LawTalk Issue 803

LAWTALK

31 AUGUST 2012 / 803

FOR THE NZ LEGAL PROFESSION

NEW ZEALAND LAW SOCIETY NZLS EST 1869

TECHNOLOGY in the

COURTROOM

NEED RESEARCH? The NZLS Library, legal research and document delivery service is fast, efficient and thorough. Use us as your legal research provider.

For more information about our services: www.lawsociety.org.nz/home/for_lawyers/law_library/services

LIBRARY NEW ZEALAND LAW SOCIETY NZLS EST 1869

AUCKLAND: auckland@nzlslibrary.org.nz / 09 304 1020 WELLINGTON: wellington@nzlslibrary.org.nz / 04 473 6202 CANTERBURY: canterbury@nzlslibrary.org.nz / 03 377 1852

INSIDE

THE MAGAZINE

FEATURE: TECHNOLOGY IN THE COURTROOM

“We are aware young people do commit crimes but they need to be treated differently because they are vulnerable.”p. 18

“Unfortunately, CSI’s portrayal of forensic science is as accurate as the saturated colour-scape in which the murders take place.”

9

20

Doing the business on your business

Urgent need for international contract law

There are many strategies you can employ to grow your legal business...

12 Law firm of the future Simon Tupman comments on some of the issues and trends he believes New Zealand law firms will encounter.

14 Supreme Court clarifies rights of vulnerable employees

By MICHAEL QUIGG

In the case of Service and Food Workers Union & Ors v OCS Limited, the Supreme Court considered the rights of 50 cleaners...

p. 6

6

4

Technology and Juries and CSI

By RACHAEL BRECKON

There is an “urgent need” for uniform rules internationally on general contract law encompassing all relevant questions conceivable in a contractual business to business relationship...

CSI’s trademark high definition close-up shots of bright red lipped forensic scientists, who seductively inspect skin cells in petri dishes...

7

21

Courthouse screening now spread across NZ

Private International Law increasingly important

By ELLIOT SIM

By ELLIOT SIM

As travel and trade increase, and the internet makes it ever easier to communicate and trade between countries, lawyers must grapple with the complex issues of crossborder transactions...

26

4

TECHNOLOGY

5 COURTROOM National Unveiling eBench in the

By RACHAEL BRECKON

New Zealand’s District Court judges will be among the first in the world to use electronic means to process charges...

15 Apartment Sales and the Securities Act

Transcription Service well bedded in

8

By ELLIOT SIM

Wired Justice - the future court

The introduction of the National Transcription Service (NTS) to the New Zealand court system five years ago...

By RACHAEL BRECKON

To avoid stating the obvious, the future is unknown...

REGULARS

By BARRY ALLAN

The buyers recruited

by Blue Chip were not purchasing the apartments to live in, or even to rent as landlords, but as an investment scheme...

X-ray baggage machines and walkthrough scanners introduced to New Zealand courts have had a positive effect on safety...

10

17

18

24

28

People in the law

Letters to the Editor

Law Reform Report

Bookshelf

CLE

30 Lawyers complaints Service

31 Overseas

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

LAWTALK 803 / 31 AUGUST 2012

1

FROM THE LAW SOCIET Y WARREN PYKE

C

ourthouses, like all aspects of the justice system, must be modern institutions reflective of and receptive to social change. This issue of LawTalk looks at proposed changes to courthouses throughout New Zealand.

The government is considering closing some regional courthouses, and is looking at introducing electronic tools into court processes. While better technology promises to deliver increased operational efficiencies, and is to be welcomed, it will not be a remedy for all of the ills that afflict courthouse operations.

Courts are dynamic human environments, and the present threat to close some regional courts may undermine the efficiencies that technology promises to deliver.

While a statistical analysis may point to savings if some regional courts are closed, such a narrow view overlooks the costs that will increase as a consequence in other parts of the Ministry of Justice’s operations, to stakeholders and court users. For instance, central courts will require more courtroom space, staff and infrastructure, in order to manage the increased flow of work emanating from the closed regional courts. The Law Society has already received reports that, in some areas where earthquake proofing has closed regional courts, out of town hearings have caused major transport difficulties: for instance, the recent temporary closure of the Balclutha Court means lawyers and their clients must travel to Gore for jury trials, without the aid of public transport. In some instances, this has led to clients hitchhiking to court, or relying on lawyers to provide transport; some defendants seek to be arrested to get police transport.

Closing regional courts will impact on courts users’ ability to have family/whānau support them at hearings and trials. It is also an unfair

2

LAWTALK 803 / 31 AUGUST 2012

burden and inconvenience to victims, witnesses and parties in civil and family proceedings.

In addition, police will be deprived of the convenience of a local courthouse for the processing of arrested persons and the hearing of defended cases.

Courts provide a valuable hub for other services to the public, such as facilitating the witnessing and swearing of official documents, the filing of claims and informations, advice on disputes tribunal claims, marriage and civil union formalities and ceremonies, and face-toface resolution with experienced staff of issues such as failures to appear, warrants to arrest, and compliance with court orders. Loss of experienced court staff is also likely.

While Ministry of Justice data on courtroom utilisation for the year ending April 2012 may suggest some courtrooms are considerably underutilised, such bare statistics do not reveal the reasons for empty courtrooms and may be misleading. Closing courthouses in reliance on such statistics would be short-sighted. Much depends on the type of cases in a particular courthouse, the availability of other resources, such as human and technical resources, and the facilities otherwise available to keep that courtroom busy (such as the availability of judicial officers, prosecutors and counsel). The ministry’s statistics do not give a true reflection of the utility of regional courts. Therefore, the Law Society has asked the ministry for the opportunity to say more about proposed courthouse changes, in order to ensure that such changes enhance rather than diminish access to justice.

The committee asks lawyers to report their experiences by contacting the Courthouse Committee Secretary Jason Cooper. The postal address is 26 Waring Taylor Street, Wellington 6011, or email jason.cooper@lawsociety.org.nz.

Warren Pyke Convenor, Law Society Courthouse Committee

LAWTALK More than 12,000 copies of LawTalk are distributed each issue. The magazine of the New Zealand Law Society, LawTalk is sent to every lawyer in New Zealand who holds a current practising certificate. Although the number of lawyers with practising certificates varies, it is typically around 11,500.

Others who receive LawTalk include members of the judiciary, Law Society associate members, legal executives, Members of Parliament, media, academics and others involved in the legal services industry.

STREET ADDRESS: 26 Waring Taylor Street, Wellington Postal address: DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand EDITOR: Frank Neill Ph +64 4 463 2982 editor@lawsociety.org.nz WRITERS: Rachael Breckon Ph +64 4 463 2910 rachael.breckon@lawsociety.org.nz Elliot Sim Ph +64 4 463 2902 elliot.sim@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

Coming up …

Risk management The New Zealand Society for Risk Management Conference 2012 will be held at Te Papa, Wellington, on 6 and 7 September. Governance and Leadership in Uncertain Times – the courage to succeed is the conference theme. See www.eventuate. co.nz/risk/.

Lessons for lawyers on ADHD & Autism The ADD Trust is running its annual public seminar, an event which aims to provide useful information for lawyers and other professionals, in Wellington on 29 September. Lawyer Simon Buckingham is among the lineup of speakers at the event, which will be held at the Home of Compassion, Island Bay. The seminar theme is “How ADHD and Autism can screw up your life – yet still be an advantage”. See http://www. addnz.org.nz/.

Education law conference Woteva nxt! Legal and social challenges in education is the theme of this year’s Australia and New Zealand Education Law Association (ANZELA) conference, which will be held in Rotorua from 3-5 October.

The conference will explore a number of current and critical issues in this academic and professional area.

Keynote addresses by High Court judge Justice Kos, freelance journalist Tapu Misa and Sir Mason Durie are featured, and participants will come from New Zealand, Australia, South Africa and the United States. Subjects to be

considered include charter schools, cyber bullying, recent education law cases, school discipline, dispute resolution in the education context, the liability of educators for sexual abuse, the role of education in promoting and protecting human rights, the Law in Schools programme in New Zealand and commercialising of education.

See www.lawyerseducation. co.nz/shop/Conferences+ 2012/Australia+and+New+Ze aland+Education+Law+Assoc iation+Conference.html.

Legal process outsourcing The 2012 World Masters of Law Firm Management is presenting a seminar on Legal Process Outsourcing – The Real Story. It will be held in Sydney on 11 October.

Legal process outsourcing (LPO) is booming and having a profound effect on the delivery of legal services. No firm is immune. LPO offers opportunity to those who understand and embrace it, or poses a threat to those who ignore it.

However, there are significant pitfalls and challenges in implementing an effective LPO programme and no firm should dive in unprepared. See www. lawcouncil.asn.au/sections/legalpractice/events/world-masters. cfm.

Tourism and hospitality law The inaugural Asia/Oceania Travel, Tourism and Hospitality Law Conference will be held in Perth from 22-24 November. The speakers are senior and prominent legal counsel and other professionals from Australia and other countries in the region, including China and Japan. See www. lawconferences.com.au.

ISSN 0114-989X

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

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

• With nationwide coverage?

• We deal with ACC matters only and will not represent your clients in other areas.

LAWTALK 803 / 31 AUGUST 2012

3

Technology in the courtroom A sketch by William Swainson shows a newly-erected raupo courthouse at Petone, Wellington in 1839. Apparently it was blown down in 1847 by Wellington’s wind. Courthouses have been part of New Zealand for a long time. Like all institutions, technological development has made many things possible in courtrooms which could not be done in 1839. A number of recent developments make it timely to look at how technology is being used in New Zealand’s courtrooms and where it might lead us.

Unveiling eBench

BY RACHAEL BRECKON New Zealand’s District Court judges will be among the first in the world to use electronic means to process charges.

From 1 July 2013, eBench, a new technology that will allow judges to manage criminal cases with the click of a mouse, will have been rolled out in all the District Courts.

While the initial stage of introducing electronic document systems to the court is going to have minimal impact on lawyers, it is a crucial stage in laying the foundations for the future.

In order to get to the heart of this new courtroom technology, LawTalk met with the Minister for Courts, Chester Borrows, and Ministry of Justice staff involved in the project.

The detail presented by Mr Borrows and the ministry is summarised below.

eBench defined eBench is the electronic filing of police informations (charge sheets). These informations are currently handwritten on dot-matrix paper, with each charge then passed to judges to stamp, sign and process during hearings.

The multiple copies with client sentencing information and charges are then passed on to authorised people – including lawyers.

Department of Corrections staff and police will be able to upload documents to eBench, so they are immediately accessible when a judge brings up the name of a defendant.

Previous convictions and sentences will be available for the judge to view on the

4

LAWTALK 803 / 31 AUGUST 2012

computer for sentencing. When judges have made their decision, they will be required to fill in specified information boxes. Prompts are in place and these will let judges know if their selection is in conflict with the law. For instance, if the maximum community sentence is 400 hours and the judge selects 800 hours on eBench (in error instead of 80 hours), there will be a prompt telling the judge that the selection is not possible as it is higher than the maximum sentence available.

After the pleas, outcomes, future events, remand and sentencing have been decided, the judge will then press an ACCEPT button. Once the information has been accepted it is sent electronically to the registrar, who will print copies of the information for authorised persons, including lawyers.

This printed version replaces one of

the pieces of the dot matrix previously distributed to required third parties.

After the judge has pressed ACCEPT this information cannot be edited. Any necessary changes, due to error, will be noted and filed separately – as with current paper-based systems.

The scope of eBench All District Court-based police criminal prosecutions (86% of all cases) will be processed via eBench from July 2013.

It is intended that civil cases will be incorporated at a later stage.

Lawyer participation Lawyers’ participation in court procedures under eBench will remain the same. However, attorneys will now receive a printed document rather than a handwritten stamped document from

TECHNOLOGY IN THE COURTROOM

National Transcription Service well bedded in

BY ELLIOT SIM The introduction of the National Transcription Service (NTS) to the New Zealand court system about five years ago has improved the efficiency of the court system, according to General Manager Higher Courts, Paula Tesoriero.

The NTS, which was established in 2007, allowed court proceedings to be recorded and transcribed in real time by transcribers, with the information then being transferred and stored electronically. It was implemented in all Supreme Court proceedings, the High Court, most District Court sites and in some Environment Court cases.

Court hearings are recorded and transcribed by people based in two main transcription centres in both Wellington and Auckland or by a court

reporter in any of the 176 courtrooms which are connected to the network.

Ms Tesoriero said that during the 2011/12 financial year the service had provided over 36,000 hours of “realtime” transcription support, which was equivalent to 6,919 courtroom days.

“In addition, the NTS has transcribed nearly 54,000 documents noncontemporaneously. This amounts to approximately 5.5 million words transcribed over the last financial year by about 125 court reporters,” she said.

The benefits of courts working at speaking pace were a 15% overall reduction in High Court sitting time, a 26% reduction in evidence-only transcription time and a 14.4% overall reduction in District Court sitting time.

the court registrar.

Rollout

eBench and the judiciary

The rollout will begin in May 2013 with a two-month pilot which will start in Tauranga District Court, where judges will have to file paper records while also using eBench. The pilot will then be rolled out in different courts in two-week blocks: first to Christchurch District Court, then Auckland District Court, then, lastly Hamilton District Court.

It is a significant change for the judiciary as they will have to learn to operate the eBench system.

Standardised judicial benches will also be fitted across the country. These will have dual computer screens attached to a long jointed flexible steel arm.

The arm will stop the screen from constricting the judge’s preferred line of sight.

eBench development An in-house technology team at the Ministry of Justice has built (and is still building) the program. It is tailored specifically to the New Zealand judicial system. This also means the ministry will support users and administer future changes.

Data storage Data will be initially stored on a Wellington-based server and backed up every seven minutes by an Aucklandbased server.

Security The data will be accessed by sworn members of the judiciary through a digital encrypted signature.

Over these two months, the ministry aims to iron out any unforeseen problems before the nationwide launch on 1 July 2013.

Judges will also have a technical support person to aid the transition to eBench.

Legislative support Before 1 July 2013 all records will be maintained on paper. The new system is dependent on changes under the Criminal Procedure Act 2011 as the law currently requires all court proceedings to be on paper.

The savings The ministry says it will save 93,000 hours’ worth of work for police, judges and court staff, and a lot of paper – there are currently over 250,000 informations filed each year.

Other improvements included the ability to support long fixtures as well as improving storage and access to court audio, the decreased frequency of travel for judges’ associates and court reporters, and a saving of nearly $900,000 a year on outsourcing transcription suppliers.

“The National Transcription Service is recognised by the Treasury and Department of the Prime Minister and Cabinet as an example of an innovative solution to 21st Century challenges faced by the public sector,” Ms Tesoriero said.

The service was designed to share the workload of all court reporters, reduce court hearing times, improve the hearing process, ensure more consistent national standards and make it easier to access records. LT

eDuty - looking to the future Hamilton Family Court Judge Noel Cocurullo is working alongside a group of court staff to use their “creative juices” to develop an electronic document program to speed up urgent matters brought before the Family Court.

This program - called eDuty - is currently at a very early development stage, with a working prototype that is being trialled in the Waikato region to assess the feasibility of rolling it out nationwide.

Simply, eDuty is a single document that has all the possible outcomes for urgent matters brought before the Family Court. Through a deletion and selection process the presiding judge is able to very quickly choose their decided course of action at a click of the mouse – significantly reducing waiting time. LT

DISPLAY ADS

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

LAWTALK 803 / 31 AUGUST 2012

5

TECHNOLOGY IN THE COURTROOM

Technology and juries and CSI

By Rachael Breckon CSI’s trademark high definition close-up shots of bright red lipped forensic scientists, who seductively inspect skin cells in petri dishes, has changed jury expectations of evidence presented in court.

to a jury the brain will attach certain significance to that. Anything that goes in front of a jury that is visual needs to be agreed by both sides that it is not going to be more prejudicial than probative,” Dr Sandiford says.

Even back in 2006, United States research by criminology professors Gregg Barak and Young Kim and Felony Trial Judge Donald Shelton into what has been termed the “CSI effect” showed jurors have high expectations for forensic evidence.

“For instance, now you have 360 degree crime scene mapping these days, which is a brilliant piece of technology. You take it into a crime scene, it fires a load of lasers around. It measures distances, it takes real images, so you don’t have to take a jury to a crime scene.

Their sample of over 1000 pre-sitting jurors showed: 46% of jurors expect the prosecution to present some kind of scientific evidence; 22% expect to see DNA evidence in every criminal case; 36% expect to see fingerprint evidence in every criminal case; 32% expect to see ballistic or other firearms laboratory evidence in every criminal case.

Auckland-based The Forensic Group senior forensic science consultant Dr Anna Sandiford says: “If someone comes into a jury or even to sit through a trial they are amazed at how slow the process is and how much paper there is and the lack of toys.”

“Particularly for forensic scientists, who on the TV have got flash cars and gizmos and gadgets and things that go bing!”

Unfortunately, CSI’s portrayal of forensic science is as accurate as the saturated colour-scape in which the murders take place. “[There are] issues that have been caused by the CSI effect, like every case must have DNA in it, and if there is no DNA they say what’s gone wrong. When in fact DNA does not solve everything like fingerprints do not solve everything.

If a defendant accepts being at a crime scene then finding their DNA is not that surprising,” Dr Sandiford says.

Visual technology Technology also offers the increased ability for evidence to be displayed visually. For many jurors this will make it easy to engage with and concentrate on evidence, but the power of an image is not to be underestimated.

“Once you put a visual presentation

6

LAWTALK 803 / 31 AUGUST 2012

“

... Particularly for forensic scientists, who on the TV have got flash cars and gizmos and gadgets and things that go bing!

”

Dr Anna Sandiford “I think that could be really good, until you get to the stage when you can show a blood spray and that technology allows you basically to annotate that image. A DNA logo will come up and it will say this DNA belonged to whoever that may be. It could be the deceased or it could be a defendant.

“That’s going to be potentially problematic if that’s a mixed DNA profile, understanding what that little picture means. It can be quite a technical issue if the DNA profile is only partial, you need expert evidence to come in and talk about it.

“But you would need to offset the fact that the jury has already seen a picture of a crime scene and gone: ‘Ohhhh the defendant’s DNA has been found at the scene … must be guilty’.”

Cross-examining visual evidence Dr Sandiford uses the example of an animation of how a projectile exited a gun, travelled through a property and hit someone in the head, to illustrate further problems that can occur with visual evidence.

“That’s when you would start putting in provisos and say this is a possible scenario, this is not any different from our firearms expert standing up and giving this evidence verbally and then being cross-examined.”

“The only thing with an animation is that you can’t cross-examine the animation. You can only cross-examine the person who created it.”

Increasing complexity Ironically, rather than simplifying the process, the use of visual evidence could add an extra layer of complexity to jury trials.

The more technical the evidence shown to juries is, the “more data there is that needs to be assessed before you present your information,” Dr Sandiford says.

“What looks like a simple animation that’s going to run for three minutes in front of a jury could take weeks to put together.

“As soon as you have technology you are going to have to have a specially trained expert probably employed by the Crown (if we are talking criminal cases) and then whatever they produce needs to be (ideally) reviewed by an independent expert that will then have to be funded by legal aid,” she says.

Moving forward While, Dr Sandiford calls for careful and researched implementation of technology in the courts, she is an advocate for it.

“There is a range of issues, but that is no reason for not moving forward,” she says. LT

TECHNOLOGY IN THE COURTROOM

Courthouse screening now spread across New Zealand

By ELLIOT SIM X-ray baggage machines and walkthrough scanners introduced to New Zealand courts have had a positive effect on safety, according to the Ministry of Justice.

Fraser Gibbs, said the security programme worked closely with key justice sector partners including Police and Corrections to reduce security risks.

The Government put $9 million over four years for new court security features in its 2009 budget and the ministry aims to complete the rollout by the end of the 2012/2013 financial year.

“Since the introduction of scanners and X-ray machines, the number of potential weapons that people have tried to bring into court has fallen from one in every 77 people screened in 2008 to one in every 186 in 2012,” he said.

The screening process, conducted under the Courts Security Act 1999, was designed to reduce the chance of potential weapons being taken into court buildings as well as enhance professional image. Larger courts would see all court users go through a walkthrough metal detector and have their baggage X-rayed, with the exception of judges and uniformed police. It was also planned that smaller courts would have a walkthrough detector supported by wands.

The ministry’s acting general manager property and security,

Mr Gibbs said full-time screening was implemented in Auckland, Manukau and Palmerston North and X-ray baggage machines with walkthrough scanners were operational in Christchurch, Napier, New Plymouth, Whangarei, Waitakere, Wanganui, Auckland High Court, Gisborne, Hamilton, Hastings, Kaikohe, Porirua, Invercargill, Nelson and Greymouth.

Law Society’s Courthouse Committee convenor Warren Pyke said the development of the national screening system had been “very incremental”

but was working well in courts where it was operational.

“Security procedures have been evolving over the last 10 years and in the last three to four years it’s become a more permanent feature of court house operations. Everyone seems to have gotten used to it. We haven’t heard any real complaints,” he said.

Mr Pyke said in Auckland, court users were now used to the screening process and it was working well, but he was unsure of how other courts in the country used the system.

“I think it would vary up and down the country, like you see from time to time in Hamilton. They’ve got the gear but it’s often not used. It appears to be rolled out when a particular case gives rise to a security risk.

“I think the constraint of using it constantly like they do in Auckland is resource. Also some of the courts don’t lend themselves to the single point screening process very well,” he said. LT

Audio visual links

By Rachael Breckon A trial of online Family Court proceedings is set to begin in the South Island later this year.

The Ministry of Justice will run a trial through Oamaru and Southland where practitioners will be able to sit in their office and video call the judge for Family Court matters.

This will enable a lawyer and their client to attend a court hearing from the lawyer’s office.

Minister for Courts Chester Borrows says due to the distance between

courts in the region, lawyers have been very keen to take part in the trial.

The Family Court has been chosen for the trial because proceedings are closed to the public.

Looking forward, Mr Borrows says the ministry would like to extend the trial to an online judge for uncontested criminal matters. Before that can occur, the system needs to cater for the public’s right to know, a potential solution being to stream the court proceedings online and create a “virtual public hearing”.

“While audio visual links (AVL) offers huge potential, there are hurdles (both technical and financial) to be overcome, and we’re still working on the best way forward in this area,” Mr Borrows admits.

The extension of AVL will be enabled by a planned upgrade, with extension of the network to be phased in from early 2013. The bulk of AVL activity will be moved from the existing Integrated Services Digital Network environment to a national IP network. LT

LAWTALK 803 / 31 AUGUST 2012

7

TECHNOLOGY IN THE COURTROOM

Wired justice - the future court

By Rachael Breckon As the soundproof door swings shut behind Sarah Joseph she hears the trailing voice of her PA, mid apology: “…she’s in court at the moment. I can ask her to call you when the sitting is finished…”

Sarah’s slippers slide along the wooden office floors to her practice’s reception.

“The sitting finished early Ang. My next client will be videoing in at 1230. Please let me know when they are online.”

As a lawyer who entered the profession in 2020, Sarah is part of a generation of barristers that has never litigated in a courtroom. She doesn’t need to waste time travelling to and from court and often (sneakily) only dresses up her top half.

The courtrooms are reserved for jury trials and serious civil matters. Cases with long prison terms and complex evidence are the only reasons why people congregate in these buildings that stand as relics of a system once reliant solely on the written word, oral delivery and lots of paper.

The courtrooms themselves are equipped with paper-thin screens, audio and visual recordings, and platforms reserved for 3D crime scenes that play out different fact scenarios.

Jurors are required to constantly reflect on and question the mode of technology presenting the facts, alongside the facts themselves.

Back to real time To avoid stating the obvious, the future is unknown, yet the above scenario is highly possible. Evidence Technology Chief Technical Officer Ben Paterson describes a future court system that is based both in the virtual and physical worlds.

Mr Paterson has been at the forefront of introducing technology into Australian and New Zealand courts.

His work has included project management of the New Zealand Ministry of Justice Evidence Recording and Transcription Project, Victorian Department of Justice Digitisation Project, commissioning a digital video system for the High Court of Australia, the design of high-tech e-Court and Emerging Technology facilities for the Australian Federal Police and hearing room design and upgrades for Australian and New Zealand integrity agencies.

When asked about the future court, Mr Paterson sees audio visual links (AVL) playing an ever-increasing role in the court system.

He acknowledges that in more complex cases these services won’t completely replace face-to-face contact, for instance, in cases where the credibility of witness testimony may be queried.

In the courts Mr Paterson expects to see an increased use of visualisation tools to enable the case to be presented as efficiently as possible by focusing on, and clearly defining, the key issues and highlighting the areas that are actually in dispute.

Given the sheer volume and complexity of data, particularly in high-tech crime, “the ability to explain complex technical evidence to judiciary, jury and practitioners in a manner they can understand is critical,” he says.

“Legal practitioners and judiciary who can become conversant with courtroom technology facilities, audio-visual links and visualisation technology will have a unique advantage.”

8

LAWTALK 803 / 31 AUGUST 2012

This courtroom technology may include touch panels running interactive annotation and storyboard software, three dimensional modelling and visualisation devices and video conferencing systems which allow a secure, high-definition connection to mobile devices and desktops.

Behind the scenes, speech biometric and phonetic tools (voice recognition and speaker identification) are moving ahead in “leaps and bounds” and may change the dependency on the transcript as the official court record.

Mr Paterson argues that adoption of technology and innovative practices will make the courts more accessible and transparent and this will result in increased public trust and confidence.

Remote interpreting and witness testimony services are sure to be a feature of the future court, he says.

“Practically, this can take place via teleconference or videoconference, with wireless headphones supporting the delivery of simultaneous interpretation of court proceedings to multiple litigants or jurors [and] allowing family members to participate in the proceedings remotely.”

New Zealand leading the way Mr Paterson considers the New Zealand Ministry of Justice to be international leaders in courtroom technology.

“They have developed, implemented and continue to refine their courtroom technology standards to a very high level,” he says.

He uses the example of the evidence recording and transcription project, which commenced in 2004, and involved the upgrade of court technology to support the establishment of a National Transcription Service – resulting in significant improvements in efficiency.

“This project and the associated standards established a solid foundation for adoption of future services, for example, video conferencing between courtrooms and remand facilities,” he says. LT

WHAT’S NEW? New Document Scanner How good would it be to scan an article, photos, bills, letters or important documents while on the run?

A hardware and software manufacturer of digital capture products, Ambir Technology, has recently released a scanner called the Mobile Scan Pro 100, which makes it a reality.

The Mobile Scan Pro 100 is a wand and sheet-fed automatic desktop document scanner.

Using microSD storage and battery power, the mobile wand can be used anywhere to scan books, magazines, photos and notebook pages with a single swipe.

The information can then be scanned in full colour and sent directly in either JPEG or PDF file format.

Ambir product specifications indicate the scanner outputs images in 300, 600 or 900 dots per inch in almost six seconds, and the mobile technology is compatible with both Windows and Mac, providing there is a USB or SD card port.

Once the information is scanned, the images can be organised on your computer in a “click-and-drag” interface using Presto! PageManager9.

Three new iPad apps Osaka, Japan-based software maker Recosoft Corporation has released three iPad apps which can turn PDF documents into other file types.

The PDF2OfficeLite coverts PDFs to editable Text and RTF files, PDF2Officefor iWork allows PDFs to be changed to editable Pages,

Keynote and Numbers files, and the PDF2Office Business converts PDFs to editable word, Excell, PowerPoint and OmniGraffle formats.

PDFOffice2 converts PDFs by automatically recreating the intended construction and layout of a particular document, forming paragraphs, applying styles, regrouping graphic elements, extracting images and creating tables.

The app uses a unified PDF viewing, file management and conversion interface specifically designed for the iOS platform.

The iPad app includes the ability to rapidly extract text from PDF files, convert a specific range of pages and batch convert PDFs to a specific format with a single tap, which also has options for fine tuning of the conversion result. LT

Doing the business on your business There are many strategies you can employ to grow your legal business, but putting your effort into getting new clients may not be the best way forward.

research on their business and the industry that they are in. You can then better anticipate their needs; •

Adrienne Olsen of Adroite Communications says that it’s more important to focus on your top 10 clients or “low hanging fruit” than it is to go blind into the market searching for brand new clients.

communicate with your clients as much as possible, even about unrelated topics that might be of interest to them; and

•

set benchmarks and expectations.

“It takes four times as much money and effort to obtain new clients rather than focusing on those you already have. Your top 10 clients give a lot of value to your firm by providing challenging work. If you do the job right they will be loyal and refer clients to you. Referrals are still the main way firms get new work. Eighty percent of business comes from existing clients,” she says.

Ms Olsen says that often firms believe they know what their clients think, but this is a big misconception. She says it is important to ask them by establishing a feedback programme. The programme could include:

Ms Olsen suggests the following pointers for making a business plan for top clients: •

evaluate what you are doing for these clients now and identify opportunities to cross-sell other areas of law to them;

•

get to know your clients by doing

“You need to understand how your clients perceive you, what you are worth to them and what your clients want from you.”

•

client feedback forms;

•

debriefing with clients after a particular project to reinforce positives and find out what you could have done better;

•

stakeholder surveys to ascertain the perception of your firm in the marketplace; and

•

a phone call after any service to make

sure they are happy.

It is all well and good to establish a plan for increased communication and development, but many businesses just leave it at that and don’t follow through with their plan to the end, Ms Olsen says.

To make it happen, you should: •

set simple and achievable goals, “don’t complicate things”;

•

give the plan an “owner” so that person can drive the plan;

•

break down goals into component parts and delegate mini projects to staff; and

•

tick goal boxes and celebrate achievements, even if it is a minor victory.

If you work to add more value to your clients in the service you provide, referrals will flow. If you get business through a referral from an existing client, it is important to acknowledge it.

“Ring your clients and say thank you.

Give them a bottle of wine. Anything. Just make sure you acknowledge the favour.

Then it is more likely to keep happening,” Ms Olsen says. LT

LAWTALK 803 / 31 AUGUST 2012

9

PEOPLE IN THE LAW ON THE MOVE Dr Matthew Palmer has joined Thorndon Chambers in Wellington as a barrister sole. Before going to the bar, Matthew was Deputy Solicitor-General (Public Law), and before that Dean of Law and Director of the New Zealand Centre for public law at Victoria University. Matthew has extensive experience in public law and policy. He specialises in representation and advice challenging/ defending the decisions of government, Crown entities and public bodies. He particularly specialises in Treaty of Waitangi and constitutional matters and has a long-standing interest in the law and economics of regulation.

BlackmanSpargo Rural Law Ltd has promoted Sandy Van Den Heuvel and Rachel Petterson to the position of associate. Sandy and Rachel both specialise in rural law with a focus on assisting farming families.

Nicky Thomas has been made a partner of Morrison Kent in Auckland. Nicky has been with the firm for 11 years, practising property law. Morrison Kent

10

LAWTALK 803 / 31 AUGUST 2012

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, ph (04) 463 2982, fax (04) 463 2985, email editorial.lawtalk@lawsociety.org.nz. The usual editorial discretion applies.

practice in the UK where he worked as a senior legal consultant managing the legal teams of organisations such as Overture Europe and Yahoo! Europe.

Before this, he spent two years as the managing director of a retail marketing company. has promoted Meryl Duval and Nick Farrands to associate. Nick has been with the firm’s litigation team for five years. Meryl joined Morrison Kent in 2010 and and is a member of the firm’s commercial team. Meryl was a part of the team that successfully tendered for All of Government Legal Service Procurement Programme. Brendon Ng and Clare Martin recently joined the firm. Brendon joined as a solicitor in the property team working under Bryce Town and Clare as a solicitor in the asset management team under Simon Weil.

David Alizade has been appointed the new Head of Commercial at Baldwins Intellectual Property. David is a highly experienced commercial solicitor whose main practice areas include the commercialisation of intellectual property, commercial contracts and business formation and structuring (such as joint ventures and partnerships). He also specialises in information technology, broadcasting and telecommunications matters, as well as mergers and acquisitions (including due diligence). Before joining Baldwins, David worked for large law firms in New Zealand and overseas. He also ran his own legal

Dr Bryan Gilling and Campbell Duncan, who lead the firm’s recently appointed Māori legal services team, have been made partners of Morrison Kent in Wellington. Bryan has 22 years’ experience in the jurisdiction as historian, academic and lawyer, while Campbell has more than 20 years’ experience on the Waitangi Tribunal staff and in legal practice. Team

members include Katherine Porter (senior solicitor), Rebecca Sandri and Hanna Stephen (solicitors).

All team members have experience in Waitangi Tribunal inquiries together with Treaty claim settlement negotiations and aspects of Māori Land Law.

PEOPLE IN THE L AW Brendan Carr has returned to the firm as an associate in the corporate and commercial team in Wellington. Brendan worked at Morrison Kent from 1996 to 1999 before spending eight years overseas in England and the Cayman Islands. Brendan has most recently worked as in-house senior legal counsel at AXA New Zealand. He advises on commercial and corporate law.

Diana Thomas has joined Buddle Findlay’s Wellington office as a solicitor in the public law team. Diana specialises in public and administrative law, and takeover

Wendy Beverley

John Hanson

LAW FIRM NEWS Health law and health sector specialists Dr Jonathan Coates, Iris Reuvecamp, John Hanson, Anita Miller and Wendy Beverley have left Buddle Findlay to establish Claro, a national specialist health sector law firm. Claro’s health sector practice focuses on the intersection between the law and the provision, regulation, management, and funding of health and disability services. It has offices in Auckland, Wellington and Christchurch. Jonathan is Claro’s principal. His background is in civil and criminal law. He has specialised in health law and the health sector since the mid-1990s, and has both academic and practical experience in all aspects of health law.

Iris, who is special counsel with Claro,

regulation. Before joining Buddle Findlay, Diana worked at the Takeovers Panel and in the public and corporate law team at another firm. Diana recently returned to New Zealand after a period of travelling and volunteering in Africa.

PEOPLE Wellington barrister Kristy McDonald QC has been reappointed chairperson of the Real Estate Agents Authority for a further year.

Ms McDonald was appointed as the inaugural chairperson of the authority in July 2009 and has played a key role in its establishment. She has extensive experience as a litigation lawyer and has practised as a barrister sole since 1989. She was appointed Queen’s Counsel in 1999 and has served as

Iris Reuvecamp

the chairperson of the Mental Health Review Tribunal and as a member of the Removal Review Authority. In 2008 she was appointed chairperson of the Judicial Control Authority for Racing.

The Real Estate Agents Authority is the regulatory body for the real estate industry, created by the Real Estate Agents Act 2008.

David Foster, director of the Tauranga-based Harris Tate Ltd, was re-elected chair of the Franchise Association of New Zealand (FANZ) board at its first meeting following the association’s annual meeting in July. As well as chairing FANZ, Mr Foster is the association’s co-ordinator for the Bay of Plenty and Waikato regions. He is a frequent speaker and author on franchising matters and is also a Notary Public.

Dr Jonathan Coates

has specialised in health law since 2001. Before joining Buddle Findlay’s health law team, she worked for a large District Health Board as senior legal counsel. At Claro, Iris continues to work closely with a range of public and private health sector clients in both an advisory capacity, and on litigious matters. Iris has particular experience working with District Health Boards, and a strong interest in the aged care and mental health sub-sectors. John, who is special counsel with Claro, has extensive health sector experience.

He advises District Health Boards and private providers of healthcare on commercial contracting arrangements and significant procurement projects.

John also advises clients in relation to commercial research projects, governance, and specific health sector related issues. Before joining Buddle Findlay, John was general counsel for a large District Health Board.

Anita Miller

Anita, who is special counsel with Claro, is a health law specialist and an experienced litigator. She also advises on a wide range of issues relating to the provision of health services, including consent to treatment and incapacity, obtaining urgent treatment orders and health information privacy. Anita specialises in the regulation of health professionals and advises on the Health Practitioners Competence Assurance Act. As well as having extensive health law experience, Claro’s consultant Wendy is also a registered nurse and has several years’ experience in senior management positions in the health sector. Wendy has spent a considerable period seconded as in-house legal counsel for District Health Boards. She advises on medico-legal issues, privacy and information sharing, clinical and corporate governance, legal compliance and other matters relating to patients’ rights. LT

LAWTALK 803 / 31 AUGUST 2012

11

EFFECTIVE PRACTICE The law firm of the future The central North Island has become an important venue in the world of legal practice management.

Near the end of each year lawyers and thinkers on how legal services delivery is developing gather from around the world in Ohakune or Turangi to look forward, exchange ideas and develop strategies to cope with the impacts of fast-changing client expectations.

The forums are the brainchild of professional services consultant Simon Tupman. This year’s forum will be held at Tongariro Lodge in Turangi from 1618 November. The speakers will include Legal Futures editor Neil Rose from England, Valorem Law Group founder Patrick Lamb from Chicago, Holland Beckett partner Bill Holland from Tauranga, Zeopard Think manager Jennie Vickers from Auckland, barrister Greg King from Lower Hutt and dentist Michael Reardon from Auckland.

Further details are available from www.futurefirmforum.com.

LawTalk asked organiser Simon Tupman to comment on some of the issues and trends he believes New Zealand law firms will encounter. His response: “Law firm leaders often ask me what the law firm of the future might look like in a few years’ time. While I cannot predict the future, there is much that lawyers and law firm managers can do to create it. However, their success may depend on how well they respond to

some of the key pressures facing New Zealand firms today. Many of these ‘pressures’ have been exacerbated due to the sluggish economy. For example: “The need to offer more for less.

The economy has affected everyone’s spending – in-house counsel, business and private clients. Law firms who can deliver better and more accessible legal services at a lower cost – ‘more for less’ – will be better placed to weather the downturn. Those firms that learn from, and adapt successful law firm innovations in places like the UK and USA will benefit the most.

“The commoditisation of legal services. As UK author Richard Susskind has noted in his prophetic book The End of Lawyers?, law firms need to rethink their approach to delivering legal services beyond the traditional ‘bespoke’ approach, especially as the market demands it. Already, many law firms have standardised, systemised and packaged many aspects of their service and this, he predicts, will continue.

“The growth and impact of technology. Too many lawyers believe they are immune from technological developments affecting the rest of society. Indeed there are many law firms in New Zealand who don’t even have a website! Yet there have been a number of developments that are facilitating easier access to, and management of, legal services and

impacting significantly on the way lawyers practise such as: •

high-definition desktop video conferencing;

•

the availability of online business and personal documentation for a fixed fee; and

•

the development of new products such as the iPhone and new practice management software giving greater flexibility to how lawyers operate.

“There is an old saying: ‘events beyond our control will impact on our future; events within our control will shape our future.’ In spite of a sluggish economy, I predict good times are just around the corner for those firms who are alert to these pressures and take advantage of the opportunities they present.”

Sole practice is most common Information provided to the Law Society shows that at 1 August 2012 New Zealand had 887 law firms with more than one practising certificate holder (counting all branches together) and 936 firms with only one practising certificate. This would suggest that of our 1,823 separate law firms, 51% are sole practices.

On a practising certificate basis, 7,215 lawyers were in private practice in a firm. This was 62.9% of all practising certificates issued by the Law Society.

Just over one-fifth of all lawyers in private practice work for one of nine law firms:

NEED TO CHANGE PRACTICE MANAGEMENT SOFTWARE? NO PROBLEM. CHOOSE THE FULLY SUPPORTED, HERE-TO-STAY KIWI OPTION. IMPORT YOUR DATA NOW to the proven software that evolves with your practice CONTACT US TO ARRANGE A FREE DEMONSTRATION



0800 10 60 60 | juniorpartner@thomsonreuters.com | www.jpartner.co.nz

12

LAWTALK 803 / 31 AUGUST 2012

TO GROW A LOYAL CLIENT BASE, USE A LOCAL PRACTICE MANAGEMEN

EFFECTIVE PR ACTICE

New Zealand law firms by size, 1 August 2012 (PC = Practising Certificate) Number of PCs

Firms

PCs

% Firms

% PCs

Over 100

9

1,465

0.5%

20.3%

50 to 99

4

250

0.2%

3.5%

20 to 49

26

734

1.4%

10.2%

10 to 19

86

1,107

4.7%

15.3%

6 to 9

120

860

6.6%

11.9%

2 to 5

642

1,863

35.2%

25.8%

1

936

936

51.4%

13.0%

TOTAL

1823

7215

100.0%

100.0%

What’s in a name?

Sue Grabbit & Run, Payne & Suffrin … jokes about law firm names have been around for a long time. Typically New Zealand law firms, mostly being partnerships, have gone for the last names of the founding partners. The main variation to what can be described as the “traditional” naming method is the addition of “and” before the last name.

While it might be regarded as more of a Trivial Pursuits topic, it is still interesting to reflect on how New Zealand’s legal services providers choose to name themselves.

Analysis of the name structure of New Zealand’s 1,823 law firms (including sole practices) shows that almost half still use the traditional format of a string of names or the name of the sole principal.

In fact, the analysis shows that apart from a few novel and imaginative names, we’re quite conservative when it comes to the ways New Zealand law firms name themselves:

New Zealand Law Firm Name Structure, 1 August 2012 Nomenclature

Number

% Total

Name(s) only (A B C)

783

43%

Name(s) with “and” before last name (A B & C)

85

5%

“Law” (Name Law)

269

15%

“Limited” (Name Ltd)

188

10%

“Lawyer(s)” (Name Lawyer)

99

5% 5%

“& Co” (Name & Co)

94

“Legal” (Name Legal)

57

3%

“& Associates” (Name & Associates)

55

3%

All Other forms

193

11%

Total

1823

100%

What about Survey Monkey?

Effective Practice continues its 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.

“Survey your clients to find out what they think about the service your firm provides.” Good advice, but how do you do the survey? There’s no substitute for face-to-face discussion, but what if you need data from 50 or so clients?

If you’ve ever participated in an online survey, there’s a good chance that you’ve used a service called Survey Monkey. Based somewhere in the United States, this is one of the most user-friendly research tools around.

It’s actually free if you’re planning a small survey (fewer than 10 questions and to be completed by fewer than 100 participants). To get this, go to www.surveymonkey.com and register for the “Basic” package. Other, more

sophisticated, options are available and these require some expenditure. The “Select” package costs NZ$420 a year and allows the posing of an unlimited number of questions to up to 1,000 respondents a month. “Gold” is NZ$475 a year, with unlimited questions and unlimited respondents.

Registration is necessary (even for the free option) as Survey Monkey keeps the results in a special passwordcontrolled section. Only you can view the results of your surveys, unless you want to give permission to others to view progress.

Once you’ve signed up, Survey Monkey provides a selection of templates to assist with framing questions. If you’re interested in assessing client satisfaction, for example, a Customer Satisfaction Survey Template might be a good start. The system is American, so a bit of New Zealandisation may be required, but setting up or adapting a survey is simple and intuitive.

If you’ve never carried out research before, there are a couple of important things to remember: If you ask a question and you get a particular answer, what will that tell you? Always test the survey on someone. And, keep it short! People prefer to select options rather than write long essays giving their opinion and views on a matter.

Once you’ve got your questions together, Survey Monkey provides a number of ways in which the survey can be carried out. You can place a link on your website, send an email to the people you want to respond or place the entry point on Facebook. To email the survey, you load email addresses into Survey Monkey and it will send an email to each with a link to the survey at a time set by you.

As soon as people start responding to the survey you can view the results.

These are presented in an easy-tofollow format and may be downloaded if required. Detailed analysis is not possible with the Basic option, although the presentation of results is sufficient for most people who use this. If you want to be able to crosstab (eg, find how all the people responding in a particular way to one question responded to another question) it is necessary to purchase one of the packages.

If you are considering finding out what your clients think and you don’t want to hire market research assistance, Survey Monkey is definitely worth investigating. LT

LAWTALK 803 / 31 AUGUST 2012

13

FROM THE COURTS Redundancy – rights of vulnerable employees clarified by the Supreme Court By michael quigg* In the case of Service and Food Workers Union & Ors v OCS Limited [2012] NZSC 69, the Supreme Court considered the rights of 50 cleaners (vulnerable employees) to bargain for redundancy entitlements under part 6A of the Employment Relations Act 2000 in a “contracting out” situation.

which states that the section applies only if:

Part 6A provides protections for vulnerable employees whose work falls into certain categories, of which cleaning services is one. One of the most important of these protections is the ability for such employees to “transfer” their employment (on the same terms and conditions) to a new employer who will be performing the work of their previous employer.

or

When their current employer (the incumbent cleaning contractor at Massey University) lost its contract to another firm, the 50 employees all elected to transfer their employment to the new employer, OCS. After working for a period the employees were informed that OCS intended to make changes to their current terms and conditions of employment, which if not agreed to, might result in the redundancy of a number of employees.

Part 6A of the act provides that employees who have transferred to a new employer have a right to bargain for redundancy entitlements with their new employer if they are to be made redundant. Part 6A provides that if agreement cannot be reached then the employees have a right to have their entitlements determined by the Employment Relations Authority. This right is, however, subject (among other things) to paragraph (1)(c) of s69N

14

LAWTALK 803 / 31 AUGUST 2012

“the employee’s employment agreement— (i) does not provide for redundancy entitlements for those reasons or in those circumstances;

(ii) does not expressly exclude redundancy entitlements for those reasons or in those circumstances.”

The employees in this case were all party to a collective agreement which provided that “The parties to this employment agreement agree that no claims for redundancy payments will be made as a result of loss of employment due to downsizing of client contract or loss of client contract”.

There were two issues to be decided by the Supreme Court. First, whether s69N(1)(c) could be interpreted to allow employees to bargain for redundancy entitlements where such entitlements are expressly excluded. Second, whether the exclusion of any claims for redundancy payments in the collective agreement excluded bargaining for any form of redundancy entitlements.

Decision: First Issue The Supreme Court upheld the decision of the Court of Appeal that s69N(1)(c) could not be interpreted to allow employees to bargain for redundancy entitlements where such entitlements are expressly excluded under the employment agreement.

The Supreme Court considered that the employment agreement in this

Michael Quigg

case expressly excluded “redundancy payments” – they being a form of redundancy entitlement. It rejected the argument that because redundancy entitlements were excluded, the employment agreement did not provide for redundancy entitlements and so the employees satisfied subpara (i) and therefore para (c), and were able to bargain for redundancy entitlements.

The Supreme Court stated that this interpretation would have the effect of making subpara (ii) redundant and that Parliament could not have intended this result. The Supreme Court (concurring with the Court of Appeal) held that to satisfy s69N(1)(c) the employee must show not only that there is no provision for redundancy entitlements in the employment agreement but also

FROM THE COURTS that the employment agreement does not expressly exclude redundancy entitlements.

Second Issue The Supreme Court, however, reversed the decision of the Court of Appeal with regard to the second issue.

The Court of Appeal held that the exclusion of “redundancy payments” in the collective agreement meant that all redundancy entitlements were excluded. The Supreme Court found that the exclusion of redundancy payments in the collective agreement only precluded bargaining for monetary redundancy payments. The Supreme Court found that the employees were still entitled to bargain for non-monetary redundancy entitlements. The act defines “redundancy entitlements” in Part 6A as including redundancy compensation. The Supreme Court

stated that this clearly demonstrates that redundancy compensation can take forms other than payment of monetary compensation, such as retraining.

The Supreme Court found that the requirement that the exclusion of redundancy entitlements be express was significant and that only forms of redundancy entitlement that are expressly excluded cannot be the subject of the bargaining regime. The Supreme Court did not consider that the Court of Appeal was correct in its conclusion that the fact the collective agreement addressed the issue of redundancy entitlements precluded bargaining for a form of redundancy entitlements not expressly excluded.

The Supreme Court found that the exclusion of some redundancy entitlements does not exclude all.

Accordingly, the employees in such a situation are still entitled to bargain

for non-monetary redundancy entitlements; eg, retraining. It is a decision that highlights the need to scrutinise the wording of the particular employment agreement(s) in the context of the prevailing legislation.

A Working Party (including NZLS representatives) has been undertaking a review of Part 6A of the act as a result of a legal requirement in the legislation to do so. There has been public criticism of the drafting of the section.

It is understood this criticism, this judgment, and the decision in Doran v Crest Commercial Cleaning Ltd will be considered by the Department as part of the Review. *Michael Quigg is convenor of the Law Society’s Employment Law Committee and a partner of Quigg Partners. He was assisted in writing this article by Nick Logan of Quigg Partners.

Apartment Sales and the Securities Act

By Barry Allan* The Supreme Court in Hickman v Turner & Waverley Ltd [2012] NZSC 72 has held that, despite the clear exemption in s5(1)(b) of the Securities Act 1978 for those who offer Barry Allan real estate to the public, developers can still breach that act and lose their sales contracts. In three separate projects, the developer had financial arrangements under which it had to sell a substantial number of apartments before its lender would fund the project. Direct marketing and sale by the developer of the apartments would have attracted the statutory exemption.

In each case, however, the developer did a deal with Blue Chip, a company which specialised in marketing property investments. Blue Chip would underwrite the sales of the apartments in exchange for an underwriting fee.

Thus Blue Chip took on the task of

finding buyers for the apartments.

The lenders were made happy, provided the funds and the projects commenced.

The Blue Chip marketing strategy and resulting contracts were the downfall for the developers. If Blue Chip had simply found buyers who wanted the apartments to occupy, the Securities Act would not apply. Instead, as the Supreme Court noted repeatedly, the buyers recruited by Blue Chip were not purchasing the apartments to live in, or even to rent as landlords, but as an investment scheme. Throughout the judgment, the court referred to the supposed purchasers as investors. As recognised in GE Custodians v Bartle [2011] 2 NZLR 31, it was a particularly bad investment.

There were variations in the investment products, but they shared essential features. The investor would pay for an apartment, often using money borrowed from a third party.

The family home would be used to secure this borrowing. The developer would sell a specific apartment to the investor. Blue Chip would pay

the investor a fee (which the court said was in the nature of interest).

This would normally not cover the borrowing costs. Blue Chip would have rights to either force a sale or take over the apartment and sell. The court did not focus on these differences.

Virtually all capital gain would go to Blue Chip. Importantly, Blue Chip would have obligations to reimburse investors for money paid to the developer under the agreement to buy the apartment.

Because the substance and reality of the transaction was not about making an investor into an ordinary purchaser of real estate (from the investor’s point of view the apartment was of “peripheral significance”), the s5(1)(b) exemption was not engaged and the focus was on whether Blue Chip was the issuer of debt securities to the public. If so, s33 Securities Act required a prospectus and, often, investment statements. Noncompliance makes any debt security void. The parties agreed there was no prospectus and the Blue Chip marketing was an offer to the public.

LAWTALK 803 / 31 AUGUST 2012

15

FROM THE COURTS A debt security is defined as “an interest in or right to be paid money that is, or is to be deposited with, lent to, or otherwise owing by, any person”.

Everything turned upon whether money was “otherwise owing by” Blue Chip. The investors had not paid any money to Blue Chip: their money went to the developers, but Blue Chip had obligations to pay money to the investors by way of reimbursement and fees. The developers argued that the definition required the money in question to be payable by the person to whom it had been paid, such as the obligation on a finance company to repay money invested with it.

The court noted that our legislation is aimed in the “same general direction” as American and Australian legislation, which feature “extremely broad primary provisions”. It also noted that the Court of Appeal in Culverdon Retirement Village v Registrar of Companies (1996) 1 BCSLR 162 saw the phrase “otherwise owing” as having the widest possible ambit. Instead of a close, technical analysis of the wording, the court took

a broad-brush approach, saying that the obligations owed by Blue Chip were “rather like” those of a borrower and thus “otherwise owing”. The essence of the transactions was that they meant Blue Chip was obtaining finance from the public, largely to assist Blue Chip to obtain the rent and profits from the apartments. Thus the investment products were debt securities.

The court took a similar non-technical approach in deciding that the money paid by the investors was received by the developers on behalf of Blue Chip. That made Blue Chip the issuer of the debt securities, and thus the responsibility fell on it to register a prospectus. This approach, said the court, was justified by the legislative purpose of protecting “the public”. The court also held the developers were issuers.

The relationship between Blue Chip and the developers was what led the court to hold the agreements for the sale of the apartments unenforceable. In reaching this conclusion, the court took the same broad, purposive approach. It accepted that “strictly speaking” Blue

Defensive tactic guidance note supported The Law Society says it supports an initiative by the Takeovers Panel to issue a guidance note on defensive tactics by target companies.

In its submission on the proposal, the Law Society says it is particularly relevant in light of the trend for offerors to seek to impose a “laundry list” of conditions that are designed to restrict the activities of the target company while a company is “in play”.

“Whilst the proposed guidance note is being prepared during a period that has been characterised by very low levels of takeover activity, guidance of this sort should be of particular assistance in the event of the hoped for upturn in the level of takeover activity,” it says.

“In particular, we are pleased to see that the panel continues to help target company boards delineate between an (illegal) defensive tactic and ‘business as usual’ – as well as providing further guidance about the manner in which the panel may exercise its discretion by granting approvals under rule 39 of the [New Zealand Takeover] Code.”

The submission says that providing

16

LAWTALK 803 / 31 AUGUST 2012

guidance on the delineation and the manner in which the panel may be prepared to grant approval will help market participants to appreciate that a code company’s need to be flexible and adaptable to market circumstances affecting its core business should not be a hallmark of defensive tactics.

Implementing the panel’s proposed changes to the code to prevent the invoking of conditions that restrict the target from carrying out its core business will further reduce the present level of uncertainty for directors of target companies in this area.

Legal Salary Survey result progress Analysis of the information collected in the New Zealand Law Society/ Momentum Legal Salary Survey 2012 is almost completed. The survey was carried out in June by the Law Society and legal recruitment specialists Momentum. It received an excellent response from lawyers around New Zealand. Reports on the findings will be carried in LawTalk and a detailed report on survey results will be available for free downloading. LT

Chip was not agent for the developers (it was an underwriter and their contract denied any agency relationship) but “looking at the substance” it was their agent “in the rather different sense of acting on their behalf in the marketing of the apartments” and soliciting offers from the public to buy the apartments.

Although this alone was not enough to impute Blue Chip’s conduct to the developers, they knew Blue Chip would be marketing its packages in association with the apartments, and knew the terms of the packages. Thus “in that broad sense” and having regard to “policy” the developers “authorised Blue Chip to do exactly what it did do” – market the apartments through the use of the Blue Chip products. If Blue Chip had been the vendor itself, it could not have enforced the contracts: policy dictated that the use of separate companies made no difference.

The court found further ground to invalidate the sale contracts. The arrangements between the investors and Blue Chip were void by s37. The developers had contractually insulated themselves from Blue Chip; that could not affect the operation of the act.

Because the Blue Chip deal and the apartment purchase were inextricably linked in the minds of investors, this also justified the court in striking down the apartment sale contracts.

One last point is worth noting. Justice Tipping provided a different justification for holding the sale contracts invalid.

He employed the common law doctrine of tainting, which allows an ancillary contract to be rendered unenforceable if the contract to which it is ancillary is illegal, on the basis of the close association between the two. The sale contracts here were a necessary part of a composite arrangement with the illegal Blue Chip investment contracts, and assisted the implementation of those contracts. This rendered the sale contracts equally unenforceable, without any need for the third party developers to be aware of the illegality of the Blue Chip contracts. One can only wonder whether the investors borrowing contracts with the third party lenders might equally be seen to be tainted. If so, that would provide a powerful weapon to escape liability for the funds borrowed to get into the scheme. * Barry Allan is a former litigator who now teaches contract, tort and civil procedure at the Faculty of Law, Otago University.

LE T TERS TO THE EDITOR

Bail Act I was somewhat surprised to notice recently that the Law Society had made a submission to the Law and Order Select Committee strongly opposing the government’s proposed changes to the Bail Act. This follows on from strident opposition by the Society in 2010 to the Sentencing and Parole Reform Bill, popularly known as “three strikes”.

I was under the impression that in commenting on proposed legislation, the Society limited itself to practical matters – how the bill would work, or not work “at the coalface.” That is entirely sensible and understandable, since it is lawyers and the judiciary who will have to work with the end product of the legislative process.

However on these two occasions at least – I assume there are others – the Society has presumed to make a submission on behalf of the majority of lawyers on the wisdom of government policy behind the bills, not how they would work in practice.

How did the Society conclude that a majority of its members were opposed to the policy behind either of these bills?

Although I have only recently renewed my practising certificate, I have kept up with LawTalk. Nowhere have I seen any kind of survey of opinion or even an invitation to self-select and register an opinion. Did I miss something?

In my view, unless the Society can be reasonably sure that it speaks for the majority of lawyers, it ought not to make any submission at all on the policy behind bills. It should confine itself to comment on possible practical problems which the drafting of them has created or may possibly create.

David Garrett Barrister, Kaukapakapa

Editor’s Response The Law Society’s statutory functions include assisting and promoting “for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand, the reform of the law” (s65(e), Lawyers and Conveyancers Act 2006). Although most Law Society submissions on proposed legislation are confined to matters of legal principle, drafting or technical matters, the Law Society also has an obligation to ensure that legislation meets appropriate benchmarks – notably fundamental rights and freedoms (including those in the New Zealand Bill of Rights Act 1990), constitutional principles, and consistency with international law and conventions.

In its recent submission on the Bail Amendment Bill, the Law Society said that the proposal to reverse the onus of proof in certain bail provisions conflicted with rights affirmed by the New Zealand Bill of Rights Act 1990, and conflicted with the presumption of innocence which has been described as the “golden thread” of the common law.

The Law Society also submitted that the bill is in direct conflict with the United Nations Convention on the Rights of the Child. The submission was prepared with input from several of the Law Society’s specialist committees, and was approved by the convenor of the Law Society’s Law Reform Committee, Professor Paul Rishworth, and the President, Jonathan Temm. (The submission is at www.lawsociety. org.nz/__data/assets/pdf_file/0006/53781/Bail_ Amendment_Bill-290612.pdf).

The Law Society’s law reform initiatives are widely publicised through LawPoints, the weekly email bulletin sent to all members of the legal profession, and LawTalk. Contributions from members are invited.

It would seem that Mr Garrett has, indeed, missed the invitation to “self-select and register an opinion”. The Bail Amendment Bill was publicised in LawPoints several times, and on 10 and 17 May members were invited to email comments to the Law Society.

There is also a regular invitation in LawTalk for members to participate in law reform. For example, on page 21 of issue 799 (6 July 2102), we ran the following invitation under the sub-heading Current law reform consultation: “The Law Society is currently preparing submissions on numerous bills and government discussion documents.

“Members are welcome to contribute comments to the Law Reform Committee, specialist committees and sections preparing the submissions. For a full list of upcoming submission deadlines and information about how to participate, visit http://my.lawsociety.org.nz/law_ reform/work_in_progress. For more information on Law Society law reform activities, contact vicky.stanbridge@ lawsociety.org.nz.”

Contributions from interested members of the profession to the Law Society’s law reform activities are always welcome.

Frank Neill Editor

Building contract fraud There may be a new form of Ponzi scheme. Owners who sign a building contract with a building company (or an individual) may find that the builder has been financing other building projects and other activities (squirreling money offshore) with the money from the owner; twice this year I have had to advise clients who have found themselves in this situation and lost a lot of money ($500,000 in one case): (a) the owner has signed a simple form of building contract, with provision for progress payments; (b) there is no independent certifier for any of the progress payments; the builder self certifies (sometimes in the form of a payment claim under the Construction Contracts Act – whether or not the work has actually been done); (c) the client unquestioningly pays on the certificate for payment, sometimes for work not done; (d) the builder fails to pay a significant number of subcontractors; (later where certificates of compliance are required from unpaid subcontractors the owner inevitably has to pay them – thus the owner pays twice because the owner believes that the subcontractor would and should have been paid out of the relevant progress payment); (e) at a later stage of the contract the builder issues a large payment claim for work not actually done and then (about a week later after it is paid); (f) the builder abandons the contract and either heads off overseas, or (if the authorities are lucky and prevent that in one case I know about) serves a stiff bout of home detention after pleading guilty to certain serious fraud office charges, and of course going bankrupt and then leaving the country; (g) the owner has to engage another competent licensed building practitioner to complete and certify the building work before code compliance can be issued – this is an expensive aspect of the process.

Some of the advice that should be given by solicitors asked

LAWTALK 803 / 31 AUGUST 2012

17

LAW REFORM REPORT Recent submissions: The Law Society has recently filed submissions on: •

Corrections Amendment Bill – draft Supplementary Order Paper

•

Bail Amendment Bill

•

REAA review of Professional Conduct and Client Care Rules

•

Proposed clarification of asset transfer rules in Income Tax Act 2007

•

The Code and Defensive Tactics – Proposed Guidance Note

•

ISO Proposal – Guidelines on consumer warranties

The submissions are available at http://www.lawsociety. org.nz/publications_and_ submissions/submissions.

to advise a client who wants advice before signing a building contract would include advising the client: (i) not only carry out a credit check (which is quite likely to be of minimal value) but also require a copy of reliable accounts from the builder’s accountant so that the solicitor can advise the client about the solvency of the builder, about the risk that other contracts (or other non-building business activities) are going to be financed from the proposed contract), and about the overall soundness (from appearances) of the builder. (ii) obtain credit references from the proposed suppliers of the builder (are the builder’s accounts up to date – and is there any personal guarantee for a company?); (iii) obtain credit references from proposed subcontractors (which may be difficult unless the builder has prearranged them); (iv) insist on the appointment of an independent certifier for progress payments (if the builder refuses to accept this the builder should not

18

LAWTALK 803 / 31 AUGUST 2012

Corrections Amendment Bill still raises serious issues The New Zealand Law Society has identified a number of important issues in a draft Supplementary Order Paper outlining proposed amendments to the Corrections Amendment Bill.

The Law Society says the proposed amendments engage fundamental rights and freedoms, and believes it is unfortunate the amendments are proposed by a draft SOP without a regulatory impact statement or advice on compliance with the New Zealand Bill of Rights Act 1990.

“The justification for many of the proposed amendments is far from clear. So too – as a consequence – is their legality,” the Law Society says.

A proposed amendment which would remove the requirement that drinking water for prisoners complies with Ministry of Health standards is opposed. be engaged). This will be an extra cost, and the client may need advice about who to appoint. This is a most important precaution against fraud, and if fraud occurs the independent certifier may be qualified to assist with the completion of the building project. (v) although this may be thought to be novel, negotiate into the contract •

•

•

a clause that before a progress payment is made the builder supplies on each occasion a list of both of all current payment claims or invoices against the builder and of the expected payment claims or invoices for the work included in the progress payment claim; if possible a clause by the builder which authorises the client to make direct payments to the subcontractor or supplier of the amount of the invoice or payment claim; a clause that the builder will obtain any relevant certificates from subcontractors before paying them (of course a breach of this clause will not be much use if the

The Law Society says it is concerned that it can be inferred that the existing and long-standing statutory requirement that prisoners be protected with drinking water compliant with Ministry of Health standards has not been, and is not being, met.

It says this inference has since been confirmed by the Department of Corrections.

Another proposed amendment requires that prisoners subject to a segregation direction because of risk of self-harm be required to undergo a strip search when first placed in, and each time they are returned to, a segregation area.

The Law Society says it does not support this because the reasonable necessity required by the Bill of Rights Act for this is not evident, such an invasive procedure might further compromise mental health, and builder absconds).

A builder’s resistance to some of these matters may indicate that it is not wise to deal with that builder.

I do not pretend to have all the answers especially about what to insist on including in the contract.

This happened in one case although the builder was a member in apparent good standing with one of the building trade associations.

Have any other practitioners come across this scenario?

I suggest that the Property Law Section take this matter further with a view to helping solicitors to advise about the risks of entering into a building contract.

Chris Corry Barrister, Wellington

Editor’s Response The Law Society’s Property Law Section is interested in hearing from lawyers who have encountered similar practices.

Email property@lawsociety.org.nz.

Frank Neill Editor

L AW REFORM REPORT the risk that it could be a risk-exacerbating procedure. It recommends that the mandatory requirement is removed.

An amendment which would allow all prison staff to open prisoners’ mail is also opposed. The Law Society says no justification is offered for the change, especially given the express recognition in the Corrections Act 2004 of the need to protect the privacy of prisoners and their correspondents.

No justification is also offered for a proposed amendment to increase the period for which recordings of prisoner telephone calls are presumptively held, from six months to two years. The Law Society says this proposal is unaccompanied by any evidence or analysis by which the necessity or proportionality of the measure can be assessed.

Bail Amendment Bill conflicts with international child protection laws The Bail Amendment Bill is inconsistent with United Nations Guidelines for the Prevention of Juvenile Delinquency, the Law Society says.

Presenting the Law Society’s submission to the Law and Order Select Committee on 1 August, Sonja Cooper said the proposed bill was in direct conflict with the United Nations Convention on the Rights of the Child.

“Placing children in custody should be a last resort as many more young offenders will spend lengthy periods in police cells.

“Whenever possible, detention pending trial shall be

PROFESSIONAL LEGAL STUDIES COURSE

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

replaced by alternative measures such as close supervision, intensive care, placement with a family or in an educational setting or home,” Ms Cooper said.

She added the bill did not take into account the increased funding and resources required to handle an influx of young offenders being placed in police custody, which should only be a last resort and for the minimum necessary period.

“We are aware young people do commit crimes but they need to be treated differently because they are vulnerable.

“It is too often that young people end up in custody and we have to be careful we don’t fall behind the rest of the world in terms of our international obligations,” Ms Cooper said.

The Law Society says the Bail Amendment Bill’s blanket approach to reverse the onus of proof in certain bail provisions also conflicts with the New Zealand Bill of Rights Act 1990, which affirms rights which protect liberty and fairness in the criminal justice system.

The bill places the onus of proof in bail decisions on the defendant, if charged with murder or a Class A drug offence, or with an extended list of specified offences, when the defendant has previously been convicted of one of those offences.

The Law Society says these provisions should not be enacted as they conflict with the presumption of innocence, which has been described as the “golden thread” of the common law.

Ms Cooper said there was a “fundamental inconsistency” between the purpose of the bill (to make it harder for those accused of serious offences to get bail in order to improve public safety) and the right to liberty of the person and the presumption of innocence.

She said imprisonment (including on remand) is the most severe deprivation of the right to liberty of the person known to our law. It is of prime importance that powers of detention be approached in light of that right.

“The purposes served by the presumption of innocence are as relevant pre-trial (and therefore to bail) as they are during trial,” Ms Cooper said.

Coming up – current law reform consultation, etc

“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.

The Law Society is currently preparing submissions on numerous bills and government discussion documents.

Members are welcome to contribute comments to the Law Reform Committee, specialist committees and sections preparing the submissions. For a full list of upcoming submission deadlines and information about how to participate, visit http://my.lawsociety.org.nz/law_ reform/work_in_progress.

For more information on NZLS law reform activities, contact vicky.stanbridge@lawsociety.org.nz. LT

Independent Resource Management Specialist

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

Advice, strategy, advocacy, dispute resolution for your clients Waterfront Chambers Wellington

Philip Milne Barrister

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

LAWTALK 803 / 31 AUGUST 2012

19

PROFESSIONAL DEVELOPMENT

Urgent need for international contract law There is an “urgent need” for uniform rules internationally on general contract law encompassing all relevant questions conceivable in a contractual business to business (B2B) relationship.

on international B2B disputes had increased around 31%. Empirical research also suggested that more than 60% of international contracts now contain an arbitration clause.

This was one of the key messages Professor Ingeborg Schwenzer gave in her address to the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) Conference in Wellington on 2-4 August.

“It is further remarkable that the higher the value of a contract, the more probable it is that it contains an arbitration clause.”

Professor Schwenzer, from the University of Basel, outlined a series of regional initiatives aimed at crossborder B2B contracts.

“All these more or less regional projects and initiatives are ample proof of the urgent need for uniform rules on general contract law on the international level due to the development of global trade.

Regional endeavours to harmonise and unify general contract law, however, cannot fulfil the needs of international trade. Rather, different legal regimes in different regions lead to fragmentation.

“Instead of saving transaction costs and thus facilitating cross-border trade, international contracting may become even more complicated.

Regional unification adds one more layer in addition to domestic rules and the well-established instrument of the UN Convention on Contracts for the International Sale of Goods (CISG).

“Additionally, in many instances, not only does the terminology used in the general contract law instruments differ from that of the CISG, which in itself leads to confusion; frequently, there will also be contradicting solutions to one and the same legal problem.

“Finally, regionalisation of legal systems reduces the number of cases decided on a truly international level, and hence has a negative impact on the predictability of the outcomes,” Professor Schwenzer said.

In the international context “dispute resolution by domestic courts, more often than not, is no longer an adequate solution”. In international settings, the preferred way of dispute resolution now is arbitration with mediation gaining more and more importance.

Between 2005 and 2010, arbitrations

20

LAWTALK 803 / 31 AUGUST 2012

The arbitration procedure is more and more globalised because lawyers, counsel and arbitrators working together in deciding a case are coming from different regions of the world with different educational, legal and cultural backgrounds.

“In this respect, some scholars have even alluded to the emergence of a procedural lex mercatoria (merchant law),” she said.

“Additionally, the last decades have seen the emergence of mediation as an instrument of international dispute resolution. Modern mediation gathered momentum in the 1970s in the United States, in the 1980s in Australia, UK, Canada and New Zealand and in the 1990s finally in civil law jurisdictions in Europe. For the most part, the same arguments are brought forward in favor of mediation as for arbitration.

Moreover, mediation is considered to be more cost effective, in particular in comparison with arbitration.

“Finally, mediation is less apt to disrupt a long-term relationship between the parties than arbitration, let alone litigation. Thus, nowadays many contracts contain so called multi-tiered dispute resolution clauses according to which the parties should first turn to mediation or conciliation before they go to arbitration (MDR-clauses).”

Beyond dispute resolution mechanisms, globalisation of trade also necessitates globalisation of law.

“It goes without saying that different domestic laws form an obstacle for international trade as they considerably increase transaction costs for market participants. Several surveys conducted during the last years revealed that traders themselves conceive differences in contract law as one of the main obstacles for cross-border transactions.

They include the difficulty in finding out about the provisions of an applicable contract law, obtaining legal advice, negotiating the applicable law as well as adapting standard terms to different domestic laws.”

The question arises whether young lawyers are truly equipped to meet the challenges of the globalisation of their profession.

“In most countries, law schools still focus on teaching domestic law.

However, there are certain tendencies towards internationalisation of the legal education. It has been and still is common for many young lawyers of civil law jurisdictions to continue their studies in a common law country with the aim of receiving an LLM degree.

“During the last decades, further exchange programmes have been initiated that are sometimes or often combined with the possibility of a double degree. International mooting competitions such as the Jessup Moot and the Vis International Arbitration Moot yearly attract thousands of students from all over the world.

Curricula of many law schools nowadays feature courses in international and/ or comparative law and stimulate legal language skills with naturally the focus being on today’s lingua franca – English.

“Despite all these endeavours, however, legal education is still orientated to bring forward lawyers specialised in their home jurisdiction and not ones being versatile in the global legal market. It cannot be disputed that certain fields of law still are and will be nationally confined, such as many areas of public law and criminal law as well as property law, family law and law of inheritance.

These fields still need the predominantly domestically educated lawyers.

“However, in the long run, there must evolve a genuine education of international lawyers on a comparative basis. Such a denationalised education at the same time should be delocalised, bringing together students from all over the world and thus equipping them with a truly cross-cultural and globalised learning experience,” Professor Schwenzer said. LT

PROFESSIONAL DE VELOPMENT

David Goddard QC and Professor Campbell McLachlan QC.

Private international law increasingly important

By ELLIOT SIM As travel and trade increase, and the internet makes it ever easier to communicate and trade between countries, lawyers must grapple with the complex issues of cross-border transactions.

This was the theme of NZLS CLE Ltd seminars in Auckland (9 August) and Wellington (10 August). The seminars were led by David Goddard QC and Professor Campbell McLachlan QC. Lawyers, litigators and policy advisers attended the event, which provided an introduction and update on the complex issues raised by cross-border dealings and disputes. The issues are covered in more detail in the NZLS CLE Ltd booklet written by Professor McLachlan and Mr Goddard: Private International Law – litigating in the trans-Tasman context and beyond.

Mr Goddard says he first presented the seminar in 1991. He believes the major change since then has been the rise of

the internet and the extent to which people use it to communicate, obtain information, and supply and purchase goods and services.

“A lot of that online activity is cross border, although it’s often not very obvious because it’s also happening in your living room.”

Mr Goddard says the advantage of continuing education is having the opportunity to provide lawyers with the basic tools for identifying and understanding key issues in an area of law which is constantly developing.

“It’s also about providing an update on developments in the area because the last time this seminar was presented was in 2001, and since then there have been a number of very significant developments in New Zealand Private International Law .”

“Private International Law (PIL) actually touches all of us. It affects almost every area of practice and

everyone needs to be alive to the issues. It’s very risky not to be. It really is important to have at least a basic understanding of the issues and where you might look for answers,” says Mr Goddard.

Professor McLachlan agrees, saying it is common for all lawyers to encounter transactions, relationships and disputes which have connections with more than one country.

“In the modern context it’s like the master key for dealing with the legal consequences of globalisation. We’re in a paradoxical world now, where it’s much easier for people and assets and information to flow around the world than it is for the legal process to keep up with that,” he says.

The first of the two most important changes discussed in the seminar was the new provisions dealing with crossborder issues in the High Court Rules, which came into force in February 2009.

LAWTALK 803 / 31 AUGUST 2012

21

PROFESSIONAL DE VELOPMENT The changes significantly clarified the rules about when the New Zealand court would hear proceedings against a defendant outside the country, and the availability of interim relief in New Zealand in support of foreign proceedings.

The other major development explored by seminar attendees was the TransTasman Proceedings Act 2010. This was the product of an agreement between the Australian and New Zealand Governments to simplify the process of cross-border dispute resolution and enforcement of some regulatory regimes within Australasia.

The legislation is expected to come into force some time in the second half of 2012.

“Currently Australia and New Zealand treat each other as foreign countries, in the same way that we might approach serving proceedings or enforcing judgments anywhere else, despite the extent of dealings between the two countries, and the frequency with which those trans-Tasman issues crop up. It’s a very expensive, clunky and unsatisfactory way of ensuring that cases are decided efficiently and fairly,” says Mr Goddard.

The legislation significantly simplifies the process of bringing proceedings involving defendants in both countries and the process of taking whatever judgment results from that and enforcing it throughout Australia and New Zealand. It also facilitates getting interim relief within Australasia in support of a proceeding in either country, and addresses a few other practical issues such as trans-Tasman subpoenas.

Lawyers, litigators and policy advisers attended the seminars.

the seminar.

A subcommittee of the Rules Committee, which he chaired, developed new rules setting out a clear and straightforward set of tests to apply in order to determine whether a New Zealand court can properly take jurisdiction over defendants outside the Australasian area.

“That’s all been structured around the central principle that the courts take jurisdiction over cases which have a real and substantial connection with this country.”

The second change which Professor McLachlan believes will have the greatest practical significance, is the “blocking up” of what has been described as the “black hole in international civil litigation”, by giving the court the ability to grant interim relief such as freezing injunctions over assets in New Zealand, in aid of foreign proceedings.

“All of a sudden, from a civil and commercial point of view, our mutual borders will blow out to covering both countries,” says Professor McLachlan.

“So you’ve got litigation ongoing in Canada, but the defendant owns a house in Queenstown, or has money in a bank account in Auckland, or he himself comes to New Zealand. Then the New Zealand courts can act in aid of the Canadian proceedings,” he explains.

Regarding the High Court Rules, Professor McLachlan says two main changes were emphasised throughout

Professor McLachlan says this enables New Zealand to join the wider international trend of providing cross-

The New Zealand-developed Discovery solution you have been waiting for.

The only discovery system designed, developed and hosted in New Zealand, for New Zealand lawyers

22

LAWTALK 803 / 31 AUGUST 2012

border assistance to make the litigation process work better.

Both Mr Goddard and Professor McLachlan say PIL is complex and is sometimes avoided by law students, but stress the need for lawyers to have an understanding of the rules that govern cross-border transactions and disputes. They note that our courts have had recent judicial experience with important PIL issues.

“The High Court Rules have been road tested and found to work by the Court of Appeal. And the Supreme Court has had to grapple in two important cases with how to use PIL to determine the territorial reach of New Zealand statutes, which is of great importance for the regulatory field as well as in purely civil international disputes.”

They hope the seminar and booklet will aid lawyers to identify potential issues and will provide the tools to work out a way to remedy them, as there is constant legislative change in PIL in response to the increasing frequency of cross-border issues.

“It’s the sort of subject where if you don’t have the tools, you don’t know how to start spotting the issues in the first place,” Mr McLachlan advises.

The seminar booklet can be ordered online at www.lawyerseducation. co.nz. LT

 Generate document lists and electronic bundles compliant with February 2012 High Court Rules  Search documents for key words and metadata  Organise and manage discovery documents  Easily redact sensitive or privileged information  Fully web-based – no software to install  And much more

To find out more, visit our website: www.lawflow.co.nz

Youth justice projects highlight need for changes SUPPORTING INDEPENDENT LEGAL THINKING

New Zealand is often touted as a world leader in youth justice procedure, but three Foundation-funded research projects highlight emerging problems that threaten to undermine the good results being achieved.

The projects all feed into current Government reviews of the Family Court, the Family Group Conference process and legal support for young offenders. Between them they provide a solid evidence base for making wellinformed decisions.

The projects all respond to information gaps identified by leaders in youth justice as being critical to achieving better outcomes for young people.

Family Court Parenting Orders As part of the Government’s wideranging review of the Family Court, Principal Family Court Judge Boshier asked for research into Parenting Orders, so that judges could understand the effect of their orders, including how often parents changed them afterwards.

The research, by Associate Professor Jan Pryor of Victoria’s Roy McKenzie Centre for the Study of Families, found considerable dissatisfaction with court orders – more than half of parents appealed them or returned to court.

Pryor interviewed about 30 Family Court officials and received about 200 responses to parent questionnaires about the operation of the Family Court and the impact and durability of Parenting Orders.

She says that overall, parents who sought resolution through the courts were much unhappier with the outcome than those who didn’t. They rated mediators as the least helpful group involved in the process – “parents felt that mediation was too short, and there was too much pressure for people to come to a conclusion.”

Pryor’s study recommends that judges should be involved with cases at the outset to help people understand the difference between counselling and mediation. The Family Court coordinator was also important – “that position has been made more administrative, though

it plays a critical but unrecognised role in making the initial judgement on where people should go.”

Youth Justice Family Group Conferences New Zealand introduced Family Group Conferences in 1989 to help make better-informed and responsible decisions about young offenders.

It was a world-leading change at the time, regarded as the “jewel in the Crown” of the Children, Young Persons and their Families Act. Research by the Henwood Trust, which supports effective strategies for young offenders, confirms that Family Group Conferences (FGCs) remain strongly supported and work well, but finds problems with implementation.

Trust Founder and Chair Judge Carolyn Henwood says the problems include under-resourcing, too much bureaucracy and not enough specialist training for coordinators.

The trust’s research, which included interviews with all parties involved in the process over 24 months, found that funding for FGCs had declined substantially, making it difficult to bring extended families together.

These days coordinators are often based in government departments rather than communities. This means, for example, that conferences are often held during office hours, precluding some family members and victims from attending.

“We need to be investing in coordinators – it’s a very skilled job, and it’s very important they are trained well and are very connected with their communities,” Judge Henwood says.

“I think we have under-stated their value – they are worth molten gold. If you can engage families to be part of the solution and keep even one young man out of prison, then you have achieved a great deal.”

The Henwood Trust research is being turned into a book by journalist Stephen Stratford, to make the material accessible to a wide audience. Judge Henwood says the research will also be an important input into Child Youth and Family’s

Lynda Hagen

current review of the FGC process.

Protecting young people’s rights The importance of specialist training for people who work with youth offenders is also reinforced in research by Alison Cleland of Auckland University Law Faculty.

State-funded youth advocates help young offenders in courts and FGCs throughout New Zealand. Cleland’s investigation found that the advocates are doing a good job, but their work is threatened by the Government’s Legal Assistance (Sustainability) Bill, which would remove specialist criteria for youth advocates.

“This is a massive threat to the whole system. You need to be a specialist to do the job well. The bill suggests that anybody can do it – well, you can’t. With young people, as with other groups, if you don’t do something well, you make it worse,” she says.

Cleland’s research involved interviews with judges, advocates and youth aid workers from four Youth Court areas.

She says the responses conclusively confirm the complexity of youth advocates’ work.

“Young people have limited ability to understand legal language and concepts.

Many are damaged by abuse, and have limited ability to trust people. But once they understand the charges and the process, there is a chance for young people to get a really good outcome from the system.”

The youth advocate goes beyond a basic interface and advocacy role to being a mentor and supporter, she says.

Cleland’s research, soon to be published as a paper, recommends formal training for youth advocates, especially given that the original cadre of experienced advocates who started in 1989 are now beginning to retire.

Visit the Law Foundation website www. lawfoundation.org.nz to find out more about the research we fund.

Lynda Hagen is the Executive Director of the New Zealand Law Foundation.

LAWTALK 803 / 31 AUGUST 2012

23

specialist/

ngage with, and referrers;

h prospects, lleagues and

the key practice, in a ctor or for a

spects and

nto your sales

a stepping resources, to the e centre almedia.com>. nd podcasts.

her business awyers and d LinkedIn to and it is her source (after addition, helping LinkedIn eral n LinkedIn

LinkedIn for Lawyers: connect, engage and grow your business Kirsten Hodgson

ness

THE BOOKSHELF LINKEDIN FOR LAWYERS: Connect, engage and grow your business

By Kirsten Hodgson The author, with experience in marketing large law firms in New Zealand and England, says she started writing this guide when a couple of lawyers asked her how they could use LinkedIn, the online business network.

In just over 150 pages she does just that, using practical examples, illustrations, and easy-to-follow instructions. If you’ve been pondering taking the step into social media to manage your reputation, raise your profile, generate new business or develop existing business further, this is an excellent introduction. And if you’re already on LinkedIn, you might find that there are many more things you can do. (LexisNexis NZ Ltd, August 2012, 978-1-92718341-0, 176 pages, paperback and e-book, $51.80 (GST incl, p&h excl)).

LinkedIn for Lawyers: connect, engage and grow your business

Kirsten Hodgson

MEMORY AND LAW Edited by Lynn Nadel and Walter P SinnottArmstrong Memory is an essential ingredient of our legal system. This collection of essays by psychologists, neuroscientists, lawyers and philosophers brings together current knowledge and thinking about the ways in which memory impacts on the legal process. The 14 chapters cover a diverse range of topics, including memory in eyewitnesses, memory in jurors, emotion’s impact on memory, and the concluding essay “Ten things the law, and others, should know about human memory”. (Oxford University Press, August 2012, 978-0-199920-754, 432 pages, hardback, £55).

24

LAWTALK 803 / 31 AUGUST 2012

Michael Woolf and fellow magician John Calvert.

Pulling a rabbit out of a hat year upon year

By Hannah Grant The 37th annual edition of the New Zealand Charity and Legal Gazette will be published later this year. Dating from 1975, the publication is a well-established resource for lawyers whose clients are considering a bequest to a charity and would like some suggestions.

Distributed free to property and family lawyers, most recipients will be unaware that the Gazette is assembled by a magician.

Editor Michael Woolf has worked hard to provide a platform for charities to make their case for bequests and

donations from the legal profession since 2001.

He has also tirelessly entertained the nation through performing magic tricks. He wasn’t quite born in a trunk, but Mr Woolf has always loved performing, the theatre and magic.

“I can remember doing magic tricks when I was very small. When I was a kid, I was mad on magic and theatre and shortly after we moved from England to New Zealand I went to see one of my now favourite people, John Calvert.

“He was my greatest influence in magic

First established in 1975 by the late George Joseph, a prominent Wellington lawyer and author, the Gazette is now accepted by the legal and fundraising professions as a key source of information on charity contacts. so you can imagine my surprise when I received an email from the man himself, saying ‘how dare you blame me for inflicting you on the world of magic’ and wishing me all the best. This was the beginning of a wonderful friendship and last year I had the privilege of being present at his 100th birthday at a magician’s convention,” he says.

After an extensive media career, Mr Woolf tried his hand at teaching.

Mr Woolf didn’t ever give up his love of Punch and Judy, but fittingly transferred his knack for performing to his 50 years working in the media.

“I said yes and was left holding the baby!”

He started in radio as office boy, aka “cheap slave labour”. Then, at the tender age of 17, Mr Woolf was fortunate enough to go on the air as an announcer at radio stations 2ZB and 2YA.

“I drove myself nearly to the edge of a nervous breakdown as it was far too much to take on. After a few years, though, I learnt and got a few others on board,” he says.

“I wasn’t quite the youngest one ever.

The well-known Brian Henderson started in radio at 16 in Dunedin, but I was second youngest ever to start.”

From radio to television, Mr Woolf came onto our screens as a continuity presenter (coming on between shows and telling people what was coming up next as well as doing a spot of news and weather).

You may also know him from one of New Zealand’s most popular films, Good Bye Pork Pie. He was Chief of the Armed Offenders Squad trying to catch the yellow mini “bandits”. The chaser became the chased in Rangi’s Catch, where he was then being pursued around New Zealand by a gang of kids led by an 11-year-old Temuera Morrison.

“I was teaching at the Polytechnic when a great journalist Nadoo BallantineScott, an old colleague of mine, asked me if I wanted to buy it, I said buy what? And he said ‘the Gazette you fool’.

Editing and producing the Gazette was a steep learning curve for Mr Woolf.

First established in 1975 by the late George Joseph, a prominent Wellington lawyer and author, the Gazette is now accepted by the legal and fundraising professions as a key source of information on charity contacts. The organisations which are listed are able to make their case for donations and bequests. Registration as a charity is not obligatory.

The Gazette is distributed by the New Zealand Law Society to members of the Family Law Section and Property Law Section and costs are met from charges paid by the listed organisations.

“Many of the Gazette’s clients have long-term relationships with the publication,” Michael Woolf says.

Mr Woolf formed a company, The Production House Ltd, to publish the

Gazette. The company also produces Magicana, New Zealand’s magazine for magicians, established in 1953.

For his varied endeavours, Mr Woolf was bestowed the Scroll of Honour for lifetime achievement by the Variety Artists Club. This was understandably a career highlight.

The buck doesn’t stop at editor/artist though; Mr Woolf is also a Justice of the Peace, Funeral Celebrant, Freemason and the Director of Communications at the Order of Saint Lazarus charity.

“As Justice of the Peace my ministerial duties involve being called on as a nominated adult witness when a juvenile is being interviewed by the police. This is sometimes at all hours of the night and I trundle down to the police station and I sit in to make sure the particular young person is supported and sees fair play. It only happens a few times a year but it’s very rewarding.”

Mr Woolf hasn’t hung his magic hat up entirely; he still does the odd show at magician conventions.

Performing for so many years must mean he’s good at it and in terms of holding an audience, he gives these tips: “Make sure you go to the lavatory before going on stage. It sounds trivial, but it’s very important. Take some deep breaths and be very aware of what you are going to say by rehearsing beforehand,” he says. LT

LAWTALK 803 / 31 AUGUST 2012

25

BRANCH NEWS NELSON NEW ZEALAND LAW SOCIETY NZLS EST 1869

Nelson bar dinner The Law Society’s Nelson branch hosted a very successful bar dinner in late July at The Nelson Club.

The first practitioner-only dinner for 20 years was sold out, with a waiting list of interested attendees. There were 68 lawyers present. The dinner began with an introductory talk from Judge Tony Zohrab. Judge David McKegg was the guest speaker.

Branch manager Cathy Knight says both speakers were very entertaining and well received.

“We are certainly going to do it again. It was well attended and very much enjoyed by everyone, with very favourable feedback,” she says.

Judge McKegg addresses the Nelson Bar Dinner.

AUCKLAND NEW ZEALAND LAW SOCIETY NZLS EST 1869

Lawyers hear of Auckland’s potential The Mayor of Auckland City, Len Brown, spoke at the first seminar in the Law Society’s Auckland branch seminar series Our City, Our Future, on 15 August.

Rob Fichett

26

LAWTALK 803 / 31 AUGUST 2012

Over 70 Auckland lawyers attended the seminar, hosted by DLA Phillips Fox, to listen to the mayor speak about Auckland Council’s 10-year plan and the council’s aim to make Auckland the most liveable city in the world.

Networking with Power The Auckland Young Lawyers and Young Accountants Group’s recent function Networking with Power attracted around 200 attendees.

Martin Wiseman (DLA Phillips Fox), Len Brown and Chris Moore (President, Auckland branch).

BR ANCH NEWS

Cast of Law Revue.

Guest speaker Simon Power, head of Westpac Private Bank and former Minister of Commerce from 2008-2011, spoke at Britomart Westpac’s rooftop function area.

Mr Power asked the question: How will you pay back New Zealand for investing heavily in your university education?

He reflected on his career as a lawyer in a small town and at Kensington Swan, as well as his roles in Parliament.

The evening also presented a great networking opportunity for the two professions.

Justice Katz sworn in Auckland lawyer Sarah Janine Katz was sworn in as a judge of the High Court at Auckland High Court on 15 August.

Law Society President Jonathan Temm spoke at the special sitting for the former Russell McVeagh partner.

WELLINGTON NEW ZEALAND LAW SOCIETY NZLS EST 1869

Mr Turner said the production had been a real “team project” with cast and crew putting in a huge amount of energy into making sure everything ran smoothly.

Wellington Law Revue

“Feedback has been great,” he said.

The talent of Law Revue cast and crew highlights lawyers’ amazing levels of acting and singing talents, according to director David Turner.

Wellington YLC new executive

There was a good turnout to this year’s production, which ran from 14 to 17 August at Victoria University’s Memorial Theatre.

Entitled “Murder at CULT House: A Lawdunnit”, the revue marked the 85th anniversary of the Donoghue v Stevenson judgment. Musical numbers included hits from Chicago and the Rocky Horror Show.

The Wellington Young Lawyer’s Committee (YLC) has changed its executive structure to include a suite of roles.

At a June executive meeting, the Wellington YLC saw David Turner step down as convenor to take up his Fulbright scholarship at Harvard.

Jamie Grant was elected new convenor, and Helena Cook and Pearl Roy are the new deputy convenors. LT

JUSTITIA Providing professional indemnity and specialist insurance products to the legal profession Visit our website www.justitia.co.nz for further information and application forms or contact:

Mr John Martin, Aon New Zealand

 (04) 819 4000 • fax (04) 819 4106 email john.martin@aon.co.nz

Jonathan Temm and Justice Katz.

LAWTALK 803 / 31 AUGUST 2012

27

UPCOMING PROGRAMMES Programme

Presenters

Content

Where

When

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.

Evidence Act for Civil Litigators

Andrew Beck

This seminar will take a close look at a number of thorny issues raised in recent cases, including the ongoing concern in respect of the relationship between the common law and the Evidence Act - in particular, whether the common law continues in relation to events that occurred before the Act; the extent of without prejudice privilege; the scope of other privileges and their exceptions; the role of experts, and the limits of expert evidence; and the admissibility of briefs and what to do with inadmissible evidence.

The general rules relating to relevance and admissibility will also be considered.

Tax Conference

Chair: Mathew McKay

This annual Conference is an important event for all those working in this ever-changing Auckland and demanding area of the law. You can look forward to first class presentations on latest developments in case law and black letter law. The day will provide a great opportunity for NZ’s relatively small number of tax practitioners to come together and share ideas and experiences.

CIVIL

Dunedin Christchurch Wellington Hamilton Auckland

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

5 Nov 6 Nov 7 Nov 12 Nov 13 Nov

COMMERICAL/COMPANY 5 Sep

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)

EMPLOYMENT Employment Law Conference – Good Faith

Chair: Peter Chemis

This “must-go” conference, noted as much for its enthusiastic collegiality as for the Auckland high quality of the business sessions, will once again provide practitioners at all levels of experience an unmissable opportunity for two days of stimulating engagement on topics of essential importance and interest in the employment law field.

Care and Protection Orders and CYFS

Dr Nicola Atwool Tracey Gunn

Care and protection cases can be problematical and lawyers need a good understanding of how the statute works and how it interlinks with the moving goalposts of CYFS’ policy. Lawyers need to understand the reality of issues for children in care and what happens when CYFS intervenes and why they intervene.

This seminar will provide you with practical hands-on advice for dealing with care and protection cases.

8-9 Nov

FAMILY

Webinar for smaller centres Understanding Mediation – mediation for lawyers Part A

Dunedin Christchurch Wellington Auckland

Webinar

See listing in General section on the next page.

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.

17 Oct 18 Oct 25 Oct 26 Oct

25 Oct

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 for smaller centres

Webinar

8 Oct

Logic for Lawyers

Prof Douglas Lind Most lawyers’ logical intuitions are strong enough to permit smooth navigation most Wellington Webinar 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

All lawyers wishing to practise on their own account whether alone, in partnership, Auckland in an incorporated practice or as a barrister, will be required to complete this course. Wellington (Note: From 1 October 2012 all lawyers applying to be barristers sole will be required to complete Stepping Up).

Developed with the support of the New Zealand Law Foundation.

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.

26 Sep (full) 28 Sep (full)

Consultation Requirements

Lisa Hansen

Consultation is usually required by common law to ensure a decision is procedurally Your fair. It may now be seen to be a stand-alone principle of law. Consultation enables computer decision-makers to base their decisions on up-to-date information and to ensure that implications are understood. All practitioners who act for, or make submissions to, Webinar Webinar decision-makers at all levels should attend to gain a better understanding of how you can more effectively use the consultation process.

27 Sep

Lawyer as Negotiator Jane Chart

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

Virginia Goldblatt Understanding Geoff Sharp Mediation – mediation for lawyers Part A

Mediation knowledge and skills are an increasingly important adjunct to legal Wellington practice. Many more clients are taking disputes to mediation (because it works) and the more that their legal advisers know about how it works the better. In addition practice as a mediator extends the service that lawyers can offer the public.

16-18 Nov

Reading Accounts and Balance Sheets

While it is not necessary for you to have the financial insight that might be expected of an accountant, you should know how financial statements are put together and know how to ask the right questions and identify warning signs, discuss financial statements intelligently with a client, and know when to call in specialist assistance.

This workshop will enable you to unlock the mysteries of financial documents.

Lloyd Austin

Auckland Hamilton Wellington Christchurch

23 Oct 25 Oct

13-14 Nov 19-20 Nov 26-27 Nov 28-29 Nov

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

LAWYERS COMPLAINTS SERVICE Conflict of interest: firm’s conduct relevant to client’s liability A Lawyers Standards Committee censured Wellington lawyer Stephen Gill and ordered him to refund fees after he acted in proceedings where his firm’s earlier involvement in handling a property transaction was relevant to his client’s liability as the seller.

The tribunal also disagreed that Mr Gill was entitled to some costs relief on the basis that alternative charges of misconduct and conduct unbecoming had not succeeded. It said all the different charges were based on the same facts and issues, and the act didn’t specify any hierarchy for the charges.

Mr Gill appealed the penalty and publication orders to the Lawyers and Conveyancers Disciplinary Tribunal.

Mr Gill also challenged the requirement that he attend the Law Society’s Ethics for Litigators course, imposed by the committee under its power to order a lawyer to take advice on “the management of his practice” (s106(4)(i)). The tribunal rejected Mr Gill’s argument that “management” covered administrative issues only. It said that this term comfortably extended to other aspects such as client management and conflict protocols.

The complaint The client complained both about the conduct of another lawyer from Mr Gill’s firm, who had acted on a property transaction, and about Mr Gill then acting in subsequent summary judgment proceedings despite a conflict of interest.

The client had claimed that he had been committed to selling a property without being advised of the specific terms of the agreement.

After the client did not proceed with the sale, the buyer successfully sued for specific performance. Mr Gill began acting for the client after the buyer served summary judgment proceedings, and acted for him throughout the case.

The tribunal did, however, overturn two other orders made by the committee, agreeing with Mr Gill that they were not specific enough. He had been ordered to take advice for two years from “such person as may be nominated and approved from time to time by the New Zealand Law Society General Manager Regulatory”, and also to report on his practice for two years “in such manner as may be directed from time to time” by the same Law Society manager. LT

Standards committee findings The Lawyers Standards Committee that heard the matter said that Mr Gill should have appreciated that his firm’s earlier involvement would be directly relevant to the case and that the client might sue their firm if the buyer succeeded. It said there was a direct or potential conflict of interest between the firm and the client, and Mr Gill should have disclosed this to the client and refused to act for him.

The committee censured Mr Gill and ordered him to refund fees to the client and to pay the Law Society $7,620 costs.

It also ordered him to take advice on managing his practice (including attending an ethics course) and to report to the Law Society. The committee ordered publication of its decision and of Mr Gill’s identity.

On appeal Mr Gill did not challenge the substantive finding against him, but did appeal to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal on the committee’s publication and costs orders and the requirements that he take advice and make reports.

On the issue of publication, the tribunal said Mr Gill had not raised any factors that outweighed the public’s right to know in this case. It rejected his argument that an eight-month delay during the handling of the complaint was a reason to amend both the publication and costs orders.

The tribunal noted that the openness of justice is an important aspect in professional disciplinary proceedings.

30

LAWTALK 803 / 31 AUGUST 2012

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

Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Canterbury Westland Branch MOORE April Louise Hawkes Bay Branch HARISON Julia Ann

Waikato Bay of Plenty Branch JEW Amanda Marie JENSEN Nan Rosengarten

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch NICHOLSON (Nee SMITH) Dale Cherie En-Kor CASEY Patrick Richard

Canterbury Westland Branch CLIFFORD Charlotte Emma Waikato Bay of Plenty Branch PEPLOE Matthew David

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

OVERSEAS Pro bono initiative The Law Council of Australia, in partnership with the Australian Government, launched an international pro bono initiative on 16 July.

The Centre for Asia-Pacific Pro Bono (CAPPB), housed within the Law Council of Australia secretariat, has been set up to support international pro bono work in the Asia-Pacific region.

The CAPPB aims to:

•

contribute to good governance and democracy;

•

assist in the development of sustainable pro bono partnerships in the Asia-Pacific;

•

promote the rule of law and access to justice in the Asia-Pacific;

•

provide Australian lawyers opportunities to offer international pro bono legal assistance; and

build capacity and capability legal systems in the Asia-Pacific.

High Street firms have power Britain’s high street law firms have “power” and are known in their communities, reports The Gazette, journal of the Law Society of England and Wales.

This was revealed in the first phase of a consumer research project conducted by the Solicitors Regulation Authority (SRA), announced on 9 August.

The study to look at how the public access legal services was commenced in July. Over the rest of the year the SRA will travel to towns and cities across England and Wales to gauge the opinions of local people on the legal services market.

The research will seek to identify the problems consumers face when using a legal service and how outcomes could be improved.

The SRA team will also talk to law firms, and information providers such as Citizens Advice, charities, law centres and trade unions to understand how the public obtains information about legal services and how this could be

improved.

SRA head of research Tim Livesley said: “We hope to improve our understanding of the barriers to consumers achieving good outcomes with a legal services provider, and what types of information can help break down some of these barriers.”

The regulator’s policy officer for consumer affairs Richard Silver said: “We found that many people were familiar with firms with local offices, which indicates the power the high street practice still has in some communities.”The SRA plans to publish the research report in early 2013.

Right of access to a lawyer The LIBE (Civil Liberties, Justice and Home Affairs) Committee of the European Parliament voted on 10 July on its report concerning the proposal for a draft directive on the right of access to a lawyer and on the right to communicate upon arrest.

The rapporteur, Elena Oana Antonescu, now has a mandate to enter into trialogue discussions with the other institutions with a view to securing a first-reading agreement. The European Parliament has provisionally scheduled a plenary vote for 21 November 2012.

Contentious issues include the inclusion and scope of derogations on the right of access to a lawyer and on lawyer-client confidentiality.

The proposed directive is the third step in the EU’s procedural rights framework in criminal proceedings.

The first two measures, giving EU citizens the right to interpretation and translation and the right to information about rights (a “letter of rights”), have already been adopted.

New IBAHRI co-chair Baroness Helena Kennedy QC is the new co-chair of the International Bar Association’s Human Rights Institute. A member of the House of Lords, Chair of Justice (the British arm of the International

Commission of Jurists), President of the University of London’s School of Oriental and African studies and Principal at Mansfield College, Oxford University, Baroness Kennedy is the first female co-chair of the IBAHRI. She joins existing co-chair Sternford Moyo.

In her work as a barrister at Doughty Street Chambers, London, Baroness Kennedy has acted in a number of prominent cases over the last 30 years.

These include the Brighton Bombing, the Michael Bettany espionage trial, the Guildford Four appeal and the bombing of the Israeli embassy.

A staunch advocate for the equality of women in law, Baroness Kennedy played a significant role in Britain in promoting equal opportunities for women at the Bar. She became a member of the Bar Council to champion women in the profession and called for research into the experience of women lawyers and particularly their absence on the Bench.

Baroness Kennedy has lectured on human rights law, civil liberties and constitutional issues, both in Britain and internationally, has been honoured by the governments of Italy and France for her work on human rights. She is the recipient of more than 30 honorary doctorates. LT Fearon & Co 56x100 ad_BW.qxd:Layout 1

LEGAL SERVICES

ENGLISH LAW AGENCY SERVICES SOLICITORS Established 1825

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

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

PROPERTY

LITIGATION

John Phillips

Martin Williams 00 44 (0)1483 540843

00 44 (0)1483 540841

mw@fearonlaw.com

ajp@fearonlaw.com

PROBATE

Francesca Nash 00 44 (0)1483 540842

fn@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

LAWTALK 803 / 31 AUGUST 2012

31

21/

WILLS KEVIN JASON BRIMBLE

REWI KOHITI WIHARE

Would any lawyer holding a will for the above-named, late of 152 Beach Road, Onerahi, Whangarei aged 41 years, Vodafone Change Management Team, who died on 8 July 2011, please contact Lynette Hooper, Legal Executive, Burton & Co, PO Box 8889, Symonds Street, Auckland 1150, ph 09 913 1740, fax 09 300 3770, email lrh@burtonco.co.nz.

Would any lawyer holding a will for the above-named, late of Murupara, born 27 April 1925, who died at Rotorua on 26 February 1997, please contact Greg Kelly of Greg Kelly Law Limited, PO Box 25 243, Wellington 6146, ph 04 498 8501, fax 04 499 5193, email greg.kelly@trustlaw. co.nz.

SAMUEL HENRY POROA

Would any lawyer holding a will for the above-named, late of 18a Cannon Drive, Kerikeri, Day Manager, who died on 23 July 2012, please contact Nikhat Chandra of Johnston Prichard Fee Limited, PO Box 1115, Auckland 1140, ph 09 303 3295, fax 09 307 1283, email nikhat. chandra@jpf.co.nz.

Would any lawyer, particularly in the Franklin area, holding a will for the above-named, late of 41 Jellicoe Avenue, Tuakau, who died on 2 July 2012, please contact Martha Selwyn, Public Trust, Private Bag 17906, Auckland 1546, ph 09 985 6810, fax 09 985 6883, email martha.selwyn@publictrust.co.nz.

LYNNE MAREE FULLER

GARY DAVID MCGORRERY

Would any lawyer holding a will for the above-named, late of 54 Konini Street, Wainuiomata, Lower Hutt, retired, please contact Jim Meates Solicitor, PO Box 41 052, Lower Hutt 5047, ph 04 589 5906, fax 04 586 2689, email jim.meates@gmail. com.

Would any lawyer holding a will for the above-named, formerly of Auckland and latterly of Waverley, born on 30 December 1947, who died at Wanganui on 9 July 2012, please contact Niamh McMahon of McMahon Butterworth Thompson, PO Box 106073, Auckland 1143, email nmcmahon@mbtlawyer. co.nz.

MOKAPULE TELESIA SAMIUELA SIALE

ALAN MALCOLM MCCANDLISH

MARK POKO CUMMINGS

JEAN ELIZABETH SMITH

Would any lawyer holding a will for the above-named, late of Waikanae Country Lodge, 394 Te Moana Road, Waikanae, retired, born on 7 November 1919, who died on 28 July 2012, please contact Sally Harrow of The Law Connection Ltd, PO Box 2079, Raumati Beach, Paraparaumu 5255, ph 04 299 3192, fax 04 299 7686, email sally@ lawconnect.co.nz.

S40 PUBLIC WORKS ACT ROSANNA JESSIE MAHER also known as ROSE ANN

The Public Defence Service provides high quality legal advice and representation in a full range of criminal cases.

To satisfy the requirements of section 40 Public Works Act 1981, information is required in relation to the abovenamed person, spinster, daughter of the late John and Isabella Maher and sister to Ellen Bridget Maher late of Kew, Invercargill, who died 8 December 1966. In connection with land situated in Invercargill being Part of Lot 3 DP 448667 Computer Freehold Register 567732 (formerly Lot 3 DP 2381). If you can help please contact Sarah Anderson, Opus International Consultants Limited, Private Bag 1913, Dunedin 9054, ph 03 471 5525, fax 03 474 8995, email sarah. anderson@opus.co.nz. In the event that no or insufficient information is forthcoming by 28 September 2012, the requirements of the Public Works Act 1981 shall be deemed to have been satisfied.

This is an exciting opportunity to contribute to a significant development in criminal defence services in Christchurch.

FOR SALE

Would any lawyer holding a will for the above-named, late of 121 Victoria Street, Onehunga, Auckland, aged 65 years, laundry sorter, who died on 4 December 2010, please contact Ric Sinisa of Sinisa Law Ltd, PO Box 22853, Otahuhu, Auckland 1640, ph 09 270 2525, email ric@sinisalaw.co.nz.

Would any lawyer holding a will for the above-named, late of Taupo, born 30 April 1981, who died in Switzerland on 7 July 2012, please contact Lyn Hooper of Chris Rejthar & Associates, Lawyers, PO Box 13033, Tauranga 3141, ph 07 577 6565, fax 07 577 6202, email lyn@ rejtharlaw.co.nz.

SITUATION VACANT

Deputy Public Defender Based in Christchurch

We are seeking a Deputy Public Defender who will develop and lead a high quality criminal legal aid defence service in the Christchurch Courts. As part of a professional and dynamic service, you will report to the Public Defender, Southern and lead a team of committed lawyers.

We are seeking applications from well respected lawyers who have proven credibility with judges, peers and others in the legal community, with a speciality in criminal advocacy.

Your professional leadership and expertise in mentoring, coaching, training and criminal advocacy will ensure that lawyers within the Christchurch Public Defence Service are effective and well supported.

If you would like more information about the role, contact Sandy Baigent: sandy.baigent@justice.govt.nz To apply, please visit http://careers.justice.govt.nz Applications close on Friday, 14 September 2012.

32

KATRINA LYNNE MOORE

Legal Aid Services Debt Management Group Wellington is trying to locate the solicitor or firm that may have acted for the estate of the late Katrina Lynne Moore, born 9 June 1961, who died on 18 April 2007, last known addresses 4/25A Beach Road, Te Atatu, Waitakere 0610 or 28A Longburn Road, Henderson, Auckland 0610, please call 0800 600 090 and quote 02W147904.

LAWTALK 803 / 31 AUGUST 2012

PRACTICE FOR SALE Expressions of Interest sought for purchase of South Auckland practice operated by sole practitioner for 14 years.

Primarily conveyancing, commercial, wills and estates. Suit young practitioner wanting to escape big firm.

Expressions of interest labelled Private & Confidential to: Confidential Advertiser No 3-12 c\o Law Talk, PO Box 5041 Lambton Quay, Wellington 6145 or email advertising.lawtalk@lawsociety.org.nz.

SITUATIONS VACANT

Corporate Lawyer – Hamilton This is a great opportunity for an experienced Lawyer to join a small but busy in-house legal team in one of New Zealand’s largest Crown Research Institutes.

AgResearch’s purpose, through science and technology, is to enhance the value, productivity and profitability of New Zealand’s pastoral, agri-food and agri-technology industries, to contribute to economic growth and beneficial environmental and social outcomes for New Zealand.

Working right across the business, you’ll be responsible for providing legal advice to various managers, science groups and business units within AgResearch. This role involves advising on contracts, intellectual property, commercial ventures, compliance and policy, amongst other things, enabling you to contribute at all levels of the organisation.

Ideally, with a solid background of at least six years PQE in commercial law, you’ll bring to this role excellent contract drafting and communication skills, and will be committed to building relationships and delivering sound and pragmatic advice in a customer focused manner. Due to the nature of AgResearch’s business, experience in intellectual property is desirable.

In return we offer a diverse and challenging position within a commercial environment, excellent working conditions and an opportunity to contribute to the success and sustainability of New Zealand’s most important export sector.

To find out more visit our career site at www.agresearch.co.nz Applications close Monday, 17 September 2012.

Solicitor, Partnership opportunity Evans Henderson Woodbridge is a busy three partner firm based in Marton. The firm have a loyal and varied client base and are in the process of looking at their succession plans. With one partner looking to wind down into a consultant role, there is an opportunity for an experienced general practitioner to join the firm with a view to joining the partnership in time.

You will have a minimum of two years’ PQE, however, we would also welcome applications from more senior solicitors who might be ready for a more immediate partnership opportunity. With a good knowledge of private client matters and general commercial law this is your chance to relocate to a beautiful part of the country and enjoy a fantastic lifestyle for you and your family.

Marton boasts enviable options for secondary schooling with access to both Huntley Prep School, Nga Tawa and Wanganui Collegiate. Its central location means that you have easy access to Whanganui, Palmerston North and New Plymouth. If you are looking to enjoy New Zealand’s great outdoors this is an ideal location and with an easy commute and better work/life balance you will have the time to indulge your passions.

We are happy to consider solicitors from a wide variety of backgrounds so if you are interested in finding out more then please don’t hesitate to get in touch.

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

Helmore Bowron & Scott L aw ye rs

AUCKLAND OPTIONS IN HOUSE FINANCIAL SERVICES A fresh new role for a lawyer with approximately 3 - 5 years experience. Knowledge of Securities Law and Financial Products is a must including sound knowledge of processes, systems, policies and laws relevant to primary disclosure documentation.

You will love working in the new office space in a prime Auckland CBD location, in a collegial team environment. If you wish to pursue a career in the financial services industry, don’t hesitate – contact me today as this role won’t last long. Ref: 31087

CORPORATE COMMERCIAL Sterling role within a strong and growing large firm. Working with a fun team who value quality of work, know how to balance and support each other and enjoy life to the full. If you have around 5 years PQE please call me for a confidential discussion.

Ref: 29544

LITIGATION Very strong litigation practice in highly respected CBD firm.

Broad civil commercial litigation for quality clientele. What sets this apart – you will get to Court often and on interesting matters.

If this is what you’re looking for don’t go past this opportunity.

Ref: 30907 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.

191 Queen Street Auckland P +64 9 306 5500

40 Mercer Street Wellington P +64 4 499 6161

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

We are looking for a talented general practitioner who has a strong interest in litigation with approximately 4+ years post qualification experience to join us. If you are passionate about the law, committed to excellence and keen to explore the benefits of working in the rapidly growing North Canterbury area then please forward your CV and cover letter to kgh@helmores-law.co.nz.

For the right person, this is a chance to become fully immersed in a thriving practice, with definite career prospects.

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

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

LAWTALK 803 / 31 AUGUST 2012

33

SITUATION VACANT

Legal Counsel/Senior Legal Counsel WELLINGTON (ONE YEAR FIXED-TERM CONTRACT) The NZ Transport Agency (NZTA) is a Crown entity that contributes to an affordable, integrated, safe, responsive and sustainable land transport system.

We are looking for a lawyer to join the Planning and Network Operations team, which is part of the NZTA’s in-house legal team, for one year while another team member is seconded to a project. Based in Wellington, this role will appeal for its immense variety and challenge, and the opportunity to develop your legal skills in a rewarding environment.

Planning and Network Operations Team This team supports the effective delivery of legal services to the planning and network operation functions of the NZTA. The team plays a key role in assisting the NZTA to: • Influence statutory and non-statutory planning documents (such as a growth strategies, spatial plans, regional policy statements, or regional or district plans) • Develop consenting strategies and secure and implement consents, designations and other statutory authorisations for State highway projects • Influence third party resource consents, designations and plan changes to address effects on the State highway network • Manage other issues that arise in relation to the operation, maintenance and upgrading of the State highway network.

The role will involve providing legal advice and advocacy and assisting in negotiating and drafting agreements and other documents. The person appointed to the role will have input into developing the NZTA’s position on legislative development and assist in providing advice to the NZTA’s board and senior management. He or she will also liaise with internal customers and external legal providers to help the NZTA manage its legal risks effectively and obtain value for money from its legal spend.

Legal Counsel /Senior Legal Counsel The successful appointee will be able to demonstrate: • • • • •

Post Qualification Experience of four + years Experience with mediations, and Council/Commissioner and Environment Court hearings The ability to deliver successful outcomes in a demanding environment A strong customer service ethos, with excellent relationship-management skills A practical, solutions-focused approach.

Familiarity with issues relevant to road controlling authorities and/or public decision-making bodies would be advantageous.

To obtain a position description and application form, please visit our website www.nzta.govt.nz/about/careers/recruiting Applications must include a covering letter, CV and completed application form.

For any enquiries or to submit your application please email careers@nzta.govt.nz or call Diny on 04 894 6327.

Applications close 12pm Friday, 7 September 2012.

To be considered for this position, you must have a legal right to live and work in New Zealand.

www.nzta.govt.nz