has met legal practitioners and judges in New Zealand who have done “tremendous work and in many ways have been ground breakers.” “I think that New Zealand indigenous people have contributed significantly to the profession and to the advancement of indigenous rights,” he says.

“Yet, we made them legitimate institutions and they are at the center of nation building for our indigenous communities. I will discuss the resolution of the seeming conflict in my experience.”

“

Justice Robert Yazzie Retired Chief Justice Emeritus of the Navajo Nation, Justice Robert Yazzie, will bring 21 years’ experience as an indigenous adjudicator to the WILC. Justice Yazzie, whose trip to the conference is funded by the New Zealand Law Foundation, was the Chief Justice of the Navajo Nation from 1992 to 2003. He practised law in the Navajo nation for 16 years, and was a district judge for eight years. Justice Yazzie has devoted his career to education in formal participation in faculties, lectures and discussions of traditional indigenous law at various venues throughout the world. At the conference he will speak about whether western adjudication models are relevant to indigenous success and development. “I certainly do not subscribe to western notions of development, as I do not agree with its ideas of civilisation,” he

LAWTALK 801 / 3 AUGUST 2012

The current era is remarkable because indigenous peoples from all over the world have the opportunity to learn and share ideas about what self determination is and how it can be strengthened in the future.

”

Rebecca Tsosie World Indigenous Lawyers’ Conference registrations still open The WILC is open to members of Te Hunga Rōia Māori o Aotearoa, indigenous lawyers and law students as well as non-members. New Zealand non-members wishing to register must seek approval from the executive when submitting their registrations. For the conference programme and to register go to www. maorilawsociety.co.nz/ world-indigenous-lawyers-conference-2012.cfm.

Gina Rangi Respect for what the owners want and working out the way to make that happen is the key to giving iwi good legal advice, says deputy chair of Tuaropaki Trust Gina Rangi. Ms Rangi (Tūwharetoa, Raukawa) will draw on her legal experience and her current role as a private consultant to iwi on the Treaty of Waitangi and resource management at the WILC. Ms Rangi is also a director of the Tuaropaki Power Company and a member of the Kawerau Peer Review Panel, which advises Bay of Plenty Regional Council on the Kawerau geothermal field. The Tūwharetoa Māori Trust Board has appointed her to its Te Awa o Waikato advisory Group. Ms Rangi will speak about a range of commercial and structural issues that come with advising iwi. One hurdle that lawyers need to consider is working out how to raise capital without putting land ownership at risk. “Finding creative ways to structure a project to reflect [iwi] concerns [is] critical to getting consent from owners for things to proceed,” Ms Rangi says. Ms Rangi explains this concept with reference to geothermal power projects such as Tuaropaki Power. “Every time we’ve had to increase the project, we have had to look at the ways we structure the ownership, the finance and debt repayment policies. All of those issues have had to work around our tikanga around land ownership and protection of the resource,” she says. “For us it was really simple. Ownership of the land had to be protected, the integrity of the geo-thermal resource has to be protected, and we had to find ways to reflect that in the management, in the operations and in the commercial structure. “But when you know what your principals are then you just reflect the fundamentals.” Lawyers need to create new models that reflect what it is the owners are trying to achieve and their values. “You can’t just assume that existing models are appropriate. You have to have a good understanding of what the risks are from your client’s perspective,” she says. LT

FROM THE COURTS In-house lawyers may receive scale costs award By Frank Neill Although in-house lawyers are not entitled to costs on a scale basis under the High Court Rules, that does not prevent a costs award, as demonstrated in a recent case. In Anthony John McCullagh and Stephen Mark Lawrence v Damien Grant and Steven Khov CIV 2009-404001620 [2012] NZHC 1351, Associate Judge David Abbott awarded costs to the respondents, who were represented by their firm’s in-house lawyer. The basis of the argument that inhouse counsel are not entitled to costs on a scale basis is that a party cannot receive more than it actually spent. The McCullagh and Lawrence v Grant and Khov judgment shows, however, that the court is willing to move from the legal community’s default position regarding in-house counsel and their entitlement to a cost award. McCullagh and Lawrence submitted that costs was not a factor as Brent Norling (counsel for Grant and Khov) was acting in his capacity as an inhouse counsel. Mr Norling is an in-house lawyer who is employed by liquidator Damien Grant of Waterstone Insolvency. Mr Norling’s submission was that McCullagh and Lawrence should be liable for costs on the basis that costs generally went against the party applying to set aside a judgment entered because of its own default. He also submitted that the applicants incurred real legal costs in regards to the proceedings since he was acting as in-house counsel on behalf of the liquidator who is agent for Ellis Construction Limited (ECL). Accordingly, ECL, which is in

liquidation, would be liable for legal costs like any other entity. The 14 June judgment related to a long-running dispute between the receivers of ECL – formerly in receivership, now in liquidation – and the liquidators of the company. The liquidators eventually applied on 21 May 2012 for an order that the receivers produce “any books, records or documents relating to the business, accounts or affairs of ECL in their possession or under their control.” While the receivers contend that they had delivered up all documents in their possession that belonged to the company, the liquidators maintain they received only records for the period before the receivership. “The liquidators’ application came before me in a miscellaneous companies list on 6 June 2012,” the judgment says. “It had been served on the receivers on 23 May 2012. “No opposition had been filed. The receivers did not appear. I made orders on the application and directed that the receivers comply within 10 working days of service of the sealed order.” The next day, counsel for the receivers filed a memorandum advising that the

failure of the receivers to appear was “due to inadvertence”. The receivers then filed an application for the 6 June order to be recalled or set aside. “That direction (to file a formal application) was given because the liquidators did not agree to recall or setting aside by consent.” Associate Judge Abbott ruled that an oversight on the part of counsel as to a hearing date was an appropriate excuse. He also ruled that there was sufficient issue over ownership of the records to constitute an arguable defence for the receivers, and was therefore a question he did not have to determine that day. Associate Judge Abbott recalled the order made on 6 June and ordered the parties to file either a joint memorandum or separate memoranda, setting out proposed directions for bringing the original application before the court for determination. “The usual principle applicable to an application to set aside (that costs should be awarded against the party applying) should apply in this case. The award of costs is to be on a scale 2B basis,” Associate Judge Abbott said. LT

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LAWTALK 801 / 3 AUGUST 2012

Don’t let ETS become a nightmare By Stuart Orme* The Emissions Trading Scheme (ETS) is here to stay. It brings important legal implications to consider when providing advice to your clients, especially surrounding the transfer of land ownership, whether it is by sale/purchase, or succession arrangement. You could either save your clients a lot of money and hassle, or unwittingly allow them to fall into the dark depths of an ETS nightmare. This article outlines the potential booby traps and how you can help your clients avoid them.

Overview The ETS is governed by the Climate Change Response Act 2002 (CCRA). It identifies two classes of land: post-1989 and pre-1990 forest land.

Post-1989 forest land This is land that was established in forest after 31 December 1989. Land that was in forest before this date, but was subsequently deforested between 1 January 1990 and 31 December 2007 (ie, the land use was changed to something other than forestry) is also eligible if it has since been re-established as forest. Post-1989 forest land can be exotic or indigenous species, providing it meets the forest land requirements. It is completely voluntary for a post1989 forest landowner to join the ETS. If the landowner chooses to become a participant, they can earn New Zealand Units (NZUs) as their forest grows, and they also have to surrender NZUs (in part or full) if their forest is harvested or destroyed. When post-1989 forest land is registered in the ETS, a notice is lodged on the land title records. This notice provides a flag to prospective purchasers that the land is affected by the ETS.

LAWTALK 801 / 3 AUGUST 2012

Pre-1990 forest land This is land that was already in forest on 31 December 1989 and remained in predominantly exotic forest on 31 December 2007. Pre-1990 forest landowners are bound by the obligations that the CCRA enforces upon them, which are that the land must be used to grow forest in perpetuity. Harvesting pre-1990 forest is allowed but the land must be re-established back into forest within four years of harvest. If the land is converted to non-forest, then a deforestation obligation is created. Pre-1990 forest landowners do not receive NZUs as their forest grows, but they were given the opportunity to apply for a one-off allocation of NZUs or an exemption to the deforestation rules of the ETS. When a successful application for an allocation or an exemption for pre-1990 forest land is made, a notice is lodged on the land title records that the land is pre-1990 forest land (and hence affected by the deforestation provisions of the ETS) or is exempt from the ETS. Pre-1990 notices do not show the exact areas affected. The notice simply flags to prospective purchasers that the some part of the land is affected.

Deforestation: potential risk Deforestation obligations apply to owners of pre-1990 forest land regardless of whether there is a notice on the title or whether an allocation has been received or not. Importantly, the absence of a notice on land title records is not evidence that the land or part of it is not pre-1990 forest land. Understanding if deforested land exists on properties for sale or on properties purchased since 2008 should be part of any due diligence process applied before any sale and purchase agreement is entered into.

• The farm is sold in 2011 to a new owner who continues to farm the land that has not been replanted. • In 2012 the new owner is likely to receive a deforestation notice from MPI for immediate surrender of 17,140 NZUs, or in lieu of NZUs surrender a payment of $428,500 (based on $25/NZU) to the Crown. • In addition to the above, the Crown may also impose a fine of $30/NZU for not voluntarily advising MPI of the deforestation, which in this case would amount to $514,200. • Total potential cost to the new owner = $942,700. The CCRA does allow for an appeal. To date if there is voluntarily disclosure, or if extenuating circumstances apply, there has sometimes been movement on the amount this cost has settled at.

Offsetting as an alternative In 2013, “offsetting” will be introduced to allow an owner of pre-1990 forest land to deforest. Offsetting is where new forest can be planted elsewhere in lieu of the deforested land. The exact details of offsetting are still emerging. However, the rules regarding deforestation will still apply to pre-1990 forest land deforested up until at least the end of 2012.

Don’t get caught out When a post-1989 ETS participant (transferor) transfers, by way of sale, assignment, or by operation of law, an interest in all or part of the forest land, the ETS participation automatically transfers to the new ETS participant (transferee).

The following is a case study showing what may occur if 20ha of pre-1990 forest in the lower North Island is deforested:

The transferor and transferee must notify MPI of the transfer within 20 working days by completing a “Transfer of Participation” form. Regardless of whether the transfer form is completed, if someone acquires post-1989 land that is ETS registered, they will automatically inherit the obligations registered against that land unless the previous participant withdraws the land from the ETS before the land transfer.

• In 2009 a landowner fells a 20 ha stand of 30-year-old pine trees and does not replant.

A not-so-well-known but very established fact regarding post-1989 forest land registered into the ETS

is that if the participant sells their property (or changes the names on the title by more than 40%) then they must make a Mandatory Emissions Return (MER) within 20 working days of the date of the transfer. Failure to do so would be in breach of the CCRA. This return confirms the transferor’s obligations and entitlements up to the date of transfer.

What to look for on behalf of your client If your client is looking to purchase land for future registration as post-1989 forest land in the ETS, then it is important to investigate the history of the land to confirm it is eligible. Historical photos, satellite imagery and farm records can help determine the status of the land as at 31 December 1989. If the land is already registered in the ETS, important considerations are: • If the forest land is not withdrawn from the ETS before the date of transfer, the new owner will automatically become the new participant in the ETS and be responsible for any subsequent surrender obligations. • It is prudent to request information from MAF such as prior emissions returns and the unit balance for the forest land. Requests can be made by calling 0800 CLIMATE (254 628). • If the vendor withdraws the land from the ETS before settlement of the sale, they will be responsible for any surrender obligations, so there will be no responsibility transferred to the new owner. Once the land is withdrawn, the notice that the land is affected by the post-1989 provisions of the ETS is removed from the land title. My experience to date shows that

although the ETS registration will be noted on the title and although the CCRA is clear on the responsibilities of each party, due diligence practice is not as good as it could be. There may be parties in breach of the CCRA that will eventually be caught up with in 2013 – possibly when the Mandatory Emissions Return is not filed by a new landowner who does not realise they’re in the ETS.

• If they do not do a MER, MPI will eventually contact them requesting it. Because they will have committed an offence by not completing the return on time, penalties may apply, including a fine of up to $8,000 (it is likely that this will be the first time many parties in this situation will discover they are obligated and also in default of the CCRA).

If you are affected by the above, I advise you to be proactive in remedying any oversight as soon as possible. It is an offence not to (knowingly or without reasonable excuse) provide any required emissions returns, notifications, information or documents, and fines may apply.

• At the date of land transfer, the previous owner had 20 working days to affect a Mandatory Emissions Return and Transfer of Participation to the new owner who has automatically become the new ETS participant through purchasing post-1989 registered land. If the previous owner has not submitted a Mandatory Emissions Return as above, they are in default of the CCRA and their responsibilities.

Post-1989 land transfer case study A client approaches you having purchased a property at the beginning of this year, which they later find already has post-1989 forest land registered into the ETS. They request an explanation of: • what obligations they may have inherited (if any); • what, if any, responsibilities they now have; and • what are the implications of not fulfilling those responsibilities. The answers you could provide to your client: • They have inherited the surrender obligations to Ministry of Primary Industries (MPI) for any credits the previous owner claimed and any future surrender obligations that may arise. • They are required to do a Mandatory Emissions Return (MER) between 1 January and 31 March 2013 for the 2008 to 2012 commitment period.

Summary The effects and implications of the CCRA are only just beginning to emerge. The ETS should always be investigated and considered when providing professional advice to clients, whether it be embracing its opportunities or mitigating its risks. LT *Stuart Orme is a Registered Forestry Consultant and ETS adviser to New Zealand lawyers. He is from Woodnet, a Wairarapa-based independent forest advisory and management company providing a wide range of services to land and forest owners and the professionals who support them. See www.woodnet.co.nz. Reference: Some information in the above article has been obtained from Forest Land Transactions in the Emissions Trading Scheme, published by MAF, May 2011. This guide can be obtained from www.mpi.govt.nz.

DR BRYAN GILLING AND CAMPBELL DUNCAN NEW PARTNERS AT MORRISON KENT

“ What makes Morrison Kent a great ﬁrm is its people.

◆

Our lawyers are amongst the best in the business, and we share a real ◆

commitment to achieve the very best for our clients.

We welcome Dr Bryan Gilling and Campbell Duncan as Partners

with expertise

in Maori Legal Services including Maori

Morrison Kent – proud of our people.”

Land Law and Treaty of Waitangi claims. ◆

www.morrisonkent.com Telephone: 04 4720020 Email: morrison.kent@morrisonkent.com MOK10353

LAWTALK 801 / 3 AUGUST 2012

THE BOOKSHELF THE LEGAL PROTECTION OF FOREIGN INVESTMENT: A comparative study Edited by Wenhua Shan

This work is based on reports presented at the Protection of Foreign Investment session at the 18th International Congress of the International Academy of Comparative Law, held in Washington DC in July 2010. Part I presents a comparative overview of foreign investment protection in the world, while Part II has in-depth and detailed accounts of the investment laws of 22 jurisdictions. New Zealand is not included but the countries covered are Argentina, Australia, Canada, China, Croatia, Czech Republic, Ethiopia, France, Germany, Greece, Italy, Japan, South Korea, Macau, Peru, Portugal, Russia, Singapore, Slovenia, Turkey, the United Kingdom and the United States. (Hart Publishing, June 2012, 978-1-841138-84-8, 754 pages, hardback, £110). PUBLIC LAW TOOLBOX: Solving Problems with Government By Mai Chen Reviewed by Matthew Smith* Mai Chen’s Public Law Toolbox is likely to find a prominent place on your bookshelf. Reviewers of the book fairly and variously refer to it as a “unique” work which “lifts the veil” on how our democratic institutions work (Sir Geoffrey Palmer); “demystifying the complexity of our public law… [to] empower the reader” by presenting “a highly usable and informative roadmap” (Dame Jenny Shipley); and “setting out how public law need not be a barrier but rather how the tools of public law can be used to grease the wheels of business” (Professor Susan Watson). The Public Law Toolbox assists

LAWTALK 801 / 3 AUGUST 2012

the busy reader to those ends by its inclusion of chapters defining the relationship between law, politics and business (chapters 1-2); clarifying how the machinery of government works (chapters 3-9); explaining how to effectively seek official information (chapter 10); highlighting key “tools” in the public law toolbox and practically how they can be used to achieve tangible outcomes in engaging with the machinery of government (chapters 1127); and concluding with reflections on constitutional change in New Zealand (chapter 28). The book in its focused chapters on these topics provides time-stretched readers with relevant and easy to access material on our different public law tools. This is achieved through the use of such helpful techniques as summary checklists, like the one for considerations when devising a strategy for a policy or law reform problem (pp196-197). It also effectively uses summary tables to set out pros and cons of different public law options. One example of this is a table setting out the pros and cons of seeking a Waitangi Tribunal inquiry before going into Treaty settlement negotiations with the Crown (pp490-491). While the Public Law Toolbox is premised on the well-established notion that “good lobbying usually means getting involved at the very earliest stages of policy formulation” (Lionel Zetter, Lobbying: The Art of Political Persuasion (2008) at p3), the book is also useful for those whose practices involve public law litigation. While the Public Law Toolbox rightly cautions that “litigation should be a tool of last resort, given that it is expensive, timeconsuming and uncertain” (p947), it does recognise advantages from litigation (pp948-949). I note that one form of public law litigation – judicial review – can be brought to reverse a legally flawed decision (as in the Crafar Farms case); to encourage a decisionmaker to take a complaint more seriously (for example by requiring it to slow down and meaningfully resolve problems as in the Lands case); or more ambitiously to contribute to a policy of “social change” by raising the

profile of an issue in the minds of officials, elected representatives or the general public (as in the Quilter case). These impacts can even be achieved by losing the “battle” of a proceeding, but winning the “war” of the change that is sought (as in the CREEDNZ challenge to the proposed aluminium smelter at Aramoana). The Public Law Toolbox also very usefully includes precedents users can apply in their daily practice. For example, the book gives guidance on how to make successful requests for official information under the OIA, recommending that in doing so before an OIA request is made the agency to whom the request is to be directed should be contacted to check that it has the information sought (pp425426). This practical tip helps to avoid a situation where the agency responds to the request at the end of the 10-day period required under the legislation only to tell you that it does not have the information you have sought and that it intends to send a request for that information to another agency that has the information, “thereby delaying access to the information because transfer means the 20-day deadline for response starts again” (p429). In its inclusion of practical, empowering information on public law tools like the OIA and how they can be used effectively, the Public Law Toolbox very nicely complements the existing public law texts in New Zealand, including Constitutional and Administrative Law in New Zealand, Parliamentary Practice in New Zealand, Judicial Review: A New Zealand Perspective, and the New Zealand Judicial Review Handbook. Because Public Law Toolbox focuses not so much on the nitty gritty details of constitutional, administrative and parliamentary law and practice, but instead on identifying the different public law tools in these fields and how they can be used most effectively to leverage change, it is likely to be regularly consulted. PUBLIC LAW TOOLBOX: Solving Problems with Government, by Mai Chen, LexisNexis, March

THE BOOKSHELF 2012, 978-1-877511-88-2, 1050 pages, $184 (GST incl, p&h excl). Available in paperback and e-book. *Matthew Smith is a Wellington barrister based in Thorndon Chambers and specialising in civil and commercial litigation and judicial review. He is the author of New Zealand Judicial Review Handbook (Thomson Reuters, 2011). SEARCH ORDERS By John Katz QC Reviewed by Helen Dervan* For Frederic Maitland, in the early 20th century, the greatest and most distinctive achievement in the field of jurisprudence was the development of the trust idea (FW Maitland, Collected Papers, III, 272). For Lord Denning, in the late 20th century, the “greatest piece of judicial law reform” in his time was the freezing order (The Due Process of Law (1980)). If these legal scholars were to purvey the heights of legal development in the 21st century, they might well now include the modern search order in their lists of best achievements. From its inception some 35 years ago, the search order has undergone enormous development and refinement by both the courts and Parliament. Pre-Universal Thermosensors v Hibben, it was apparently possible (as recounted some years ago to this reviewer by a senior city practitioner) to serve a search order “on the night cleaning staff and complete the search before the defendants arrived in their BMWs for work in the morning”. Now, the legal principles regulating the granting and execution of these orders are among the most complex and most scrutinised in our legal system. The development of these orders and the applicable legal principles reflects the growth in new technology and recognises the need to protect property rights very often in assets related to that technology. For any practitioner seeking to obtain a search order, the way is rife with hazards and the costs of inadvertently making an error are high. Thus, the detailed consideration of search orders by an experienced and senior counsel is heartily welcomed. While this book is not the first to provide detailed discussion of search orders (see Stephen Gee QC’s Commercial Injunctions (5th edition, Sweet and Maxwell 2004) and Iain Goldrein QC’s Commercial Litigation: Pre-emptive Remedies (2nd edition, Sweet and Maxwell 2011)), it is a significant text in

that it discusses these orders with a clear New Zealand perspective. Search orders are covered in some general New Zealand equity texts (such as Andrew Butler, Equity and Trusts in New Zealand (2nd edition, Thomson Reuters 2009)), but this text provides a more detailed discussion of the relevant legal principles and the types of practical issues and problems that can arise when applying for and executing these orders, and which can often require immediate resolution. The author notes, in his preface, that the text is “intended as heavily practitioner oriented”. Given that these orders are almost invariably obtained ex parte, the author has gone to some considerable length to put together information and advice for the time-pressed practitioner. In doing so, he has adopted a clear, simple and lucid style, so that the valuable information he has to impart can be easily absorbed. As one would expect from a practitioneroriented text, the index is well designed so that the analysis and discussion of differing topics is readily accessible. A particular feature of this book is the way that information is categorised by the author. After an excellent introduction, in which the author succinctly recounts the background to these orders and discusses the three essential requirements for the granting of an order (the “trinity of requirements”), he then deals comprehensively with the relevant legal and practical issues in the order in which they would naturally arise in practice. This discussion is insightful and covers a large variety of topics ranging from obtaining insurance to the most effective and efficient way to collect the evidence. Headings, sub-headings and various typefaces are used to divide the text and the overall effect is reminiscent of a checklist. Again, this is a useful aid to the time-pressed practitioner. Footnotes are kept relatively short and to the point, so that they are helpful but do not distract from the body of the work or require immediate consultation with other works, articles or reports. To publish a book of this quality while also undertaking a busy legal practice is a notable and impressive achievement. This book should be a permanent feature on the library shelf of every law firm with a commercial litigation practice. It is likely that the text will be cited in the decisions of New Zealand’s superior courts. It is certainly a text that should be brought to the attention of all law students who have an appetite for commercial litigation practice. SEARCH ORDERS by John Katz QC, LexisNexis, April 2011, 978-1877511-96-7, 362 pages, $149 (GST

incl, p&h excl). Paperback and e-book. *Helen Dervan is a senior law lecturer at Auckland University of Technology. She teaches commercial equity, civil procedure and legal ethics.

Legal publishers’ profit $9.5 million in 2011 Annual reports filed with the Companies Office during June by the three multinational legal and professional information publishers operating in New Zealand show they had a combined after-tax profit of $9.522 million in the 2011 calendar year. This came from total revenue of $64.591 million. While combined after-tax profits rose by a very healthy 33.3% from 2010 (inflated by a loss of $0.414 million by CCH in 2010), revenue was relatively flat in 2011, growing only 1.8% from 2010. Operating (before-tax) profit for the three was $13.935 million – 21.6% of total revenue – showing that the sale of professional information in New Zealand is quite lucrative. Brookers Ltd (with 100% of shares owned by Australia-based Thomson Reuters (Professional) Australia Ltd) reported 2011 revenue of $31.463 million for an after-tax profit of $6.685 million. Revenue was down $2,000 from 2010 but profit was up 16.0%. LexisNexis NZ Ltd (with 100% of shares owned by Netherlands-based Reed Elsevier Overseas BV) reported 2011 revenue of $22.371 million for an aftertax profit of $2.676 million. Revenue was up $262,000 from 2010 and profit rose 49.2%. CCH New Zealand Ltd (with 100% of shares owned by Netherlands-based Wolters Kluwer International Holding BV) reported 2011 revenue of $10.757 million for an after-tax profit of $0.161 million. Revenue in 2011 was up $907,000 from 2010 and the profit followed a loss of $0.414 million in 2010. Of the three, Brookers/Thomson Reuters and LexisNexis make a significant proportion of their revenue and profit from the sale of legal information, while CCH’s primary focus is on accounting and tax information. On a global scale, the New Zealand revenue is the proverbial drop in a bucket. The 2011 annual reports for the three multinationals show that combined revenue from the sale of professional (legal, tax, accounting) information in 2011 was around NZ$13.682 billion. New Zealand contributed 0.5% of this. LT

LAWTALK 801 / 3 AUGUST 2012

PROFESSIONAL INDEMNITY Technology risk and professional indemnity By Damian Schade* Recent well-publicised leaks of electronically-held personal information from a Government department and two major credit card companies have brought cyber and privacy issues to the headlines.

confidential information (be it personal or commercial) is exposed, as well as anyone with an online presence or reliance upon technology.

These wake-up calls have forced many firms to think about these issues. Firms that are thinking about it are wise to do so, because it has implications relating to their practices and to their insurance cover.

A 2012 Marsh risk management survey, conducted across legal firms within the United Kingdom, examined the major risks that could affect firms. One of the most interesting findings was that firms believed a technology security or privacy breach would have a significant negative impact; consequently viewing this risk as a larger issue than fraud, loss of their largest client or even loss of key partners/staff.

What does it all really mean, what are the main risks and will your professional indemnity policy provide protection in the event that you are “caught up”.

Are you exposed? Firms are increasingly using technology and the internet to become more efficient and improve their service offerings. This increased reliance on technology in turn exposes firms and professionals to growing cyber and privacy threats. Liability can arise from negligence, social media and networking, outsourcing, employees, hackers, viruses, hardware theft, phishing and breach of regulation. 70% of New Zealand adults have been the target of some form of cyber crime, with $500 million lost last year alone as a result of international scams and fraud attempts. Cyber and privacy liability is liability arising out of the use of a computer or computer network as well as the disclosure, or threat of disclosure, of personal or corporate information. Most organisations, regardless of size or industry, face increasingly complex information and computer security risks. Any firm that collects data or

LAWTALK 801 / 3 AUGUST 2012

Will your policy respond?

Your standard solicitors professional indemnity policy does not generally cover you for cyber, privacy or technology-related risk. The rapid evolution of cyber and privacy risks has left many of the traditional forms of insurance unable to adequately respond. Professional indemnity policies often limit coverage to claims arising from negligence in performing specifically defined services such as those of a barrister or solicitor. They also exclude cover for criminal or intentional acts of insured’s or their employees and pre-claim expenses associated with a privacy breach (ie, notification costs and regulatory defence). Fines and penalties are also generally excluded. Property policies typically limit coverage to, damage to, or loss of use of physical property resulting from a physical peril and to damage to tangible property only at specific locations. Several insurers expressly exclude coverage for any damage to data and it has long been established by the courts that data is not tangible “property”.

Where to from here? It is no surprise that the Government is taking the increasing cyber and privacy threat very seriously. In June 2011, it presented its cyber security strategy which is to be headed by the Ministry of Economic Development. As part of this strategy, a review of the Privacy Act was undertaken and 136 recommendations have been made. A key recommendation that has been gaining support is the compulsory reporting of serious breaches, (which is already the case in many other jurisdictions around the world). Other recommendations include new powers for the Privacy Commissioner; eg, the power to issue a compliance notice to an entity or individual, binding them to comply or face penalties. On top of this is a recommendation requiring an audit to be completed of an entity’s or an individual’s privacy practices. It is unlikely that your firm’s current liability insurance programme will provide the full protection you require. Cyber and privacy risks can no longer be ignored or trivialised and a proactive response must be considered to ensure your protection.

What to do? The only way to ensure that you are fully protected is to consider the addition of cyber liability insurance to your existing risk management and insurance programme. The typical business insurance policy only covers so-called “tangible” assets, and electronic data is not considered tangible under the typical policy definition. Cyber liability insurance fills that gap. With respect to the firm’s own liability, cyber liability insurance can provide coverage for crisis management and

Global legal experts attend NZ events SUPPORTING INDEPENDENT LEGAL THINKING

A host of eminent global experts will take part in major conferences and deliver presentations in New Zealand over the next few months, thanks to Law Foundation support.

goods. Among the 19 international experts attending will be advisory council chair Professor Ingeborg Schwenzer and secretary Professor Sieg Eiselen.

Our funding has enabled 19 legal scholars to come to Wellington from 29 July to 4 August to attend the annual meeting of the International Sales Convention (CISG) Advisory Council. Members of the advisory council will also present at the Arbitrators and Mediators Institute of New Zealand (AMINZ) conference.

The decision to hold the advisory council annual meeting in New Zealand provides a great opportunity for New Zealand lawyers to learn about the advantages the convention offers as the law of choice for resolving international trade disputes.

The CISG, also called the Vienna Convention, is a United Nations treaty offering a uniform and fair international regime for sale of goods contracts. New Zealand is a signatory to the treaty. The CISG Advisory Council is a private international initiative that promotes uniform interpretation and improved understanding of the convention. The advisory council includes world experts in legal issues relating to the sale of

identity theft as well as cyber extortion, network business interruption and data asset protection. This includes expenses incurred in protecting the firm’s reputation as a result of an actual or alleged privacy or security breach. Furthermore it can also provide for reimbursement and extra expenses resulting from an interruption or suspension of your systems due to the failure of your network to prevent a security breach. In terms of third parties, it insures network security liability as a result of a failure of your own security causing corruption of a third party’s data or systems. It also includes privacy liability as well as intellectual property and media breaches. Cyber liability insurance should be strongly considered to fill the gaps that exist in traditional insurance programmes. *Damian Schade is Principal, Assistant Vice President & Solicitors Practice Leader at Marsh. Damian advises professional firms on all areas of risk management and liability insurance. damian.schade@marsh.com LT

Victoria University Law School will be the principal host of the advisory council, supported by the Law Foundation. Russell McVeagh and Chapman Tripp will also host meetings with the council, and councillors are taking part in the AMINZ conference at Te Papa from 2-4 August. The Law Foundation brings a wide range of international expertise to New Zealand every year. Already this year we funded Justice Kate O’Regan of the Constitutional Court of South Africa for our annual Ethel Benjamin Commemorative Address. We also brought Professor Andrew Ashworth, eminent Oxford criminal law expert, to New Zealand as our 2012 Distinguished Visiting Fellow. He delivered lectures at law schools around the country. In addition, our funding allowed three international experts to present keynote sessions at the New Zealand Legal Research Foundation conference Mapping the Common Law on 29 June. We also helped fund participation by two top legal scholars at the Australia New Zealand Society of International Law Conference on 5-7 July, hosted by Victoria University Law School Centre for Public Law. Forthcoming visits supported by the Foundation this year will include: • Professor Robert George, McCormick Professor of Jurisprudence at Princeton University, who will give the Maxim Institute’s 2012 Sir John Graham lecture on 6 August. • Professor Hilary Charlesworth, human rights law expert and Director of the Centre for International Governance and Justice at Australia National University, who will deliver

Lynda Hagen

the 2012 Shirley Smith address at Victoria University Law Faculty on 21 August. • Seven international indigenous law experts to participate in the World Indigenous Lawyers Conference, hosted by Te Hunga Roia Maori O Aotearoa (THRMOA) (the Maori Law Society), at Waikato University from 5-8 September. They are: Antoinette Braybrook, CEO Aboriginal Family Violence Protection and Legal Service in Victoria, Australia; Professor Paul Chartrand, Director of the Aboriginal Governance Programme, University of Winnipeg, Canada; Tony McAvoy, former Australian indigenous legal professional of the year; Aumua Ming Leung Wai, Samoan AttorneyGeneral; Rebecca Tsosie, teacher and writer in American Indian indigenous issues; Leilani Tuala-Warren, executive director of the Samoan Law Reform commission; and Robert Yazzie, former Chief Justice of the Navajo nation in the United States. • Two experts to take part in the 13th International Criminal Law Congress in Queenstown, hosted by the Criminal Bar Association, from 12-16 September. They are Sir Adrian Fulford, International Criminal Court Judge; and Judge Stein Schjolberg, extraordinary Court of Appeal Judge in Norway. • The New Zealand Law Foundation Annual International Dispute Resolution lecture by Lucy Reed, partner at Freshfields and co-head of its global international arbitration group, on 7 November. We hope many of you will be able to participate in these events and benefit from sharing the knowledge, experience and expertise of these excellent speakers. The Foundation will be considering applications for keynote speakers for 2013 conferences and other events at its final meeting in 2012. Applications close on 31 October and all information can be found on our website www. lawfoundation.org.nz. LT Lynda Hagen is the Executive Director of the New Zealand Law Foundation.

LAWTALK 801 / 3 AUGUST 2012

WHAT’S NEW? Based in the United Kingdom, QualitySolicitors recently employed an interesting and successful marketing campaign. Team Saatchi seeded QualitySolicitors’ campaign with a television advertisement that looks at people in different stages of their life. Birth, house buying, business ownership and death are all emotively tied together under the soundtrack Hard Road to Travel. The television ad aired 8,000 times during peak programming in the United Kingdom, meaning QualitySolicitors hit 80% of its target audience. At the same time, the firm released the ad on YouTube (www. youtube.com/qualitysolicitors). The clip has now received over two million views on the social networking platform. Television advertising territory is quite unchartered for organisations that offer professional services, but QualitySolicitors proves the medium can achieve lucrative results. The number of unique visits to the firm’s website has increased by over 100% since the campaign began; the volume of online PROFESSIONAL LEGAL STUDIES COURSE

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

inquiries has skyrocketed by 320%; there was a 254% rise in the number of clients put in touch with QS firms since the start of May; and Hard Road to Travel made it to the iTunes top 50 and has been included in 50 radio playlists. “I am astounded at the amount of new client enquiries that are coming through. I never imagined that the advert would have such a massive impact,” says Paula Fowler, Managing Partner, QualitySolicitors FJG. QualitySolicitors used two primary mediums, television and an element of social media, to create the initial buzz. The firm then followed this up with a print advertorial attached to the outside of the Law Society Gazette, journal of the Law Society of England and Wales. Only the printed element of the campaign showed comments and feedback about the initial ad and results statistics. This worked to further generate curiosity, so readers (us included) wanted to find out what all the hype was about. The outcome? More online searches for QualitySolicitors and, in effect, more brand exposure for the firm. Although we do not know how much the entire campaign cost (we would hazard an expensive guess), with such a dramatic increase in business, it might be worth looking into. LT

Justice Coalition established The Justice Coalition, comprising 11 major NGOs, announced its establishment in July. Community Law Centres o Aotearoa is one of the members of the coalition, which has been eight months in the making. The foundation of the new organisation was laid when Rethinking Crime and Punishment started a conversation with a group of justice NGOs about the need for a more collaborative approach to policy and advocacy responses, projects, resource sharing, and a unified media response.

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

“The Justice Coalition was established not only to provide a point of interaction with core justice NGOs, but through its collective networks, to facilitate communication with a wider group of justice and social sector entities, individuals and justice consumers,” it says. “By broadening the spectrum of advice, experience and expertise, we can promote a more comprehensive understanding of the impact that justice policy has on the community.” Other members of the coalition are Victim Support, Restorative Justice Aotearoa, New Zealand Howard League for Penal Reform Inc, Prisoners Aid and Rehabilitation Trust, Salvation Army, Henwood Trust, National Coalition of Howard Leagues, Robson Hanan Trust (Rethinking Crime and Punishment), The National Collective of Independent Women’s Refuges and Prison Fellowship. The Justice Coalition currently does not have a website.

LAWTALK 801 / 3 AUGUST 2012

Ministry needs ‘significant transformation’ The Ministry of Justice needs to undergo a “significant transformation” so it can achieve its full potential to capitalise on the opportunities currently present. This is one of the conclusions of a Performance Improvement Framework Review for the Ministry of Justice, released by the State Services Commission (SSC) on 18 July. The review was carried out by the SSC, the Treasury and the Department of the Prime Minister and Cabinet. And one area the ministry needs to “move quickly” on is enlisting external support, including the support of the legal profession, the report indicates. “The ministry can only deliver in any of its priority areas if it is able to enlist active external support over and above the four other government agencies in the criminal justice sector. “This is an area where the ministry’s current relationships are difficult (eg, the judiciary and the legal profession), weaker than they need to be (eg, other departments in the Treaty area as well as those who can influence the drivers of crime) or still emergent (eg, nongovernment agencies, like Community Law Centres, and the wider community). “However, this is also an area where the key counterparties seem to be ready to recognise the opportunities and constraints facing the ministry and are keen to engage constructively with it to improve wider justice sector outcomes. “The ministry needs to move quickly to seize this opportunity. It needs to demonstrate to these key external parties that it recognises the important role they have to play and can and will work constructively with them to deliver better services to the public,” the report says. Various changes were starting to have a positive impact on crime rate trends, criminal prosecutions and imprisonment. “This should deliver a substantial ongoing fiscal ‘dividend’,” the report says. “Government has agreed to maintain a fixed expenditure baseline for the criminal justice sector agencies for the next four years (ie, Police, Justice [including Courts], Corrections, Crown Law and the Serious Fraud Office). “This creates the opportunity for the sector to reconfigure its operating model to improve the service it delivers to the public, as long as it can reduce costs in line with falling criminal volumes and

free up resources for reinvestment. “This creates real opportunities for the ministry to shift its focus: from having to respond to the consequences of everincreasing criminal volumes and costs to a more proactive consideration of how the justice sector can add most value to New Zealand. “Other key participants in the sector seem keen to play their part. This creates a unique opportunity for the ministry across at least four key areas: • in making a further substantial improvement in public safety by strengthening the ministry’s sector leadership, aimed at addressing the drivers of crime; • in improving the quality of justice by helping more people resolve issues without recourse to the courts and by working with the judiciary and legal profession to make the substantial operational improvements that everyone accepts as available, in order to improve the accessibility, timeliness and predictability of justice delivered by courts and tribunals, while correct outcomes according to law continue to be delivered; • to use the experience it has accumulated in the Treaty settlement process to make a substantial contribution to the development of the Crown-Iwi relationship in a way that improves social cohesion; and • to develop a broader and more proactive policy advice function less dominated by criminal justice and more focused on the policies that will maximise the contribution the justice sector can make to New Zealand society. This should include an articulation of the fundamental role effective justice plays in underpinning a successful market economy.” As the factors critical to the ministry’s success had changed, it was not surprising it had some significant weaknesses and generally needed development in areas critical to success in this new world. “We are confident the ministry can meet the challenges it faces and realise the opportunties the new environment has opened up. “We are confident because the leadership accepts the challenge and wants to realise these opportunities. We are confident because the partners so critical to success want to engage constructively in the mission. “Most of all, though, we are confident

because the people we have met who work for the ministry want to make a difference,” the report says. “Our plan is to build a customerfocused, 21st century justice system and ministry,” Secretary for Justice Andrew Bridgman says in a section of the report entitled Agency’s Response. “Over the next four years, the Ministry of Justice has two key tasks: to reshape itself as a modern organisation built around delivering better results and services to the public; and to lead the justice sector to do the same. “It is critical that we are focused on what’s important – a justice sector that really delivers value to New Zealand through improving public safety and providing better, more accessible public services,” Mr Bridgman says. “Supporting the enduring principles of justice – maintaining the rule of law, keeping the public safe and providing the framework that allows people to get on with their lives and invest and run businesses – doesn’t mean that the way we’re organised, the technology, processes and systems we use and how we work have to be old-fashioned and costly. “We cannot just modernise our current practices. In order to deliver the change required the ministry will look, behave and think differently and we have to move quickly from where we are to that modern state.” The ministry has developed a new business strategy “with the central purpose of creating a 21st century justice system and customer-focused ministry”. The strategy will set out the desired future state for the public and users of the justice system. “We will know what this is because we will ask them. An in-depth survey of the ministry’s stakeholders and customers will be undertaken by 31 October 2012. “The ministry must capitalise on the willingness of the judiciary, representatives of the legal profession and other groups who make the justice system work and ensure its integrity, to engage constructively and deliver better outcomes. “Their support is critical for improving the performance of the system and for any change and by July 2012 we will implement an external engagement strategy to reinvent the relationship with key participants.” The review is at www.ssc.govt.nz/ sites/all/files/pif-moj-reviewjuly2012.pdf. LT LAWTALK 801 / 3 AUGUST 2012

BRANCH NEWS

Legal Executive Diploma graduates with Justice Kós (from left) Lynette Roders, Anama Eruera, Jennifer Hanson, Elizabeth Masterton, Alice Greer, Kim Alexander, LaurenBeth Miles, Shona Russell, Justice Kós, Jasmine Barley, Hope Johnson, Amanda Pensen, Liz Newton, Ruth Paton and Elaine Carr.

WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869

Legal Executive Graduation The Wellington legal executive graduation ceremony was held at the High Court last month. The Wellington branch hosted 14 graduating legal executives, their friends and families with Justice Stephen Kós as guest speaker.

Justice Stephen Kós and Hope Johnson.

Young Professionals Ball

Hope Johnson was awarded top mark in the country for the business law and practise exam and the top Wellington region graduate 2012.

The Wellington Young Lawyers’ Committee Young Professionals Ball will take place in just over a week. It will be held on Saturday 11 August, with entry from 7pm, at 4 Hania Street, Mt Victoria.

President of the New Zealand Institute of Legal Executives Wellington branch Jenny Samson rounded off the formalities with information on what their professional organisation does for legal executives. New Zealand Institute of Legal Executives Wellington branch President Jenny Samson.

LAWTALK 801 / 3 AUGUST 2012

Entertainment will be provided by Wellington rock covers band The Dufraines. Tickets are available through www.younglawyers.co.nz.

BR ANCH NEWS

At the 25th anniversary celebration of the Wellington Women Lawyers’ Association (from left) Margaret Powell, Marion Frater, the Chief Justice Dame Sian Elias, Ann Wilson and Mary Jeffcoat.

Wellington Women Lawyers’ Association 25th anniversary celebration

The evening will start at 5:30pm, with the presentation at 6pm. RSVP to frances.levy@lawsociety.org.nz, 09 304 1008 by 6 August.

• identifying and securing

The Wellington Women Lawyers’ Association celebrated 25 years of incorporation at the Wharewhaka last month.

The second, at 5:30pm on 16 August, will be the eighth event in this year’s AYL Winter Seminar Series: Thinking International - Taking the Entrepreneur Inside.

• understanding company culture –

The Chief Justice of New Zealand, Dame Sian Elias, was the guest speaker.

AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869

AYL upcoming events Auckland young lawyers have two interesting events planned for this month. The first will be a chance to network with fellow young professionals on 9 August. Former Justice Minister Simon Power will be guest speaker at the event, the Young Lawyers and Accountants Drinks. The event will be held at Westpac on Takutai Square and Westpac will provide free food and drinks.

BurgerFuel Worldwide chief executive Josef Roberts will be the speaker at the event, to be held at Kensington Swan, 18 Viaduct Harbour Ave. Mr Roberts is well known for turning Red Bull, a little-known energy drink, into a pop phenomenon in New Zealand and Australia, and for making millions in the process. He took Red Bull to Australia, and after selling the Australasian Red Bull franchise back to its original European owners, decided to join forces with Chris Mason, BurgerFuel founder, in working to expand the BurgerFuel business. BurgerFuel started in 1995 with its first store on Ponsonby Road and has since grown into a worldwide brand. He will speak about:

• Red Bull – the success story;

opportunities in overseas markets;

• BurgerFuel’s approach and overseas expansion; and the key to its success.

The presentation starts 6pm sharp. RSVP to frances.levy@lawsociety. org.nz, 09 304 1008 by 12 August.

WAIKATO BAY OF PLENTY NEW ZEALAND LAW SOCIETY

NZLS EST 1869

Waikato Bar dinner A bar dinner for Judge Barney Thomas, Judge Alayne Wills and Judge Robert Wolff will be held in Tauranga on 31 August. The dinner at the Trinity Wharf Hotel is open to all lawyers who hold a current practising certificate. Tickets cost $130 and can be obtained by emailing waikatobop@lawsociety. org.nz. LT

LAWTALK 801 / 3 AUGUST 2012

UPCOMING PROGRAMMES Programme

Presenters

Content

Where

When

CIVIL Litigation Skills

Director: Jonathan Krebs Deputy Director: Janine Bonifant

This highly regarded residential week-long course is open to applicants with at least Christchurch 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. Applications close 22 June 2012.

19-25 Aug

Introduction to High Court Civil Litigation Skills

Sandra Grant John Hardie Judge Rod Joyce QC Nikki Pender Paul Radich Tom Weston QC

Junior practitioners should not miss this opportunity to develop practical litigation Wellington skills in an intensive, small-group workshop which will take you through a summary Auckland judgement claim in the High Court to demonstrate how to handle a file from beginning Christchurch to end, how to draft pleadings, evidence and submissions, how to present an argument – and much more. Skills taught in this two-day workshop are transferrable to the District Court and other High Court cases.

29-30 Oct 12-13 Nov 19-20 Nov

COMMERICAL/COMPANY Tax Conference

Chair: Mathew McKay

The annual NZLS CLE Tax Conference is an important event for all those working in Auckland 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

Private International Law - litigating in the trans-Tasman context and beyond

David Goddard QC Prof Campbell McLachlan QC

Transactions and people cross borders with great frequency. It is common for all lawyers Christchurch to encounter transactions, relationships and disputes that have connections with more Auckland than one country. The issues are as diverse as the jurisdiction in which a billion dollar Wellington 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

CRIMINAL 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)

Dunedin Invercargill Wellington Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei

Intro

Asssessment

Practice Court

13 Jul 13 Jul 3 Aug 3 Aug 3 Aug 3 Aug 3 Aug 21 Sep 21 Sep

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)

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)

FAMILY After Death - claims against estates

Greg Kelly Jacinda Rennie

Money brings out the worst in some people, and claims made after death can Your computer tear families apart. This webinar will discuss the various claims that can be made Webinar against estates and consider advice that can be given to claimants, beneficiaries and estate trustees. The areas covered will include family protection, testamentary promises and relationship property claims as well as how to document agreements that have been reached.

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.

7 Aug

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

Programme

Presenters

Content

Where

When

Dunedin Christchurch Wellington Auckland

1 Oct 2 Oct 8 Oct 9 Oct

GENERAL Statutory Interpretation – a 2012 guide

Ross Carter Jason McHerron

Last covered in 2008, this seminar will take a fresh look at this topic, which is central to all law practice. Presenters Ross Carter and Jason McHerron will use recent case law to illustrate and analyse key principles and developments in statutory interpretation using text, purpose, context, and values.

Webinar Webinar

8 Oct

Logic for Lawyers

Prof Douglas Lind Most lawyers’ logical intuitions are strong enough to permit smooth navigation most Wellington of the time through webs of complex legal arguments without error. Still, unfamiliarity Auckland with logic and argument form limits a lawyer’s analytical oversight. This makes him or her vulnerable to committing or overlooking mistakes of reasoning that can affect the outcome of cases. Attend this workshop to learn a practical framework and gain specific analytical tools for working with legal arguments.

Stepping Up Foundation for practising on own account

Director: John Mackintosh

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

6-8 Sep 8-10 Nov

Trust Account Supervisor Training Programme

Mark Anderson, John Hicks or David Littlefair, and David Chapman, Bob Eades or Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, Wellington attend the assessment day and pass all assessments. Make sure you register Auckland in time to do the preparatory work before the assessment day as listed on Christchurch the right.

12 Sep 14 Nov 21 Nov

Writing Persuasive Opinions

Judge John Adams Simon Cunliffe Margot Schwass

Successful opinions are persuasive. Persuasive opinions are clear, succinct, Wellington jargon-free, cogently structured, legally acute and tailored to the needs of Auckland your reader/client. Comprising a mix of presentations and small-group work, this workshop will demystify the practice of writing complex legal opinions. It will provide the chance to practise and receive feedback on your writing from experienced tutors in a supportive, creative and enjoyable setting. Note: places are limited so book early to avoid disappointment.

26 Sep 28 Sep

Building on participants’ own experience, this one and a half day workshop provides Wellington hands-on practice and feedback, as well as a conceptual framework for preparing for and Auckland 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

Lawyer as Negotiator Jane Chart

23 Oct 25 Oct

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

OVERSEAS Judicial applications rise A record number of candidates applied for judicial appointments last year, reports The Gazette, journal of the Law Society of England and Wales (12 July). Quoting figures from the Judicial Appointment Commission’s latest annual report, The Gazette said there were 5,490 applications in 2011-12, of which 746 resulted in the appointment of tribunal chairs, recorders, district judges, deputy district judges, circuit judges and high court judges. The number of applications was 17% up on the previous record of 4,684 applications, in 2010-11. The number of appointments was 9% up on the 2010-11 figure of 684. The annual report did not give a breakdown of applications and appointments for solicitors and other groups underrepresented in the judiciary, but said that the commission was monitoring the progress of “women; black; Asian and minority ethnic candidates; solicitors; and disabled candidates” to detect any evidence of unfairness.

ICC sentences Congolese war lord The International Criminal Court (ICC) sentenced Congolese war lord Thomas Lubanga Dyilo to 14 years’ imprisonment on 10 July. It is the first sentence handed down by the ICC, which recently celebrated its 10th anniversary. Lubanga became the first person convicted by the ICC on 14 March when he was found guilty of conscripting and enlisting children under the age of 15 years and using them to participate actively in hostilities. The Chamber, composed of Judge Adrian Fulford, Judge Elizabeth Odio Benito and Judge René Blattmann, also ordered that the time from Mr Lubanga’s surrender to the ICC on 16 March 2006 until 10 July this year should be deducted from this sentence. That means he will spend eight more years in jail.

Advocating for abolition of death penalty The International Bar Association’s Human Rights Institute (IBAHRI), senior members of the Moroccan legal profession and civic organisations supporting abolition of the death penalty held a closed consultation meeting at the British Embassy in Rabat on 11 July. They discussed the role of lawyers, and in particular bar associations, in advocating for abolition de jure of the death penalty in Morocco. “We very much welcomed the interest of, and the opportunity to engage with, Moroccan lawyers on the issue of abolishing the death penalty in Morocco,” IBAHRI cochair Sternford Moyo said. Stressing the importance of the involvement of the legal profession in bringing about abolition, he said: “Lawyers and

LAWTALK 801 / 3 AUGUST 2012

bar associations hold privileged knowledge of the national justice system and play an influential role in legal reform. Therefore it is vital that lawyers and bar associations engage in efforts to abolish the death penalty.” Morocco is one of five Arab states which have observed an unofficial moratorium on executions for over a decade (others include Algeria, Morocco, Tunisia, Mauritania and the Comoros). The last execution in Morocco was in 1993. The current King Mohammed VI has not signed any execution decrees since coming to power in 1999, however death sentences continue to be handed down. More than 100 prisoners are on death row. Morocco has a strong abolitionist movement, mostly led by the Moroccan Coalition Against the Death Penalty, established in 2003, which has seven member organisations, including the Moroccan Bar Association.

Darfur lawyers imprisoned The International Bar Association’s Human Rights Institute (IBAHRI) is concerned by the 1 July arrest and detention of four members of the Darfur Bar Association in Khartoum, Sudan. Government security forces arrested the head of the Darfur Bar Association, Mohamed Abdella Al-Douma, Mrs Rehab El-Fadel Sharif, Mrs Rashida Ansari and Mr Jibril Hamid Hassabou. They were arrested at a press conference where Mr Al-Douma was briefing journalists on the case of human rights activist Victor Bushra Gamal, who had been detained by Sudanese security forces for over a year. The Sudanese authorities have not given a reason for their arrest and detention. IBAHRI “finds the situation worrying, particularly as it is not the first time that such arrests and detentions of human rights lawyers by the Sudanese authorities have occurred”, IBHRI co-chair Sternford Moyo says. “We urge the Sudanese authorities to immediately provide reasons for the arrests and to respect Sudan’s international obligations, specifically those under the International Covenant on Civil and Political Rights.”

Hague Conference sets up regional office office.

The Hague Conference on Private and International Law has decided to establish an Asia Pacific regional

The new office will be based in Hong Kong and will become the Hague Conference’s second regional office. The first was the Latin American office in Buenos Aires. The Hague Conference is the world organisation for crossborder co-operation in civil and commercial matters. It develops and services multilateral legal instruments on private international law, commonly known as the Hague Conventions. A list of the conventions is at www.hcch.net/ index_en.php?act=conventions.listing. LT

LAWYERS COMPLAINTS SERVICE Lawyer issued pro forma invoices in trust account ‘clean-up’ Auckland lawyer John Holmes was found guilty of misconduct and fined after he issued pro forma invoices as a part of a “clean-up” of small trust account balances that were dormant. The New Zealand Lawyers and Conveyancers Disciplinary Tribunal said that although this was unlikely to have been of any significant benefit to the lawyer, the restrictions on handling client funds must be strictly observed in order to maintain public confidence in the legal profession. The tribunal said the case provided lawyers with a “timely reminder”, and that there must be “strict observance” of the relevant requirements. These are: “In the event any credit balance is held for a client, whether small or large, there must be an accounting to the client. Of course, a fee can be drawn, but only in the event that it is properly due in terms of the retainer first established. The account (and fee note, if any) must be delivered to the client. If the client cannot be located then the statutory requirement for payment to the Crown must be followed.”

The facts In June 2010 Mr Holmes deducted money, purportedly as fees, from dormant balances in his firm’s trust account. He created seven false pro forma invoices, totalling roughly $1,700, which were purportedly for additional attendances by him and others in his firm. The invoices were not sent to the clients nor did Mr Holmes seek authorities from the clients to deduct the fees. The dormant balances were all relatively small, the largest being $337.50. They had been sitting in the trust account for up to eight years, and contact with these clients had been lost. Mr Holmes had inherited some of these clients when he acquired another practice in 2006 and some were not

personal clients of his. Some of the files involved companies that had gone into liquidation. Mr Holmes cooperated fully with the Law Society investigation that revealed the deductions, and afterwards made changes within his practice and took other steps to remedy the situation. He located two of the clients and paid them the relevant balances, while cancelling the other bills and paying that money to Inland Revenue’s unclaimed monies fund.

The charge and response The Auckland Standards Committee that brought charges against Mr Holmes argued that he was guilty of misconduct for the unauthorised and non-compliant taking of client money. It said he had breached the following restrictions on the handling of client funds:

•

A lawyer who receives money for or on behalf of any person must hold the money exclusively for that person, and pay it to that person as he or she directs [Lawyers and Conveyancers Act 2006 (s110(1)(b))]. A lawyer who receives or holds money or other valuable property on a person’s behalf must account properly for it to that person (s111(1)). Fees cannot be debited from a trust account unless a dated invoice has been issued or the client has given a signed and dated authority [Lawyers and Conveyancers Act (Trust Account) Regulations 2008, reg 9(1)].

Mr Holmes admitted he hadn’t complied with those requirements but argued he was guilty only of unsatisfactory conduct. He claimed that for some of the stale balances he’d been justified in taking fees because there were costs on the timesheet that had previously been written off or not billed.

Philip Milne Barrister

Misconduct finding The tribunal found that Mr Holmes’s conduct amounted to misconduct, although at the lower end of the scale. Misconduct includes “a wilful or reckless contravention” of the statutory requirements or practice rules (s7(1) (a)(ii)). The tribunal said that although the lawyer had not had any dishonest intentions, he had been reckless in that he had simply not turned his mind to his obligations. In Mr Holmes’s favour, the tribunal accepted that he was an honest and diligent man, held in high regard by the legal profession, and with an unblemished record of 40 years in practice. It accepted that the clean-up exercise involved more “laziness than badness”. However, the tribunal also said it could not ignore that the lawyer had taken client money without authority, and did it through creating false and misleading documents. It said this was all the more worrying given his lengthy experience as a lawyer and trust account administrator. The tribunal also said it was troubled that he continued to justify some of his actions. The tribunal formally censured Mr Holmes and fined him $5,000. It ordered him to pay the Law Society $6,805 costs and to reimburse the Society $3,000 for its payment of the tribunal’s own costs. LT

DISPLAY ADS

CONTACT CHRISTINE WILSON christine.wilson @lawsociety.org.nz

Independent Resource Management Specialist Advice, strategy, advocacy, dispute resolution for your clients Waterfront Chambers Wellington 021 803 327 or PA 04 499 6653 philip.milne@waterfront.org.nz milnelaw.co.nz

LAWTALK 801 / 3 AUGUST 2012

L AW YERS COMPL AINTS SERVICE

Fine for breaching intervention rule

what her ex-husband had been doing with the relationship property.

Breaching the intervention rule has led to a $500 fine for an Auckland barrister (B). After finding B guilty of unsatisfactory conduct, the Lawyers Standards Committee determined that the breach was at the lesser end of the scale of offending.

On receiving information from the ex-husband’s counsel, B analysed it and prepared a list of issues that were still missing. The client was copied into these documents, whereupon she made her disillusionment with B clear.

A client of B complained about fees, about B working without specific instructions from her and that he did not have an instructing solicitor.

She then left B a telephone message requesting him to discontinue work on the matter and said they should meet. She followed that up around two months later with a letter expressing her disappointment at the way B had conducted the matter and saying that she did not agree with the fees charged.

The facts The client said he had instructed B to see if there was any settlement agreement possible between her and her exhusband. She wanted B to determine if there was a case against her ex-husband, the likelihood of success if they should pursue the matter and how cost-effective it might be.

Determination

B considered that he could not properly provide his client with advice until he was able to form a complete picture of the relationship property.

The standards committee requested further comment from B on the apparent lack of an instructing solicitor, but B remained silent. The committee obtained a copy of the client file and found no record of an instructing solicitor. The committee specifically referred to this issue in the Notice of Hearing and B again failed to comment. It found B had failed to comply with the intervention rule, breaching Rule 14.4 of the Rules of Conduct and Client Care.

As the matter progressed, it became clear that the ex-husband had various entities between which he moved funds. When B’s client became aware of those matters, she considered it was absolutely necessary for B to obtain disclosure to understand

The standards committee did not consider the fees to be excessive bearing in mind B’s involvement and the steps taken on behalf of the client.

As well as the fine, B was ordered to pay the Law Society $500 costs. LT

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

Admission under Part 3 of the Lawyers and Conveyancers Act 2006

Hawkes Bay Branch BRANS Belinda Anne Otago Branch MCKINNON Harriet Sarah Eveline

Waikato Bay of Plenty Branch CLEWS Laura DEMPSTER Megan Ann FRASER Andrea Elizabeth OBILLO-RODRIGUEZ Ivy Lou PAKI Bronwyn Huia PRAKASH Ashneil Rai STIRLING Duncan Takena

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006

Auckland Branch BRIGGS Debra Jane CORLETT Stephen James Canterbury Westland Branch

EBBORN Erin Mai Otago Branch GUEST Samuel Michael Dexter LARGE James (Jim) Douglas

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 9 August 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 801 / 3 AUGUST 2012

Lawyers must ensure they can fulfil all undertakings A lawyer (C) acting for the seller in a property sale was fined and ordered to compensate the buyer and his lawyer after she refused to honour her settlement undertaking when a dispute arose about GST.

The facts and the complaint The sale and purchase agreement had stated that the purchase price was “$480,000 plus GST (if any)”. The buyer paid a deposit of $48,000, and the balance was payable on the settlement date. As that date approached, however, the transaction was complicated by a series of amended settlement statements C sent out for the seller. A first statement sent four days before settlement omitted to require payment of GST. An amended statement sent three days later corrected the deposit figure but still made no reference to GST. A further email sent from C’s firm an hour later on the same day said the GST error had just been realised and so they were now attaching a third statement. This new statement was not, in fact, attached. The next afternoon, on the settlement date, C faxed the buyer’s lawyer her undertaking to transfer the title in the property through Landonline “immediately upon receipt of faxed confirmation of lodgement of settlement funds into our trust account”. Later that day, the buyer’s lawyer deposited the amount set out in the second settlement statement. A few minutes later C emailed him the third statement, having realised it hadn’t been sent the previous day. This increased the settlement figure by $72,000 – the GST on the purchase price. The buyer’s lawyer responded that having paid the figure in the second statement he now expected C to release the e-dealing and transfer the title. He said that in any case the seller wasn’t GST-registered and so couldn’t require GST to be

L AW YERS COMPL AINTS SERVICE paid, regardless of the terms of the agreement. C, however, did not release the e-dealing. She maintained that her undertaking had been based on the higher figure in the third settlement statement.

Lawyer fined after confronting opposing client

The lawyer for the buyer later agreed to pay the GST once he received a GST invoice from the seller. The sale was eventually settled three days after the original settlement date.

A Lawyers Standards Committee has fined a lawyer (A) $2,000 for speaking directly with his client’s ex-wife about the parties’ ongoing domestic violence and relationship property proceedings. In the process, A had also violated terms of contact specifically agreed to with the ex-wife.

The buyer’s lawyer complained to the Law Society on the buyer’s behalf that C should have honoured her original undertaking to transfer the title and that her failure to do so had cost his client further legal fees.

Finding and penalty C responded that she had been protecting her client and she denied breaching her undertaking. She said the buyer knew the purchase price was plus GST and she had informed his lawyer about the GST issue. Further, her settlement statements had included the expression “E&OE” (Errors and Omissions Excepted), which entitled her to amend them if there was a mistake. The standards committee, however, upheld the complaint. It said it had been understandable that the buyer’s lawyer had paid the figure from the second statement, given, among other things, that the third statement hadn’t yet been sent, C’s undertaking hadn’t specified a particular settlement figure or settlement statement, and the seller hadn’t been GSTregistered. As the recipient of the undertaking, the buyer’s lawyer was entitled to have any ambiguity or doubt resolved in his favour (Auckland Standards Committee 3 of New Zealand Law Society v W, High Court, Auckland, CIV-2-1-404-005509, Duffy J, 11 July 2011). The standards committee said it was C’s responsibility to ensure her undertaking could and would be fulfilled. It would have been sensible, it said, for her to have spoken to the buyer’s lawyer before she gave her undertaking, to check they were working from the same settlement figure. By not doing this, she had potentially relinquished control over the subject matter of her undertaking. The standards committee said lawyers’ undertakings were an integral part of registered land transactions, with most dealings now being registered electronically through Landonline. It said it was important that a lawyer acting for a buyer was able to have confidence that they could rely on an undertaking such as the one in this case, particularly when any delay could prevent another dependent transaction from settling at the same time. The committee noted that the NZLS Property Law Section had given guidance on undertakings in its E-dealing Guidelines (October 2008) and Property Transactions Practice Guidelines (September 2009). [Following this decision, new NZLS Property Transactions and E-dealing Practice Guidelines came into force on 9 July 2012.] The standards committee concluded that C had breached the Conduct and Client Care Rules, which require lawyers to honour all undertakings, whether written or oral, given to any person in the course of practice (Rule 10.3). Finding her guilty of unsatisfactory conduct, the committee censured her and fined her $1,000. C was also ordered to compensate the buyer in full for his additional legal fees resulting from her breach, which were $2,500 plus GST and disbursements. She was also ordered to pay $400 plus GST to his lawyer, as partial compensation for time spent preparing documents for the standards committee. Finally, the committee ordered C to pay $800 costs to the Law Society. LT

The complaint The ex-wife had obtained a protection order against A’s client. At the time of the incident the ex-husband was also defending his ex-wife’s application for an occupation order. In her complaint, the ex-wife said she had agreed that A and her ex-husband could visit a container on a lower block of land that the parties co-owned, to check for tools and other items. She said that A had not kept to the agreed area, and instead had driven up the driveway with her ex-husband towards where she was watching from a top paddock nearer the house. A had then got out of the car, approached the complainant, and spoken to her directly for three to four minutes while the ex-husband waited in the vehicle. The complainant provided a DVD and photographs of the incident. The complainant claimed that A’s conduct had been unprofessional, unnecessary, and an abuse of process, and that he had helped her ex-husband breach the protection order. In response, A said he had not entered or gone near the house and that the complainant had not needed to make personal contact with him. He claimed the complaint was vexatious.

The decision The standards committee noted that its role was not to decide whether the protection order had been breached but to decide whether A’s conduct had been appropriate. It found that by driving outside the agreed area with the ex-husband, A had breached his obligations to always act competently and take reasonable care (Conduct and Client Care Rules, Rule 3), and to promote and maintain proper standards of professionalism in his dealings (Rule 10). This conduct was also unacceptable measured against the standards of “competent, ethical and responsible practitioners” (B v Medical Council [2005] 3 NZLR 810 (CA) at 811). A had then aggravated those breaches by approaching the complainant and speaking to her directly and at length about the merits of the case. The committee said this had been highly inappropriate. A had communicated directly with another lawyer’s client, in breach of Rule 10.2, at a time when a protection order was in force and his client was sitting in a car very close by. The standards committee found this was also a breach of his obligation under Rule 5.2 to exercise his professional judgement within the bounds of the law, as he had been fully aware of the protection order. The committee found A guilty of unsatisfactory conduct and fined him $2,000. It also ordered him to pay the Law Society $1,000 costs. LT

LAWTALK 801 / 3 AUGUST 2012

WILLS Iordanis Voudouris (aka Jordan Voudouris)

RAYMOND WILLIAM WARD Would any lawyer holding a will for the above-named, late of 1815 State Highway 2, Pakuratahi, Upper Hutt, farmer, who died on 6 June 2012, aged 71 years, please contact Brenda McDonald, Legal Executive, Paino & Robinson, PO Box 40955, Upper Hutt 5140, ph 04 5272 252, fax 04 5278 557, email brenda@paino-robinson.co.nz.

Would any lawyer holding a will for the above-named, late of 30 Belmont Road, Paeroa, who died between 17 June 2012 and 18 June 2012, please contact Rachel Burrows, Alan Jones Law Partnership, Solicitors, DX BP68012 or PO Box 32249, Devonport, Auckland 0744, ph 09 445 6225, fax 09 445 4223 or email rachel@ajlaw.co.nz.

MISSING PERSONS

Gary William KEENAN

KENT PHILIP MARC SULLIVAN KERRY LYNDON PAUL SULLIVAN

Would any lawyer holding a will for the above-named, late of 19 Rowling Road, Kaiteriteri, Motueka, aged 66, who died 10 June 2012, please contact Kelly Seabourne of Jackson Russell Lawyers, PO Box 3451 Auckland 1140, DX CP 20520, ph 09 300 6926, fax 09 309 0902 or email:carolblackler@ jacksonrussell.co.nz.

Would any lawyer knowing contact details for the above-named, sons of Elaine Diane Payne (formerly Sullivan), deceased, late of Glenfield, Auckland who died on 30 June 1983, please contact John Rust at Butelaw Solicitors, Browns Bay, ph 09 476 4280, fax 09 476 4286, email john@butelaw. co.nz.

PRATAP SINGH Would any lawyer holding a will for the above-named, late of 28 Pandora Place, Pakuranga, Auckland, electrician, born on 3 November 1943, who died on 3 November 2011, please contact Vijay Naidu at Newton Law, Barristers & Solicitors, PO Box 27353, Auckland 1440, DX CP37501, ph 09 630 8022, fax 09 630 8045 or email vijay@ newtonlaw.co.nz.

EDNA WINIFRED NEWNHAM Would any lawyer holding a will for the above-named, late of Te Horo Beach, Otaki, who died on 5 May 2012 in Palmerston North, please contact Emily O’Donovan, Kapiti Law, DX RA61017 or PO Box 159, Waikanae 5250, ph 04 902 6700, fax 04 902 6701, or email: emily@kapitilaw.co.nz.

Fearon & Co 56x100 ad_BW.qxd:Layout 1

LEGAL SERVICES SITUATION VACANT

ENGLISH LAW AGENCY SERVICES SOLICITORS Established 1825

Fearon & Co specialise in acting for non-residents in the fields of Probate, Property and Litigation. In particular:-

REGULATION LEGAL TEAM – LEADERSHIP ROLE ≥

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The Commerce Commission’s purpose is to achieve the best possible outcomes in competitive and regulated markets for the long-term beneﬁt of New Zealanders. The General Counsel, Regulation Branch is seeking to appoint a Principal Counsel, to lead a team of lawyers. Reporting directly to the General Counsel, the Principal Counsel will contribute signiﬁcantly to our organisational reputation, and will be visible, proactive and trusted in all situations. Coaching others and developing their skills will form a key part of your day to day role. You will also be a sophisticated drafter and adviser, with excellent judgement in handling complex regulatory issues. The role requires: ≥

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Experience in one of the regulated industries – electricity, gas, airports, telecommunications or dairy – would be an advantage. For a copy of the position description, or to apply for this role, send your CV and a covering letter to work@comcom.govt.nz. Alternatively, contact Nicola Gee, Senior Human Resources Adviser on (04) 924 3795. Applications close at 5pm, Thursday 16 August 2012.

LAWTALK 801 / 3 AUGUST 2012

• Obtaining Grants of Representation for Estates in England and Wales, Channel Islands, Isle of Man and elsewhere and re-sealing Australian and New Zealand Grants of Representation • Administering English Estates • Buying and selling homes and business premises • Recovering compensation for accident victims • Litigation including Debt Recovery and Matrimonial Our offices are within easy reach of the London Airports and Central London Stations

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

LITIGATION

Martin Williams 00 44 (0)1483 540843

mw@fearonlaw.com

PROPERTY John Phillips

00 44 (0)1483 540841

ajp@fearonlaw.com

PROBATE

Francesca Nash 00 44 (0)1483 540842

fn@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

SITUATION VACANT GENERAL PROPERTY PRACTITIONER WANTED Paxton-Penman et al We are looking for a talented general property practitioner with approx 4+ years’ post qualification experience to join us. We are a unique firm specialising in property and commercial matters with offices in Auckland and Warkworth. If you are passionate about the law, have a great sense of humour and are committed to excellence then please forward your CV and cover letter in confidence to constance@ppetal. co.nz.

21/8/09

WILLS

SITUATION VACANT ARTHUR PERROT

Would any lawyer holding a will for the above-named, late of 4 Observatory Close, Whitby, Porirua, who died on 29 December 2006, please contact Stephen McKenzie, SPM Law Limited, PO Box 38 538, Howick, Manukau 2145, ph 09 274 8042, fax 09 274 8057, email stephenm@xtra.co.nz.

RIHARI TOHU HEKA Would any lawyer holding a will for the above-named, late of 92 Settlers Way, Okaihau, Northland, born 7 December 1935, who died on 20 March 2012, please contact Jenny Denley, Rick Williams Associates, PO Box 300748, Auckland 0752, ph 09 477 1837, fax 09 477 1836, email jenny@rickwilliams.co.nz.

LARRAINE BARR Would any lawyer holding a will for the above-named, late of 2/13 Ullswater Place, Half Moon Bay, Auckland, born 5 May 1947, who died between 16 June 2012 and 5 July 2012, please contact Siobhan O’Sullivan, Kemps Weir Lawyers, DX EP72013, Auckland, PO Box 62-566, Greenlane, Auckland 1546, ph 09 525 7711, fax 09 525 2811, email siobhan@ kempsweir.co.nz.

ROY STUART KENDRICK Would any lawyer holding a will for the above-named, aged 55 years, Commercial Manager, who died on 29 May 2012 at Middlemore Hospital, please contact Peter J Tatham, Franklin Law Limited, Solicitors, PO Box 43, Pukekohe 2340, ph 09 2370 226, fax 09 238 714, email petert@franklinlaw.co.nz.

Are you up for the challenge?

Manager Regulation, Reporting & Policy Auckland or Wellington Suncorp Life New Zealand is a key business in the Suncorp Group which is one of the largest financial service providers in Australasia with around 9 million customers and more than $28 billion funds under management. We are a life insurance specialist providing life and income protection services to clients across New Zealand under the well respected brands of Asteron Life and AA Life. This is a critical role for the Chief Risk Office function. This role will work closely with the CRO Office team and the business to drive consistency and effectiveness in the way the business identifies, assesses, manages and reports risks throughout the business. The successful applicant will have: • Management and leadership skills to drive change. • High levels of collaborative interpersonal skills and emotional maturity. • Demonstrated high levels of stakeholder management ability. • Extensive risk management, compliance, internal audit and quality systems experience with a commercial approach. • 5-10 years’ risk management and compliance experience. • A sound understanding of the ‘twin peaks’ approach to regulating a life insurer in NZ, including all relevant law relating to the business. • Experience with Boards and/or Audit committees • Outcome focused • Strong ethics and integrity • Advanced communication skills If you feel you have the required skills and would like to join our team, please forward your CV and covering letter by 19th August 2012 to: Email: applications@asteron.co.nz Subject: Manager Regulation, Reporting & Policy For a copy of the position description, please visit www.asteron.co.nz.

WILLEM VISSER Would any lawyer holding a will for the above-named, late of 110B Lochhead Road, Te Puna, Tauranga, aged 91 years, retired, born 13 September 1920, who died on 7 July 2012, please contact Claire Horler, Legal Executive, Kaimai Law Bethlehem, PO Box 16 010, Tauranga, ph 07 579 3313, fax 07 579 1560, email claire@klb.co.nz.

RATAI KAURI Would any lawyer holding a will for the above-named, aged 71 years, homemaker, who died on 17June 2012, please contact Ric Sinisa of Sinisa Law Ltd, PO Box 22853, Otahuhu, Auckland 1640, ph 09 270 2525, fax 09 270 8444 or email ric@ sinisalaw.co.nz.

LEGAL SERVICES

UK Private Client Services & Estate Administration

Cobbetts is a leading UK law firm based in Birmingham, Leeds, London and Manchester. Our private capital team provides sensitive, timely and thorough advice on a wide range of personal matters, including: • Administration of UK estates • Obtaining Grants of Representation • Contentious trusts and probate • Powers of Attorney • Settlements and Taxation • Wills For further details, please contact: Jennifer Morries on +44 (121) 2229368 or jennifer.morries@cobbetts.com

GROW YOUR CAREER WITH US Civil/Commercial Litigation; 4-8 yr PQE – Approachable partner, large firm quality of work in a smaller relaxed environment, career prospects, court time, client interface. Quality engagement and oversight from a highly reputable partner. This opportunity won’t last long. Ref: 30828 Commercial Property; 3-8 yr PQE – If you love what you do but have been thinking about a change, don’t go past this commercial property role. Work with a fantastic partner and cohesive, down-to-earth team and make the most of enjoyable, quality work. Life is too short to spend your days in a job you don’t love. Ref: 30223 Banking & Finance – Private practice and in house; we have it all covered! Currently recruiting for at least four separate roles, each with their own points of difference and offering the career progression you may be seeking. Don’t hesitate to contact me for a confidential chat about your career. Ref: 30590 To apply, please send your CV to aucklandjobs@momentum.co.nz quoting the relevant reference number. For further information in strict confidence, please contact Meryn Hemmingsen on 09 306 5500.

Alexia Loughran on +44 (121) 2229277 or alexia.loughran@cobbetts.com

AKL Level 12, AXA Centre, 191 Queen St

WGTN Level 8, Simpl House Cnr Willis & Mercer St

PO Box 105-735, Auckland

PO Box 11 003, Wellington 6142

www.cobbetts.com

P +64 9 306 5500 F +64 9 306 5511

P +64 4 499 6161 F +64 4 499 7171

Cobbetts LLP is a limited liability partnership

W W W. M O M E N T U M . C O . N Z

LAWTALK 801 / 3 AUGUST 2012

International Education Review Panel Fixed Term – Part time The Review Panel has a vacancy for a third panel member to replace a retiring member. This is a part-time position for a three-year term, to begin as soon as possible. The Review Panel considers whether an education provider has committed a serious breach of the Code of Practice for the Pastoral Care of International Students or has not satisfactorily complied with a sanction imposed by the IEAA. The position operates on an as needs basis, and as such it is difficult to estimate the time commitment required for the position. As a guide for nominees, five cases have been heard since August 2009. The operational procedures for the position will be set by

SENIOR SOLICITOR – COMMERCIAL TEAM LEADER Our client is an innovative, friendly, client-focused commercial law firm based on Auckland’s North Shore. The firm specialises in general commercial, franchising and trust law. They pride themselves on working collaboratively with their clients to provide sound commercial solutions and the best possible outcomes. The firm is sadly farewelling one of their highly respected Partners who is leaving the practice to pursue a career outside of the legal industry. As a result, an exceptional opportunity has arisen for a Senior Associate with 7–10 years’ PQE specialising in commercial law. The role will best suit a senior lawyer who is very ready to take on the challenge to grow this area of the business whilst developing your career along the way, with advancement potential in the future. This successful team has been involved with commercial matters ranging from general commercial/residential property through to apartment developments, stadium developments, joint venture arrangements, banking security, leasing and business park developments, company structuring and formation and general business sale and purchase advice. The optimum candidate for this role will be ambitious, commercially astute, have a strong client focus and proven leadership qualities. A professional approach together with the confidence to attract, build and maintain client relations will be key attributes that will come naturally to you. This unique opportunity is available for someone who ideally has a well-established legal practice within New Zealand, providing the possibility of bringing a transferable client base to this growing commercial team. Become an integral part of this highly successful, innovative team who works with quality clients and realises the importance of a healthy balance between work and lifestyle - the benefits here are impressive! Ref: ELR213 For further information in complete confidence contact Michelle Stewart, Director, 09 524 7543 or email jobs@epiclegal.co.nz, www.epiclegal.co.nz

the Review Panel. We are looking for a person who can contribute by providing high-quality legal advice. We need someone who has: • A law-related background • A high level of relationship management and/or dispute resolution experience • Excellent communication skills

Litigation Solicitor, 4-5 yrs’ PQE, Wellington

• An understanding of the education sector or an

This well-known and respected mid-tier law firm is seeking an experienced litigator to join its successful team. You will be a clever and talented litigator, with between 4-5 years’ post admission experience in commercial or civil litigation ideally with some exposure to insurance and construction matters. You will have had significant experience within a top legal environment in a civil or commercial litigation and dispute resolution role.

education background For further information please contact Dot Bach, phone 09 632 9511. More information on the Code of Practice and the requirements relating to the Code under the Education Act can be found at: www.minedu.govt.nz Applications close on 17 August 2012.

You will have court and mediation experience and be able to proactively manage and complete a file from start to finish. This will be an interesting and challenging role for the right person and an opportunity to gain invaluable litigation experience. For the right person this is a chance to become fully immersed in litigation, so would ideally suit someone looking to build on their existing experience with the support of accessible and experienced partners. We are looking to move quickly on this role and interviews are available immediately for the right people.

M I N I S T RY O F E D U C AT I O N Te Tahuhu o te Matauranga

The Ministry of Education has an Equal Employment Opportunity policy and is a member of the EEO Trust

www.minedu.govt.nz

For further information in strict confidence contact Ben Traynor or Clare Savali on 04 471 1423 or email admin@ nicherecruitment.co.nz Phone: +64 4 471 1423 Email: admin@nicherecruitment.co.nz www.nicherecruitment.co.nz