LawTalk 810 by New Zealand Law Society

LAWTALK

7 DECEMBER 2012 / 810

FOR THE NZ LEGAL PROFESSION

EMPLOYEE OF THE YEAR

FE AT U R E – PAG E 6

PRACTISING WELL •LETTING GO OF YOUR WORK TAKING A BREAK • THE YEAR AHEAD

INSIDE

Rewarding relationships are built on trust

THE MAGAZINE

FEATURE: PRACTISING WELL

“The biggest risk to the “Unless people take it upon outlook is from a slowing themselves to achieve periods Australian economy.” of stillness they risk burn-out.” p. 11

Mazza

Vet, MAS Member

Cheetah

Tentative economic optimism ahead

Cleary Prize shared this year

Lifeline for lawyers

By RACHAEL BRECKON

Two lawyers have won the 2012 New Zealand Law Foundation Cleary Memorial Prize...

A major new feature was added to the Law Society’s Practising Well programme this year – a link to an independent, completely confidential counselling service...

A sea change may be in store for New Zealand lawyers in 2013, but considering the stormy 12 months weathered by many in 2012, smooth sailing is not predicted quite yet...

12 Family Court Proceedings Reform Bill Justice Minister Judith Collins introduced the Family Court Proceedings Reform Bill to Parliament on 27 November...

17 Research fellow will study crossexamination

You can trust MAS to understand your unique financial requirements. Most MAS Members are professionals and we have specialised in the professional sector for more than 90 years. Please contact us for more information on our financial products and services.

Emily Henderson will research the reform of crossexamination as the 2012 New Zealand Law Foundation International Research Fellow...

18 New Financial Assurance Manager Jeremy F Kennerley is the New Zealand Law Society’s new Financial Assurance Manager...

19 New Commerce Commission Enforcement Response Guidelines

By FRANK NEILL

8 Helping lawyers to practise well By FRANK NEILL

The Law Society’s Practising Well initiative began in 2009. Its genesis was a Law Society Women’s Consultative Group project...

By JOHN LAND

On 23 November, the Commerce Commission announced new guidelines... EMPLOYEE OF THE YEAR

David Martin

p. 9

20 Good faith in employment law By ELLIOT SIM

The 2012 Employment Law Conference explored some notable changes to employment law with the most important element being that of good faith...

Practising well includes relaxing and recharging

Travelling with proprietary information

By ELLIOT SIM

Yes. It really is December, already. We’re all scrambling toward the Christmas break with the promise of sleep-ins...

With four in 10 New Zealanders continuing to work while travelling, it is important to know the risks of carrying...

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FROM THE LAW SOCIET Y JONATHAN TEM M

his is the last LawTalk for 2012 and it is an appropriate time to reflect on the past year.

Not only has the economic downturn put continuing financial pressure on lawyers in every area of practice, but there has also been a raft of government policy changes and proposals that will impact directly on the profession. However, I would first like to mention the Canterbury practitioners who have had to balance the myriad of issues faced by the profession as a whole, along with the major ongoing consequences of the earthquakes. They remain in our thoughts at this time. I particularly wish them and their loved ones some peace at Christmas. We can only hope life in 2013 will be calmer for our Canterbury colleagues. Across the country legal aid has been a prominent and vexed issue. It has been exhausting for all those involved. I remain firmly of the view that the breadth and extent of nationwide changes to the practice of criminal law and the fixed fee regime are both unwarranted and unfair. A national solution has been applied which ignores the fact that the vast majority of lawyers doing legal aid work do it well and are hard-working, dedicated and skilled lawyers. In effect the legal profession is asked to further and heavily subsidise the taxpayer in the support of some of the most vulnerable people in our community. I am also mindful of all those practitioners in the Crown Solicitor network who are facing significant fiscal and work pressures. The underfunding of the criminal justice system simply cannot continue. Something has to give. One significant success is that after the profession voiced many concerns about the initial proposal, the Law Society welcomed a number of the proposed changes to the Legal Assistance (Sustainability) Bill announced by Justice Minister Judith Collins in October. Unfortunately it is not entirely over yet. The impact of legal aid and policy changes on the Family Court as well as the proposed restructure are still of concern. The Law Society, through the Family Law Section, will continue to advocate strongly on behalf of family lawyers and the users of the Family Court system. We must advocate for those communities and users of the Family Court with a strong and united voice.

LAWTALK 810 / 7 DECEMBER 2012

Looking to the future, the implementation of mandatory Continuing Professional Development is set to begin in the 2013/14 practising year. Lawyers need to ensure they fully understand and are upto-date with CPD changes. The profession needs to demonstrate ongoing legal education and professional development. The scheme is an exciting one that will help to ensure lawyers’ competency and professional standards are maintained and that New Zealand remains in line with international jurisdictions. This year has also seen changes to the requirements for practising on your own account. The key change has been a new requirement for completion of the Stepping Up course before a practitioner can become a barrister sole. It is important to acknowledge the excellent work the Law Reform committees do to uphold the Law Society’s statutory functions “to assist and promote, for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand, the reform of the law.” As President of the Society, Ministers, the Law Commission and government officials constantly tell me how highly this work is regarded. It can sometimes be disheartening to see “disgraced” lawyers and poor behaviour by colleagues continually appearing in the mainstream media. As with all professions, some do not perform to the same standard as others. But the vast majority of lawyers work to extremely high ethical standards and are held in very high regard by clients and their community. We are entitled to be proud as a profession of the service we render to our community. Most responsible, right-thinking New Zealanders judge us on this standard and not the lowest performers. On a personal note, my three-year term as Law Society President is coming to an end next April. It has been my privilege to represent the New Zealand profession both at home and abroad. Although 2012 has been a tough year for many sectors of the profession, it has brought to light both its resilience and perseverance. My hope for you all is that the Christmas period avails you some peace and downtime with family and friends. This year has proved beyond all doubt, we must take time to de-stress and relax. We must find time for ourselves. I wish you all a Merry Christmas and a productive 2013. Jonathan Temm New Zealand Law Society President

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

STREET ADDRESS: 26 Waring Taylor Street, Wellington Postal address: DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand EDITOR: Frank Neill Ph +64 4 463 2982 editor@lawsociety.org.nz WRITERS: Rachael Breckon Ph +64 4 463 2910 rachael.breckon@lawsociety.org.nz 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 … Framework for court excellence The Australasian Institute of Judicial Administration (AIJA) will present a further conference in the Asia Pacific Courts series in Auckland from 7-9 March 2013. The conference is entitled The Pursuit of Excellence & Innovation in Courts and Tribunals. The programme is designed to launch the latest version of the International Framework for Court Excellence and the sessions are designed to explore a number of aspects of promotion of excellence. The first event on the programme is the AIJA Oration to be given by Justice Geoffrey Ma, Chief Justice of Hong Kong.

The conference will allow delegates to meet face-to-face with service providers and country representatives across the globe in order to discover how best to take advantage of a globalised marketplace. This event will further inspire lawyers and outsourcing experts to set up their ventures, overcome their strategic and complex business issues and will help their management make key decisions which will eventually affect the growth of their organisations. This event is organised by Global Outsourcing Association of Lawyers (GOAL), a non-profit organisation established to provide global lawyers the most influential knowledge sourcing and networking platform in the field of LPO. See www.connect-goal. com/events/global-events/indiaapr2013.html.

A number of New Zealanders will present at the conference.

Wealth transfer practice

These include the Chief High Court Judge Justice Helen Winkelmann and Andrew Bridgman, Secretary for Justice and Chief Executive, Ministry of Justice, who will speak on Promoting innovative leadership and the role of leadership in planning innovation.

18th Annual International Wealth Transfer Practice Conference will be held in London on 4 and 5 March 2013.

Chief District Court Judge JanMarie Doogue and Judge Colin Doherty will speak on Judging the performance of judges. Barrister Dr Matthew Palmer will speak on Public reporting of courts’ performance – how is this best achieved. See www.lawyerseducation.co.nz/ shop/Conferences+2013/ AIJA+Conference.html.

It is presented by the International Bar Association (IBA) Individual Tax and Private Client Committee and supported by the IBA Family Law Committee and the IBA European Regional Forum.

Legal process outsourcing The Global Legal Process Outsourcing (LPO) Conference and Exhibition will be held in New Delhi, India, on 11 and 12 April 2013.

The theme of this conference is 2013 unlucky for some private clients, and certainly more complex for them all.

Now in its 18th year, this event regularly attracts over 150 eminent legal, business and regulatory professionals from more than 40 jurisdictions to examine the hottest issues involving international wealth transfer, private clients’ taxes, estate planning and much more. See www.ibanet.org/Conferences/ conferences_home.aspx.

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

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• 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 810 / 7 DECEMBER 2012

Chris Moore

Michelle Duggan

Mark Wilton

Auckland branch President

Nelson branch President

Wellington branch President

Rachel Dunningham

Donna Buckingham

Kathryn Crooks

Canterbury-Westland branch President

Otago branch President

Alistair Clarke

Tegs Burt

Grant Adam

Gisborne branch President

Southland branch President

CLANZ President

Jonathan Krebs

Rajan Rai

Garry Collin

Hawke's Bay branch President

Taranaki branch President

Family Law Section Chair

Chris Robertson

Bruce Hesketh

Chris Moore

Manawatu branch President

Waikato Bay of Plenty branch President

Property Law Section Chair

Whanganui branch President

Bryony Millar Marlborough branch President

NEW ZEALAND LAW SOCIETY NZLS EST 1869

LAWTALK 810 / 7 DECEMBER 2012

PRACTISING

WELL

LawTalk began 2012 with a feature on the Law Society’s Practising Well initiative. We end the year featuring Practising Well once again.

Lifeline for lawyers By FRANK NEILL A major new feature was added to the Law Society’s Practising Well programme this year – a link to an independent, completely confidential counselling service. The team of qualified professional counsellors at Lifeline Aotearoa is already taking calls and assisting lawyers, following the signing of a Memorandum of Understanding between Lifeline and the Law Society on 31 August. Lifeline provides a cost-free helpline service through its free phone at 0800 543 354 for people outside Auckland, or 522 2999 within Auckland. It is available 24 hours a day, seven days a week. When people ring the helpline service, the call is answered by trained personnel, says Lifeline’s Counselling and Support Room Manager, Elizabeth Defibaugh. “We don’t see it as a call centre. We see it as a counselling and support room.” The aim of the people operating this telephone counselling and support room is to listen and to enable coping, so that there would be a relief from whatever has been distressing. The idea, Ms Defibaugh says, is to give some space for people to talk through what has been going on, to get some clarity, to get some relief – “whether that is simply the relief of talking it out, or it might be to get some ideas of what the next steps might be.” A wide range of next steps arise. It may be, for example, that the next step is to agree to call back in a week and continue the conversation. Or it may be the next step is to talk to a family member or friend. Or it may be the next step is to see a counsellor in person (and Lifeline also offers a face-to-face counselling service), or it may be checking in with a doctor

LAWTALK 810 / 7 DECEMBER 2012

about some concerns. The advantage of face-to-face counselling is that you get to work with the same person who is hearing a continuing story “and you can build on what’s been done”. The advantage of the “counselling and support room” is that it’s more immediate. “It could be 11 o’clock at night. You can’t sleep. You want someone to talk to.” In that case, it is just a matter of picking up the phone. “People contact us for a wide range of reasons,” Ms Defibaugh says. “It can be anything from addiction to violence to abuse to relationship issues or work issues – all kinds of things crop up. “Anxiety and depression seem to be very common. Some of the other issues are relationships, financial stress, job stresses, isolation, no-one to talk to, feeling the need to be strong and carry on, but not knowing how to do it.” A major feature of the service is that it is completely confidential. In fact, callers do not need to give their name, although some prefer to, so that the call can be more conversational. Contacting the “counselling and support room” is just one of the options Lifeline provides lawyers. The other is ongoing counselling at a hugely discounted rate. For New Zealand Law Society members and families, Lifeline is offering this service at a discounted rate of $110 based on a normal 60 minute session. This compares with a normal rate in Auckland of around $185 for a 20 minute session. “That’s a huge discount,” Lifeline’s Corporate Relationship Manager Simon Johnston says. “But if you can’t afford it, just say.” Lifeline will not turn you away.

The ongoing counselling is accessed via either the 0800 543 354 number for people outside Auckland, or 522 2999 within Auckland. People using this service access qualified professional counsellors experienced in working with clients across a broad range of issues. All Lifeline’s counsellors are qualified to Masters level and are members of the New Zealand Association of Counsellors. Currently, the counselling is available face-to-face for people in Auckland, or by using Skype for people outside Auckland. At the same time, some people in Auckland prefer to use Skype for their counselling for a number of reasons, including avoiding travel difficulties or because they prefer to do the counselling from their own office. Some people, especially young people, prefer to use texting or email contact, rather than face-to-face counselling. This can be a preferred option as people start the process, when they are building trust and understanding. This can, at times, be a slow process, Mr Johnston says. Lifeline plans to roll out face-to-face counselling to other parts of New Zealand next year, with a particular aim of making this available in the major cities at least. The first will be Whangarei. Lifeline has appointed a Whangarei-based manager for the face-to-face service in Northland, Mr Johnston says. The new manager has started in the role, and Lifeline is about to announce the official launch date. While that date has yet to be set, it is likely to be mid January. Lifeline’s service is actively being used by lawyers, Mr Johnston says. LT

LAWTALK 810 / 7 DECEMBER 2012

PR ACTISING WELL

Helping lawyers to practise well

from the pressures of daily life and enjoying the experience of exploring a new country or city, but who can’t stop themselves from checking what friends and family are doing at home.”

By FRANK NEILL The Law Society’s Practising Well initiative began in 2009.

my.lawsociety.org.nz/practising_ well.

Its genesis was a Law Society Women’s Consultative Group project, investigating the effect of stress and resulting depressive disorders within the legal profession.

The Practising Well section of the website provides information on:

The Women’s Consultative Group prepared an article Lifting the veil of secrecy – depression in our profession, which was published in LawTalk 732 on 29 June 2009. After outlining the symptoms of depression and its consequences, and what people could do about it, the article asked for feedback from New Zealand lawyers to help ascertain the extent of depression in the profession and how the Law Society could provide support and assistance. “And remember, collectively we can make a difference. There is no need to struggle alone. It’s time to lift the veil of secrecy and confront this very real issue, in the interests of our profession,” the LawTalk article concluded. The article appeared with a message from then President John Marshall QC, who also said the Law Society would welcome any suggestions. Many lawyers responded to these two articles, contacting the Women’s Consultative Group or LawTalk. Some outlined their own experiences with depression and provided advice on how they had coped, while others offered support for the initiative. LawTalk published a series of articles based on the responses and the Law Society began development of its professional and personal support initiative. Practising Well was launched in December 2009, with a special webpage, which was further developed and expanded in April 2010 as part of the new my.lawsociety website.

Lifeline and the Law Society Lifeline Counselling has a team of qualified professional counsellors experienced in working with clients across a broad range of issues.

Addiction Information and resources about addiction, personal stories and suggestions for assistance.

Depression The legal profession is seen as having a relatively high incidence of depression. Information and resources about depression, personal stories and

Many aspects of being a lawyer can create stress, which can impact on physical and mental health if it is ongoing. Information and resources about stress, personal stories and suggestions for assistance.

Health and wellbeing Resources and information aimed at encouraging and assisting the pursuit of individual wellness.

National Friends Panel Information on the New Zealand Law Society’s professional support initiative.

Locum Panel A list of available locums. LT

By ELLIOT SIM Yes. It really is December, already. We’re all scrambling toward the Christmas break with the promise of sleep-ins, good weather (please), overeating and “popping bottles”, maybe even a trip away with the family. But how many of us are actually going to mentally break away from the office by disconnecting virtually? An AA Tourism survey released earlier this year would suggest not many, as it revealed Kiwis could not resist the urge to check emails while on holiday. The June 2012 survey polled 5,082 New Zealanders, showing four in 10 respondents were unable to switch off from work, monitoring business emails when taking time out of the office.

More information is available on the my.lawsociety website, http://

GM Marketing for AA Tourism Rebecca Cherry said the results were proof

LAWTALK 810 / 7 DECEMBER 2012

Stress

Practising well includes relaxing and recharging

Practising Well aims to provide a starting point for any lawyer who is concerned about their own welfare or that of their colleague. The focus is on getting lawyers “practising well”.

suggestions for assistance.

that New Zealanders had a hard time removing themselves from dealing with personal and business matters while on holiday. “The rise of smartphones, Wi-Fi and social networking has created a society that demands immediacy in responding to emails and text messages. “People should be maximising holidays and using them as an opportunity to relax and recharge. Instead, we are seeing more and more New Zealanders being unable to refrain from replying, even if they are on holiday,” she said. The survey suggested the fear of missing out on events and not knowing what family members were doing contributed to an impulse to check social networking sites. “It’s interesting to see the number of people who should be switching off

The New Zealand Travel and Technology statistics also revealed that eight in 10 (79%) of New Zealanders emailed while on holiday, 36% monitored work emails, 60% of respondents with a Facebook account logged in at least once during their trip, with 43% using the social network site for browsing followed by 23% using it to upload holiday snaps. Almost two thirds (64%) of the respondents said they couldn’t go without their mobile phone for more than a week. Former lawyer and United Nations human rights advisor Marianne Elliott, now author and yoga teacher, says one of the major changes she has seen in the workforce over the past 20 years was the way technology had led to people being connected and contactable all the time.

“

unless people take it upon themselves to achieve periods of stillness they risk burn-out.

”

DEBBIE DAWSON

us, this has resulted in anxiety about being ‘unplugged’ and risking the loss of critical and profitable clients.” She says unless people take it upon themselves to achieve “periods of stillness they risk burn-out”. “The key is accepting the value of recharging. “Only we can decide not to answer that text or switch off the phone or have a screen-free evening.” Ms Dawson says if people are truly concerned about producing quality work and furthering their careers, then knowing how to relax the mind is important. “To retain our ability to do good work and experience moments of brilliance, we actually need some space from our paid ‘hours-for-dollars’ work. This is why so many of our good ideas seem to occur to us when we are on holiday. There’s a message there.” LT

“Experience has taught me my productivity suffers, together with my mental and physical health and my relationships, when I don’t take digital breaks. And recent research suggests people who are constantly connected are at risk of developing mental disorders.”

The dangers of travelling with proprietary information

Ms Elliott says taking a complete break over the Christmas and New Year season is a “great way for me to refresh my mind, restore my motivation and reconnect with other things (and people) that matter to me”.

By ELLIOT SIM

“Last year I set the auto responder on my email and went off-line for two weeks. My boyfriend was happy, my clients all survived and I came back to work in the new year with new energy and inspiration,” she says. Debbie Dawson, fellow and board member of the Human Resources Institute of New Zealand, is a selfemployed consultant based in Christchurch working primarily in governance and leadership development, and has 20 years’ experience in human resources. Ms Dawson says the work environment “has sped up and the demands on employees have increased”. “For instance, lawyers now do business by email. Clients have higher expectations of response time and around-the-clock-access. “A text is now an acceptable form of business communication. For many of

With four in 10 New Zealanders continuing to work while travelling, it is important to know the risks of carrying proprietary information. An article in the New York Times 10 February 2012 showed the great lengths that a senior fellow in Foreign Policy and Global Economy and Development at Brookings Institution went through to protect his proprietary information when travelling abroad. Kenneth Lieberthal, a China expert, followed a strict routine fit for a classic spy movie. When travelling to China, he leaves his cell phone and laptop at home, opting to use “loaner” devices and wipes them clean as soon as he returns. Once he is in China, he disables the Bluetooth on his phone which he has on him at all times, as well as disabling Wi-Fi. When in meetings, he turns the phone off and removes the battery in case the microphone activates remotely. Internet connection is achieved through

an encrypted password-protected channel, by copying and pasting his passwords from USB thumb drive. He never types the password directly for fear of the Chinese installing keylogging software on his laptop. According to the article, this is now standard operating procedure for officials at American Government agencies, research groups and companies that do business in China and Russia – such as Google, the State Department and Internet security giant McAfee. These extreme measures to protect information may be overkill for most New Zealand law firms and travelling lawyers. However, the Internet, the rise in use of smartphones and employees plugging personal devices into workplace networks from remote locations means lawyers should take precautionary measures. Detective Clifford Clark, of the New Zealand Police NC3 National Cyber Crime Centre, says he doesn’t know

LAWTALK 810 / 7 DECEMBER 2012

PR ACTISING WELL of any instances of customs officials seizing devices, but there are good reasons and ways to protect important information. IT security, according to Detective Clark “is complex and vulnerabilities pop up without notice.” Keeping personal and work devices separate is important, he says. “Personal devices over work devices are inherently less secured due to owners usually not updating operating systems and security software as often as work devices. “Standardised consideration or training is helpful in regards to remote devices as this increases the level of vigilance in their usage.” He says the security of webmail and Internet browsing can be divided between the host and security at the end user location. “Webmail is usually secure at the host end depending on the host’s security measures or vulnerability. These are generally out of the hands of the end user with the exception of the passwords they use. “Webmail isn’t the ideal method for communication, especially due to the lack of control over the information therein, and there is a consideration for legal privilege issues if the account is combined with personal usage.” He says enterprise level email, such as Microsoft Outlook Web Access (OWA) combined with a Virtual Private Network (VPN) connection, or similar, would usually be the safer option. Passwords such as “Fiona1” simply don’t cut it. “Passwords must be sufficiently complex to avoid easy access by

“

It’s too much to ask for the average person to set up their own systems and manage a high level of security. It would be wise to obtain the assistance of a security expert to manage your security for you.

”

DETECTIVE Clifford Clark offenders. You should aim for at least eight characters and a combination of upper and lower case letters, numbers and special characters.” Using letters from your favourite book, journal, TV programme, film, or case, buffered by a few random symbols, would create a strong password according to Detective Clark. When accessing the Internet abroad, it is imperative to have a secure connection.

“When going online, don’t use Wi-Fi. It is not secure. Even your own Wi-Fi at work must be properly secured or you’ll leak information for everyone to see near your office. Use 3G, 4G, encrypted Wi-Fi or a hard-wired connection provided by a reliable source, not the airport lounge. “Look for ‘https’ in the line where you input the website address. If it just says ‘http’ it is not secure.” Detective Clark says any information which is for the owner’s eyes only should be contained within a device using volume encryption. This encrypts the entire device, otherwise known as ‘whole disk encryption’, where the device cannot start without a password. This type of encryption can be included on all your memory devices from your laptop to your USB stick. “When setting encryption up, you will need to choose a password or passphrase, but don’t forget it because you will not see your data again. Devices with Trusted Platform Modules (TPM) can provide good levels of security along with other forms of encryption. Also back up your data before you leave. “It’s too much to ask for the average person to set up their own systems and manage a high level of security. It would be wise to obtain the assistance of a security expert to manage your security for you, set up your encryption, and hold an override or master encryption key in case you do forget your password. “A few dollars spent now could save money in the future and avoid the embarrassment that would inevitably follow.” LT

The NC3 National Cyber Crime Centre says other security measures could include:

•

Update your operating system at every opportunity.

•

Update your email software and other applications before you leave.

•

Make sure you have anti-virus software installed, updated and working (but don’t rely on it).

•

Don’t use or even plug in USB sticks to your computer that you find or are given as free samples. They often have malicious software on them.

•

Activate and use a lock pin code on your SIM and cell phone (assume that if you lose it someone will try to access it).

•

Turn off Bluetooth and Wi-Fi unless you are using it.

•

Only take what you really need and assume that you will return without it. That way you’ll make sure you back up data and the sky will not collapse on you if you do lose it.

LAWTALK 810 / 7 DECEMBER 2012

Tentative economic optimism ahead By RACHAEL BRECKON A sea change may be in store for New Zealand lawyers in 2013, but considering the stormy 12 months weathered by many in 2012, smooth sailing is not predicted quite yet. The November BNZ confidence survey found fiscal expectations for the state of the New Zealand economy in a year’s time the highest since July 2011. The International Monetary Fund October 2012 report World Economic Outlook: Coping with High Debt and Sluggish Growth predicted the economy would grow by 3.1% next year and the NZX50 reached a five-year high on 26 November. However, the November quarterly predictions from the New Zealand Institute of Economic Research (NZIER) are more cautious and state that while the New Zealand economy is recovering it is slow and will remain so for another two to three years. During this slow recovery, jobs and income growth will be modest, businesses will invest only cautiously and interest rates will stay low at least until 2014. “The biggest risk to the outlook is from a slowing Australian economy. Australia accounts for a fifth of our exports, which have fallen by almost 10% in the last six months. This is a particular risk for the New Zealand economy and manufacturing exporters in particular,” NZIER principal economist Shamubeel Eaqub says. In terms of the residential property market, the chief executive officer of the Real Estate Institute of New Zealand, Helen O’Sullivan, says it has been tracking steadily upwards across all regional markets over the last 12 months, with the strongest growth in Auckland and Christchurch. “Christchurch obviously has unique drivers with the loss of 10-15% of housing in that market, and significant damage to an even greater number. Those issues will take a number of years to work through so we expect to see this market remain strong in the coming year,” Ms O’Sullivan says. “Some commentators expect that low interest rates will see increased investor interest in property, while those same low interest rates will continue to support buyer interest. Overall we

expect to see steady growth in volumes in the residential property market, albeit probably at slower rates than we have seen this year. “Increases in consent figures give us some hope that there will be new build properties coming to market, which is essential (particularly in Auckland) to relieve price pressure. Availability of property in the Auckland market in the under $500k price band remains problematic.” Looking off-shore, businesses that rely heavily on international markets are not expecting much economic respite next year. Global growth is weak and volatile, as the world is still dealing with the global financial and sovereign debt crises. Global politics and economics lay the foundation of 2013 predictions for Caroline Quay, general counsel at Fisher & Paykel Healthcare global headquarters in Auckland. “There has been uncertainty in recent years from the European sovereign debt crisis, the continuing impact of natural disasters like the earthquake and tsunami in Japan (and closer to home, the Christchurch earthquakes), the conflict and turmoil in the Middle East, and the impending fiscal cliff in the USA,” she says. The continuing global financial uncertainty increases the focus on cost controls in all organisations, she says. “There will continue to be pressure in 2013 for in-house legal teams to manage costs closely. In-house legal teams will need to look for innovative ways to deliver legal services and to find efficiency gains in the face of tightening budgets and resource constraints,” she says. Fisher & Paykel Healthcare’s key method of achieving efficiency gains is through embracing technology. The company has built a global legal compliance system and an online legal file management system. Next year looks to be no different, Ms Quay says, and they will continue to look at other technological innovations to capitalise on further efficiency gains. The global financial crisis has resulted

in heightened regulatory environments with regulatory reforms and responses extended beyond the financial sector. “The trend of increased regulatory activity in all industries will continue into 2013 and beyond,” Ms Quay predicts. “One area of focus has been on governance in the area of bribery, fraud and corruption. Locally, finance companies’ failures have also put a spotlight on governance in many organisations.” New Zealand in-house counsel will find an increased demand for legal services in these areas, and will need to stay proactively involved and up-to-date with the emergence and development of new regulations and laws. This will be coupled with “the talent challenge” as organisations struggle to find the right talent and skill fit, according to Ms Quay. She advises in-house lawyers to understand the impact of these uncertain times on their organisation in order to continue to add value and contribute by providing contextually relevant legal solutions. “Keep abreast with the increased regulatory activity and its impact on your industry and your organisation. This will enable you to offer solutions and ensure compliance in a proactive rather than reactive manner,” she says. General Counsel and company secretary of Z Energy, Meredith Ussher says that the Pike River Report and what it might mean for businesses, changes to the Commerce Act and Cartel laws will be prominent in 2013. “We were [one of the first companies] to do a bond issue under the new Financial Management Act (FMA) guidelines, so we are lucky to have had that experience already,” she says. “But as the FMA continues to ramp up – that will be the big thing facing in-house teams.” The scheduled sale of State Owned Enterprises could also make life busy for some in-house departments, Ms Ussher says. This is the first in a series of articles on predictions in 2013. LT

LAWTALK 810 / 7 DECEMBER 2012

Justice Minister Judith Collins introduced the Family Court Proceedings Reform Bill to Parliament on 27 November. The Bill makes significant changes to the Care of Children Act 2004 (COCA) and the Family Courts Act, which is renamed the Family Disputes (Resolution Methods) Act 1980 (FDRMA).

Lawyers in the Court The Bill significantly restricts the right of lawyers to appear in the Family Court. A new s7A has been added to COCA which provides that a lawyer may act for a party in a proceeding under the Act, commenced by application made: a. without notice, or

Lawyer for Child

b. in international Hague proceedings, or

S7 of COCA has been amended and provides that the Court may appoint a lawyer to represent a child, if the Court:

c. if the party to a proceeding is the Crown, or

a. has concerns for the safety or well-being of the child; and b. considers an appointment necessary. A new s9A has been added to the FDRMA, defining the role of a lawyer for child as being: a. to act for the child in a way that the lawyer considers promotes the child’s welfare and best interests; b. to ensure that the views expressed by the child in matters affecting the child that are relevant to the proceedings are communicated to the Court; c. to assist the parties to reach agreement on matters in dispute, to the extent to which doing so is in the best interests of the child; d. to provide advice to the child regarding appeals; and e. to undertake any such other task required by or under any other Act.

Lawyer to Assist The role of lawyer to assist is defined by new s9B of the FDRMA as: a. to provide independent legal advice to the Court in any complex factual or legal issue. b. to offer an impartial perspective in relation to any issue arising in the proceedings. c. to undertake any other task required by or under any other Act.

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

T 03 3793 720 M 021 244 3346 E duncan.webb@laneneave.co.nz

www.laneneave.co.nz

LAWTALK 810 / 7 DECEMBER 2012

d. if a proceeding is defended and a Judge has directed the issues in dispute between the parties proceed to a hearing. The section does not prevent lawyers from giving legal advice to a party, or preparing any document for a party.

Family Dispute Resolution The provisions relating to Family Dispute Resolution are contained in a new Part 1 of the FDRMA. In summary, any application for a guardianship dispute or a Parenting Order must be accompanied by a family dispute resolution form, which provides either that family dispute resolution has occurred, or that it is inappropriate to start or continue with family dispute resolution.

LawTalk readership survey LawTalk carried out a readership survey in October and November 2012. The survey was included in LawTalk 807, published on 26 October, and reminders were also carried in the weekly LawPoints e-newsletter.

possible to provide a magazine which meets all needs. Our focus remains on providing information which assists the effective practice of law in New Zealand and keeps lawyers aware of the activities and role of the Law Society.

Everyone who participated in the survey is thanked for their input. There was a good response rate and the results show that LawTalk is very highly regarded by its readers.

• The regular features which are most frequently read are NZLS CLE Ltd Programmes, People in the Law, Coming Up…, Law Reform Report and Effective Practice.

To encourage responses, everyone who responded by the closing date for the survey was invited to enter their details into a draw for one of two 16GB Apple iPod Touch devices. The two lucky winners were Ron Craig (Chambers Craig Jarvis Ltd, Auckland) and Kitty Lin (Simpson Grierson, Auckland).

Logo

Family Court Proceedings Reform Bill

An earlier readership survey was carried out in 2010 and the feedback from that was used to make some changes to the format of the magazine in 2012. We realise that with 11,500 lawyers of all ages, practising in different locations and fields of law, it will never be

Parties will be required to either pay privately for FDR, or seek an exemption which may be available if they are eligible for legal aid.

Some findings from the latest survey:

• A very high proportion of respondents (90%) felt that LawTalk did a good job of keeping them updated on Law Society activities. It was also encouraging that most respondents said we were good or very good for the quality of writing (88%), updating them on the legal profession (87%), easy to read (86%) and design (83%). • Just under half (49%) of respondents said they read LawTalk within 15 minutes, and 88% read it in under half an hour. We appreciate that there is a huge amount of information for

Interim Orders There are new provisions relating to the making of interim orders contained in new ss49 and 49A of COCA.

Domestic Violence It is proposed to repeal ss58-62 of COCA. In effect, these are replaced by the mandatory requirement in what is now principle 5(a) that a child’s safety must be protected, and the amended s59, which provides that the Court may make an order for supervised contact if the Court is not satisfied that the child will be safe with a contact parent.

Conclusion As LawTalk goes to print, it is not yet known when this Bill will receive its first reading, or when submissions will be called for. The Family Law Section is preparing the Law Society’s submission and will keep members advised. LT

• Half the respondents (48%) wanted to receive LawTalk fortnightly, while 18% wanted it weekly and a relatively high 32% monthly. While LawTalk will continue to be published fortnightly in 2013, we will also continue to keep a close watch on changes in the delivery of and expectations for information about the legal profession. • A number of respondents also requested an online version of LawTalk. Earlier in 2012 we started putting a readable version of the magazine online (at www. lawsociety.org.nz/home/nzls_ services_for_lawyers/lawtalk) and watch for some exciting developments when the Law Society relaunches its website in early 2013. • Questions were also asked about the packaging used for LawTalk. This is wrapped in degradable filmwrap, which is 100% recyclable. LT

The Auckland LLM

Parenting Through Separation An application for a Parenting Order must be accompanied by a statement that the applicant has undertaken a parenting information programme within the preceding two years, or is unable to participate effectively. There is no requirement that a respondent undertake a similar programme.

lawyers to digest and will continue to try to provide an interesting blend of short and longer items.

The University of Auckland offers New Zealand’s largest and most comprehensive LLM programme, which you can complete in four courses, full-time over one year, or part-time over four years. Choose from a wide range of courses taught by visiting professors from some of the world’s leading law schools and Auckland’s own leading experts. Here are the courses we still have places in for 2013: Comparative Sentencing - Regulatory Offences Comparative Water Law and Policy Contract Interpretation Protection of the Marine Environment Commercial Equity Corporate Finance International Environmental Law Comparative Corporate Governance Global Environmental Governance International Intellectual Property

Law of Evidence Regulation of Health Care Comparative Indigenous Peoples and the Law Criminal Law and Policy Insolvency Mining, Energy and Natural Resources Law Legal Research Methodology Corporate Governance Rights, Courts and Democracy in NZ: Comparative Perspectives Commercial Fraud – the Use and Abuse of Equity and Trusts

Copyright Mediation International Sales International Arbitration Climate Change Law Human Rights Litigation Competition Law and Policy Selected Issues in International Law Resource Management Privacy Law

Time constraints can be one of the biggest deterrents to further study. This is why the postgraduate programme has been structured to allow flexibility. We offer three options for study: full semester taught courses, intensive taught courses, and a research programme. We now offer six specialisations to choose from: Corporate and Commercial Law, Environmental Law, Human Rights Law, International Law, Litigation and Dispute Resolution, and Public Law. If you would like further information please contact: Scott Pilkington, Postgraduate Student Advisor Phone: +64 9 923 2123 Email: s.pilkington@auckland.ac.nz Web: www.law.auckland.ac.nz

LAWTALK 810 / 7 DECEMBER 2012

PEOPLE IN THE L AW

PEOPLE IN THE LAW 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.

PEOPLE Otago Law student Louis Chambers has been selected as a Rhodes Scholar to study at Oxford University next year. Louis was one of three students selected nationally and the only law student, after a meeting chaired by Governor-General Sir Jerry Mateparae at Government House in Wellington. Louis will graduate from Otago University with an LLB(Hons) and a BA Governor-General Sir Jerry Mataparae (left) majoring in economics, with and 2013 Rhodes Scholar Louis Chambers at a minor in environmental Government House. management. Louis founded Generation Zero, a group that advocated for responsible policy changes to reduce New Zealand’s emissions as well as being one of the instigators of the Public Interest Law Network where law students work to promote public interest law issues. He has also been a successful competitor in law competitions both nationally and internationally and was the Otago University Debating Society president for more than two years. Louis plans to study for a Bachelor of Civil Law in his first year at Oxford and a Master of Science in environmental change and management in his second year. Wellington lawyer Maya Shino is one of twelve AMP National Scholarship recipients for 2012. The scholarships are to reward “great Kiwis” who are doing outstanding things in their fields and who “need some help to do their thing”. Ms Shino was presented her award by the Governor-General, Sir Jerry Mateparae, at the awards ceremony at Auckland Museum on 23 November. Ms

LAWTALK 810 / 7 DECEMBER 2012

Shino founded LawSpot (www.lawspot.org.nz), a nonprofit website where Kiwis can post their legal questions and receive free answers from qualified lawyer volunteers. “LawSpot is changing the way NZ’s volunteer organisations see themselves, by opening up the use of web-based tools and paving the way for more public-private partnerships in community service delivery,” she says. “Short-term, I want to see LawSpot adopted nationally by law centres and lawyer volunteers. Ultimately I want to see LawSpot adopted overseas too (since the project is easily scaleable and the site has an open-source code base). My goal is to create LawSpot into a site of global social benefit.” Ms Shino is a solicitor at Russell McVeagh. You can find out more about Maya’s motivation for founding LawSpot at www.youtube. com/watch?v=YUP_oHGdbuE. If you’re interested in volunteering for LawSpot, please contact volunteer@lawspot. org.nz. LawSpot is also looking for a primary corporate sponsor. Please contact partnerships@lawspot.org.nz if your employer or firm could be interested. Christchurch Crown prosecutor Kerryn Beaton has been appointed Deputy Public Defender for the Public Defence Service (PDS) in Christchurch. Ms Beaton started work with the Ministry of Justice on 29 November and will lead the Christchurch PDS office when it opens on 17 December. She will manage a team of 14 criminal lawyers – a mix of senior through to junior – in providing legal aid services in Christchurch, and will oversee the operation of the duty lawyer service at the Christchurch courts. Director of the Public Defence Service Brendan Horsley says Kerryn is an experienced criminal lawyer. She has practised for 16 years, including as a Crown prosecutor in Christchurch. She recently became a barrister sole and was one of three lawyers assisting the Royal Commission of Inquiry into the Pike River Coal Mine disaster. She has a particular interest in the training and mentoring aspect of the DPD role as a means of developing the careers of junior and intermediate lawyers and to ensure PDS clients receive high quality representation. Her legal career began in Invercargill in 1996, where she practised first as a staff solicitor at Eagles, Eagles and Redpath before going on to work as a Crown prosecutor at Preston Russell Law. She started practice in Christchurch in 2002, working as a senior Crown prosecutor at Raymond Donnelly & Co until 2011.

Gibson Sheat partner Tim Anderson has been appointed New Zealand Trade Commissioner to Indonesia. Mr Anderson is fluent in Bahasa Indonesia, and has been actively involved in Indonesia since 1993. He has worked there as a business adviser and also in his role with Gibson Sheat. He is a member of the ASEAN-NZ Business Council and the NZ Indonesia Association and is on the steering committee of the NZ-Indonesia Friendship Council. His final day with Gibson Sheat was 2 November. Auckland lawyer Brian Everett has been elected to a second term as vice-chairman of Lawyers Associated Worldwide (LAW). LAW is a global association of over 100 independent law firms located in more than 180 major commercial centres throughout the world. A partner of Duthie Whyte Lawyers in Auckland, Mr Everett was elected at LAW’s recent annual general meeting in Auckland. Nearly 100 delegates from over 30 countries attended the annual meeting, hosted by Duthie Whyte. In addition to serving as vice-chairman of LAW, Mr Everett also chairs LAW’s Recruiting Committee, which supervises the strategic admission of all new members to the international network. He also presented at the annual meeting, together with an Australian LAW member, on The Anzac Relationship: Despite its speed bumps, it is alive and well. Waikato University law Professor Barry Barton is helping reform the law for the future of carbon capture and storage (CCS) in New Zealand. At present, New Zealand law does not provide for CCS. The director of the University of Waikato Centre for Environmental, Resources and Energy Law (CEREL), Professor Barton is working with government and industry insiders to develop a legal and

regulatory framework for CCS. He has been awarded a $245,000 grant from the Ministry of Business, Innovation and Employment, and will be working with CEREL and international carbon capture experts from Australia, Canada, the United States, the European Union and Norway to draft the framework. CCS uses existing technology to separate the carbon dioxide from emissions at sources such as power stations burning coal or natural gas, or from industrial sources, and then it’s injected into geological formations such as depleted gas reservoirs, or deep saline aquifers. “Basically this law is about climate change,” says Professor Barton. “CCS is a method of reducing the emissions of greenhouse gases. In New Zealand, CCS is unlikely ever to play a major role in reducing emissions; but climate change is a huge problem, and we need every possible tool at our disposal.” The research involves a close study of liability and risk management, and of integration with existing laws like the Resource Management Act. The recommendations for the law will be delivered in June next year.

ON THE MOVE Papprills Lawyers of Christchurch has appointed Margaret Smyth a partner of the firm. Her appointment took effect on 1 December. Margaret joined Papprills as a senior solicitor and has been with the firm for five years. She has a wide range of litigation and dispute resolution experience in criminal, family, civil and employment law and has a special interest in medicolegal matters.

has joined Duncan Cotterill Lawyers as special counsel. Catherine returns to Duncan Cotterill after four years with the resources company. She will specialise in the construction/ commercial sector, with a particular emphasis on joint ventures and PPPs. Matthew McGoldrick has joined Swarbrick Beck Mackinnon as an associate. Before joining Swarbrick Beck Mackinnon, Matthew was employed as a solicitor in the Wellington employment law practice of a national law firm, and in the employment law practice of the Wellington Crown Solicitor’s office. He has recently returned to New Zealand, having worked for the past 18 months with Rosling King LLP in London. Two solicitors have joined Malloy Goodwin Harford in Auckland. Katrina Wilson is a property and commercial lawyer who previously worked on Auckland’s North Shore for several commercial boutique law firms. She assists both private and business clients in all aspects of their residential and commercial dealings. Sacha Yanke is a junior property and commercial lawyer with a special interest in private client matters. She joins Malloy Goodwin Harford from a large national firm. Penny Elliott has been made an associate at WCM LEGAL. She has been with the firm for five years, having previously (before having a family)

Catherine Schache, formerly General Manager of the legal team at Solid Energy, I welcome instructions in these areas: • Family Matters • Employment Law

• Civil Litigation • Disciplinary Tribunals

Jeremy@jeremysutton.co.nz 3rd Floor, Parkview Tower 28 Davies Ave, Manukau 2241 Tel (09) 263 6953 - mob 021 369 488

and

Level 1, Landmark House 187 Queen Street, Auckland www.jeremysutton.co.nz

LAWTALK 810 / 7 DECEMBER 2012

PEOPLE IN THE L AW

been a partner of Treadwells – then known as Stacey Smith & Billington – and an associate at Johnston Lawrence. Penny practices out of WCM LEGAL’s Greytown Office and her specialist areas include rural and residential conveyancing, resource management, wills and trusts.

LAW FIRM NEWS

A former Crown prosecutor, Dr Henderson is currently an honorary research fellow at Auckland University’s Department of Psychology and is completing a study of expert witnesses with Professor Fred Seymour. She is the first woman recipient of the fellowship in the 10 years it has been running. Cross-examination is not a new research area for Dr Henderson. Her 2001 PhD from Cambridge was awarded for her thesis on Crossexamination: A Critical Examination. With their National Sustainable Business award (from left) Sebastien Aymeric, Jonathan Lucas and Kirsty Grant from James & Wells.

James & Wells Intellectual Property added the National Sustainable Business Network Medium Business (Trailblazer) Award to its trophy cabinet on 23 November.

“WHAT A GREAT EXPERIENCE” “ As I begin this next phase, I cannot help but think that without you all and what we achieved last year, I would not be here.”

Carlyle Rogers

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Make a real contribution to your career or business.

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Email enquiries@collaw.ac.nz

LAWTALK 810 / 7 DECEMBER 2012

Emily Henderson will research the reform of cross-examination as the 2012 New Zealand Law Foundation International Research Fellow. Her award of the fellowship was announced at the New Zealand Law Foundation 2012 Annual Awards Dinner, hosted by Justice Minister Judith Collins at Parliament’s Grand Hall on 29 November.

Lewis Grant has joined the partnership of Martelli McKegg in Auckland. Lewis’s specialties include trust law, trusteeships, dispute resolution, charitable trusts and succession. Jackson Russell has appointed Patricia Lavus an associate in the family law team. Patricia is passionate about family law and has expertise in relationship property, trusts, testamentary promises, family protection and care of children.

Research fellow will study cross-examination

The specialist IP firm took the top spot over the other regional category winner and finalist, Sharp Tudhope Lawyers. (The regional wins of James & Wells and Sharp Tudhope Lawyers featured in LawTalk 807, 26 October 2012, p13.) James & Wells Intellectual Property was the first IP law firm in the world to achieve CEMARS certification, meaning the company measures and manages its greenhouse gas emissions. New technology and the ongoing development of online tools and services have led to measurable cost savings, a move towards paperless offices, and the ability for the firm’s staff to work remotely from anywhere, anytime. James & Wells also sponsors Kiwi charity Sustainable Coastlines, with staff taking part in beach cleanup days and the firm donating 5% of professional fees from clients who belong to the Sustainable Business Network, Sustainable Business Council, or who have CEMARS certification, to the charity. Andrew Seton Law of Mt Albert, Auckland, has taken over the client base of Kate Langham Law. Kate Langham is staying on as a solicitor at the firm. The firm has also relocated premises to First Floor, Mt Albert Village, 945a New North Road, Mt Albert. All other contact details remain the same. LT

In 1997, Auckland University awarded her a Masters of Jurisprudence with distinction for her thesis ‘Reckless Disregard’ Cross-examining Child Witnesses in Sexual Abuse Trials. As the Law Foundation’s International Research Fellow, she will study the reform of cross-examination, based on an analysis of its fundamental purpose within the fair criminal trial. She will use the emergent theory of cross-examination to analyse whether the reform options meet the underlying

“

a powerful case has been made that conventional cross-examination in criminal trials is a poor means of testing the accuracy, veracity and completeness of vulnerable witnesses’ evidence.

”

EMILY HENDERSON principles of a fair trial and to consider the extent to which cross-examination may be able to be repaired rather than replaced. “In the last 30 years,” she says, “a powerful case has been made that conventional cross-examination in criminal trials is a poor means of testing the accuracy, veracity and

Cleary Prize shared this year

Ms Harwood, who has a strong interest in human rights law, was recently offered a position as a PhD researcher at Leiden University in the Netherlands.

“Even the legal professional bodies of countries such as New Zealand, Emily Henderson and England and Wales now publicly accept that crossexamination must be reformed. “However, it is crucial to ensure the vital human rights of the accused are protected by whatever reform option we choose. The point of the study will be to evaluate how best to ensure a fair trial for everybody.” Part one of her study will explore the case against cross-examination. Part two will explore the case for crossexamination. Part three will evaluate the reform options, which are divided into two camps: the rehabilitative and the replacement options. The final chapter will draw together the conclusions of the evaluation of the options and make recommendations regarding future reform in New Zealand. The International Research Fellowship is New Zealand’s premier legal research award. Valued at up to $125,000, it is awarded annually to enable a person of outstanding ability to undertake legal research that will make a significant contribution to New Zealand. LT with first class honours and a BA in sociology. She represented Victoria University at the 2008 Vis Moot in Vienna, where the team placed third of the 203 teams entered.

Two lawyers have won the 2012 New Zealand Law Foundation Cleary Memorial Prize. Catherine Harwood and Rebecca Rose were announced as this year’s winners at the Law Foundation’s 2012 Annual Awards Dinner, hosted by Justice Minister Judith Collins at Parliament’s Grand Hall on 29 November.

completeness of vulnerable witnesses’ evidence and (it) has an unduly detrimental effect upon them.

Catherine Harwood

Rebecca Rose

The PhD position is part of a project exploring multiple investigations of international crimes in conflict and post-conflict situations. It takes her back to the university where she recently graduated LLM cum laude in advanced legal studies in public international law. Ms Harwood graduated from Victoria University in 2009 with an LLB

In 2010 she established the mentoring scheme Learner to Lawyer, which matches students with young lawyers in Wellington. She also mentored Porirua College students in the Professional Pathways programme, was a student mentor to first year law students, and an active member of the Wellington Young Lawyers’ Association. As well as being a student editor of law journals published by both Victoria and Leiden Universities, Ms Harwood wrote the Rotary Scholars’ Handbook, which assists scholarship students preparing to move to New Zealand.

LAWTALK 810 / 7 DECEMBER 2012

L AND ON COMPETITION L AW

PEOPLE IN THE L AW Ms Harwood is currently an unfunded intern in Chambers at the International Criminal Court in The Hague and has previously interned at the IBA programme on the ICC. Before that she held various roles at Victoria University and commercial law firms, including being a litigation paralegal at Freehills in Sydney. From February 2009 to February 2011, she was a judge’s clerk at the Court of Appeal. Her long-term goals include working to achieve greater co-operation between New Zealand and other Pacific nations to strengthen human rights protections in the region. Ms Rose graduated from Waikato University with a conjoint LLB (first class honours) and Bachelor of Management Studies (Economics) degree in 2009, coming top in both degrees. She was admitted in New Zealand in October 2009.

From 2010 to 2011, Ms Rose took her LLM at Cambridge University as a W M Tapp Scholar. This year she was admitted in the Cook Islands, where she has worked largely on a pro bono basis in connection with the Cook Islands Crown Law Office since 2008. Of Māori and Dutch descent, Ms Rose enjoys teaching and has pursued this in Wellington principally through teaching fellow roles. She has worked as a tutor and as a Māori mentor at Victoria and Waikato Universities. Although Ms Rose is yet to finally decide on her preferred time-split between legal practice and academic teaching, she is determined to contribute meaningfully to academic discussion and professional debate in New Zealand. Ms Rose has been involved in various community activities and professional organisations, such as the Environmental Defence Society and

LEANZ, an organisation dedicated to the advancement of the understanding of law and economics.

New Commerce Commission Enforcement Response Guidelines

Judging student competitions is another feature of her involvement in the profession. She has judged mooting competitions at Auckland University and at various Victoria University and national-level mooting, client interviewing and negotiation competitions.

By John Land*

Ms Rose is a former student of Fairfield College, Hamilton, where she was Dux and deputy Head Girl. She is currently a solicitor in the general litigation and dispute resolution team at Chapman Tripp in Auckland. Before that she was intern to the Solicitor-General, David Collins QC, at the Crown Law Office, Wellington. From February 2008 to February 2010, she was a judge’s clerk in the Supreme Court to Justice Blanchard. LT

New Financial Assurance Manager Jeremy F Kennerley is the New Zealand Law Society’s new Financial Assurance Manager. The Financial Assurance Scheme was established in 1998 with the aim Jeremy Kennerley of protecting money entrusted to law practices. It includes an inspectorate, currently comprising the Financial Assurance Manager and eight inspectors, who are located in Auckland (3), Hamilton (1), Wellington (2) and Christchurch (2). Originally from London, Mr Kennerley trained as a chartered accountant in England and came to New Zealand in 1992, joining Price Waterhouse as it was known then. He worked for Price Waterhouse for 3½ years, including in audit, business services, tax and corporate services. However, he did not want to pursue partnership, so joined the Racing Industry Board, before it was merged with the TAB, as business development manager. From 1996, Mr Kennerley was chief executive of the Nursery and Garden Industry Association, Athletics New Zealand and the Greyhound Racing

LAWTALK 810 / 7 DECEMBER 2012

Industry, of which he also previously served as inaugural chair in 2002-03. After about a decade in chief executive roles, Mr Kennerley looked to move into a larger organisation, and joined the New Zealand Institute of Chartered Accountants, heading up its practice review (now quality review) function. That function was, he says, very similar to the role the inspectorate at the Law Society performs. He was in that role for around 2½ years, then worked on contract between leaving the Institute of Chartered Accountants and joining the Law Society. Always having had an interest in education, Mr Kennerley has been involved in what we now call continuing professional development.

WELCOME TO THE PROFESSION

For the last 16 years, he has presented and facilitated workshops for trainee accountants and marked examination papers for the Institute of Chartered Accountants. He has also provided professional education delivery and related activities for other organisations. Mr Kennerley is married to Moira, who is a New Zealander, and they have three children, Tom and William, who are studying at Victoria University, and Hannah, who is in year 13 at school. He is active in sport, including running, mountain biking and racquet sports. He currently coaches tennis and is, he says, a “big fan” of the All Blacks, particularly when they beat the English! He also thoroughly enjoys gardening. LT

LawTalk welcomes the following recently admitted lawyers to the profession. Rotorua Casey Pare Haumaha Nelson Amanda Kate Thomas

On 23 November, the Commerce Commission announced new guidelines concerning how its Competition Branch enforces the consumer and competition legislation for which the commission is responsible.1 Knowledge of the guidelines will be important to advisers seeking to avoid clients incurring the expense and potential liability involved with defending proceedings by the commission. However, it is also important to be aware of some of the risks to clients involved with enforcement responses by the commission that involve something less than litigation. In particular, warning letters by the commission and out-ofcourt settlements with the commission can have serious consequences. The guidelines set out a “compliance pyramid” listing different forms of response available to the commission. At the base of the compliance pyramid are the commission’s no-enforcement compliance tools such as education and advocacy. This is then followed by: •

low level responses such as the issue of a compliance advice letter or warning letter;

•

the seeking of an out-of-court settlement;

•

(in relation to the Commerce Act 1986) the seeking of a cease and desist order to prevent action that would breach the Commerce Act;

•

bringing civil or criminal proceedings.

The guidelines summarise the factors that the commission will take into account in deciding what level of response will be appropriate. Knowledge by advisers of the enforcement response guidelines (read together with the commission’s established enforcement criteria2) will be valuable in tailoring submissions to the commission about a particular investigation. It will often be appropriate not just to address the merits of an alleged breach of the Commerce Act, Fair Trading Act 1986 or Credit Contracts and Consumer Finance Act 2003, but also to address other matters 1 Commerce Commission Enforcement Response Guidelines, November 2012, available online at www.comcom.govt.nz/ enforcement-response-guidelines/. 2 Commerce Commission Enforcement Criteria, available online at www.comcom.govt.nz/enforcement-criteria/.

that would be relevant to whether the commission should take a relatively low level enforcement response. For example, it may be appropriate to provide the commission with relevant details relating to the minimal level of harm involved, the ability to remedy any harm, the accidental nature of the conduct, the co-operative attitude of the firm under investigation and why there is no need for a precedent case in the particular situation. The Enforcement Response Guidelines set out a helpful list of circumstances when the commission is likely to determine that it is necessary to issue court proceedings.3 The guidelines also set out the factors that will be taken into account in deciding whether to take enforcement action against an individual involved in a company’s breach of legislation enforced by the commission. These factors include the individual’s role within the company, whether the individual acted deliberately or was a ringleader, whether the individual has benefited personally from the breach, whether the individual previously breached the relevant legislation, whether the individual is likely to repeat the behaviour in question and whether enforcement action against the company alone is sufficient to achieve the objectives of the investigation.4 Defending proceedings by the Commerce Commission can be very expensive and can give rise to very substantial financial risks. For example, under the Commerce Act, the maximum penalty for breach of the restrictive trade practices provisions of the Act is $500,000 for an individual. For a company, the maximum penalty is $10 million or three times the financial gain or (in the case where the financial gain is not ascertainable) 10% of the firm’s turnover.5 An understanding of the commission’s Enforcement Criteria and Enforcement Response Guidelines will be important to the advisers who are going to influence the commission’s decision as to the level of enforcement response, and in particular whether the commission chooses to bring court proceedings. 3 Commerce Commission Enforcement Response Guidelines, November 2012, para. 44. 4 Commerce Commission Enforcement Response Guidelines, November 2012, para. 21. 5 Section 80 (2B) Commerce Act 1986.

It is worth noting, however, the significant risks that can still be involved in a lower level response by the commission. For example, in relation to warning letters, the Commerce Commission Enforcement Response Guidelines say:6 “The Commission may publicise in any media or on its website that it has issued a warning letter to a specific recipient, and the content of the warning. The Commission may also publish a list of issued warnings, including the names of recipients, in its public accountability publications. This information, and copies of warning letters, may also be required to be disclosed under the Official Information Act 1982.” With the power of the Internet, published warning letters by the commission will likely come to the attention of competitors or customers of a firm or business that is the subject of the warning letter. The commission frequently issues media releases about warnings that it has given. Further, in relation to warnings under the Commerce Act the commission has indicated that it will publish all warnings made since January 2011 on its Commerce Act enforcement actions register7. The risk, then, is that competitors or customers who become aware of a breach of legislation enforced by the commission will sue for damages if they have suffered loss due to the breach. The risks of private action being brought are even greater following an administrative (or out-of-court) settlement with the commission. The commission will usually require as part of an administrative settlement that the firm involved make an admission of liability.8 Administrative settlements are usually publicised by commission media release and will also be noted on the commission’s Commerce Act Enforcement Actions Register (for Commerce Act settlements since January 2010) or Informed Consumers Enforcement Actions Register9 (for settlements under the Fair Trading Act or 6 Commerce Commission Enforcement Response Guidelines, November 2012, para 36. 7 Available online at www.comcom.govt.nz/commerce-actenforcement-actions-register/. 8 Commerce Commission Enforcement Response Guidelines, para 70. 9 Available online at www.comcom.govt.nz/informed-consumersenforcement-actions-register-2/.

LAWTALK 810 / 7 DECEMBER 2012

PROFESSIONAL DEVELOPMENT

Adding $19m of Legal Value to New Zealand

Good faith in employment law By Elliot Sim The 2012 Employment Law Conference explored some notable changes to employment law with the most important element being that of good faith. The NZLS CLE Ltd biennial conference attracted 380 participants to the Langham Hotel in Auckland, where they were brought up to speed with current employment law developments. Peter Chemis, event chair and head of the Buddle Findlay employment law team, says the conference consistently delivers intellectual debate, thoughtful and practical advice, as well as the opportunity to interact socially with friends and colleagues. “This conference was no exception,” he says. Both the papers and the presentations, according to Mr Chemis, were of a high quality with the conference also benefitting from the attendance and presentations delivered by four of the five Employment Court judges. “The event was mainly to update those in employment law on recent developments. What we asked of the speakers was that they be as topical as they could be and give up as much of their intellectual Credit Contracts and Consumer Finance Act since July 2009). An admission of liability will make it harder for a firm to then defend a subsequent claim by a third party customer or competitor who alleges that they have suffered loss due to the breach of the legislation by the firm. Sometimes it will be too late for a customer or competitor to bring a followon claim for loss. Under the Commerce Act, for example, a claim for damages must be brought within three years from when the claimant knew or should have known of the alleged contravention of the Act. There is also a “long stop” limitation period which prevents a Commerce Act damages claim being brought more than 10 years after the conduct in question. However, a decision of the High Court on 13 November 2012 suggests that the court will not be prepared to strike out a claim by an affected party unless this

LAWTALK 810 / 7 DECEMBER 2012

SUPPORTING INDEPENDENT LEGAL THINKING

property as they could.” Mr Chemis says the theme of the conference was good faith. “In our area that is still a sleeping giant and it gave employees a lot of ability to test their employer’s behaviour and likewise it gave employers the opportunity to take their employees to task on their behaviour. “People often think that employment law is a one-way street. Poor old employers have got so much to do, but good faith goes two ways. That was a message – employers can take their employees to task if they behave inappropriately,” Mr Chemis says. Associate Professor of law at Auckland University Bill Hodge has attended the event since it began in 1996, but said the latest offering was the best. He has been involved in employment law since graduating from law school in the 1970s. “It keeps us all up-to-date and gives us a chance to exchange ideas with the best and brightest. The only frustrating thing was there were break-out sessions and I wanted to go to all three, but I had to choose one.” is very clearly subject to a limitation defence.10 The case concerned a damages case by a customer of a party to an alleged cartel, brought following publicity concerning a settlement between the alleged cartel participant and the Commerce Commission. There was a dispute as to whether the claim was statute barred on the grounds that it had been brought more than three years after the contravention was reasonably discoverable. The claimant argued that the contravention was not reasonably discoverable until the time when the settlement between the defendant and the Commerce Commission was reported. Associate Judge Abbott refused to strike out the claim against the alleged cartel participant saying that the question of whether the contravention was reasonably discoverable was a factual question that would have to be 10 New Zealand Bloom Limited v Cargolux Airlines International SA [2012] NZHC 3012.

Dr Hodge says the paper delivered by keynote speaker Judge Barrie Travis on taking good faith more seriously, was most memorable.

As the Law Foundation’s 20th year of dispensing grants draws to a close, it’s a good time to reflect on the work we supported during 2012.

Andrew Ashworth of Oxford University, Professor Robert George of Princeton University, and International Criminal Court Judge Sir Adrian Fulford.

“He explored good faith in its many dimensions as it is a two-way street. It’s a gold mine in terms of future legal options.”

The Foundation has distributed more than $19 million in grants since 1992, supporting a wide and diverse range of projects that New Zealand society benefits from in some way.

Last month, our inaugural Annual International Dispute Resolution Lecture was given by Freshfields international arbitration expert Lucy Reed.

Our flagship multi-year research projects seek to advance understanding in complex and important topics of ongoing significance. After two years, the Regulatory Reform Project is now nearing completion. We look forward to publication of the latest collection of papers by the VUW project team, to be followed by analysis and debate at a conference in February 2013.

Next March, recently retired President of the UK Supreme Court Lord Phillips will visit as the 13th NZLF Distinguished Visiting Fellow.

Judge Christina Inglis and Andrew Caisley brought participants up to speed with a new section regarding dismissals. “With the new formula there are a range of options that a fair and reasonable employer could pursue. There’s more than one right answer, which has always been my view. There are options and the authority must recognise that. “Now hopefully the employer will have more leeway. As long as they go through a fair process and there is serious misconduct, then the dismissal should be justifiable. “Geoff Davenport and Shan Wilson were also very good. They gave a paper that I loved because it’s what I do; I assist employers with the disciplinary process. It was grunty, meaty. They had citations and practical suggestions – everything you needed to know,” Dr Hodge says. LT determined at trial. The High Court’s decision is an important reminder for advisers that doing a deal with the commission may expose a party to claims by third parties even if the original conduct said to be unlawful took place many years ago. In conclusion, the commission’s Enforcement Response Guidelines are useful guidance for advisers as to the factors that the commission will take into account in deciding whether to issue court proceedings or take some lower level response. It is critical, however, for advisers to consider the possible risks of third party claims against clients that may arise from lower level responses by the commission such as a warning letter or an out-of-court settlement. *John Land is a senior competition law specialist and commercial litigation barrister at Bankside Chambers in Auckland. He was formerly a partner of Kensington Swan for 20 years. He can be contacted on 09 379 1513 or at john.land@ bankside.co.nz.

We also support research that leads to improvements in the delivery of justice. This year the focus was on three youth justice-related projects: on Parenting Orders in the Family Court, Family Group conferences, and statefunded youth advocates. All respond to critical information gaps. Two Victoria University-based studies have already had an impact. The study From ‘Real Rape’ to Real Justice: Prosecuting Rape in New Zealand, has led to improvements in Police process. What’s the Hurry? Urgency in the New Zealand Legislative Process compared the use of urgency before and after the first MMP election and has also led to practical change. Other studies were started this year on expert witnesses, the needs of people with intellectual disabilities in our legal system, examining coroners’ recommendations, evaluation of problem-solving courts, and examining the role of mental health district inspectors. These projects will continue in 2013. We support activities that broaden and deepen knowledge of the law by bringing international legal experts to New Zealand to attend conferences and deliver lectures, enriching our understanding on contemporary issues. Visitors this year included Professor

We also help New Zealand scholars to travel internationally to further their studies and bring the benefits back home, in particular through our prestigious International Research Fellowship and our Ethel Benjamin Scholarship for outstanding women lawyers. Foundation support has been critical to many legal professional training and development programmes. Our ongoing support of NZLS CLE’s education programme was extended to include the Law Society’s national training programme to prepare lawyers for practice on their own account (Stepping Up). We also funded an online post-admission training course in law and economics developed by LEANZ. Support of legal publications is an important part of our work, particularly those of value to the profession such as the New Zealand Law Style Guide and the New Zealand Judicial Review Handbook. Law students also benefit by our support of mooting. This year we funded the Auckland University mooting team’s successful trip to the prestigious Jessup Moot, where they gained a semi-final place. We also support initiatives that improve legal understanding and access to justice for the public and community groups. Since its early beginnings, we have funded NZLII, a comprehensive, free, online database that’s proving increasingly popular with the profession and the wider public. This year we also supported the Law in

Lynda Hagen

Schools project, produced a legal rights DVD for deaf and hearing-impaired people, and a 13-part television series, Know Your Rights, helping migrant groups understand legal concepts and processes. Over the years we have funded considerable research into Māori and Treaty of Waitangi-related issues. That continued this year with a recently-published series of essays on the Treaty settlement process, compiled by Nicola Wheen of Otago University. Recently we approved funding for initial scoping work for a Māori Law Resource Hub to assist legal research, as well as an Otago University project to produce an ambitious new law book to synthesise Māori issues law into a single text. New Zealand has been an active supporter of human rights legal development internationally, and the Foundation has backed work in this area. We currently support a Human Rights Commission study evaluating the impact of international treaty obligations on New Zealand law and practice. Also this year we launched a new human rights award – the NZLF Shadow Report Award – supporting people or organisations preparing shadow reports for presentation at United Nations monitoring bodies. Our inaugural award (worth $10,000) was won by the Human Rights Foundation of Aotearoa New Zealand. In considering the diversity of work we support, I want to mention environmental projects. This year we continued support for three major projects on our continental shelf, oceans governance and marine mammals. The latter project has resulted in a recent publication by the Environmental Defence Society, Wonders of the Sea: The Protection of New Zealand’s Marine Mammals. I wish you all a relaxing Christmas and New Year break and look forward to keeping you up to date with the Foundation’s work in 2013.

LAWTALK 810 / 7 DECEMBER 2012

THE BOOKSHELF BOOK OF THE MONTH

CROSS ON EVIDENCE, 9TH EDITION Edited by Don Mathieson QC This is the ninth New Zealand edition of an English work first published in 1958 by Sir Rupert Cross. The first New Zealand edition was published in 1963. The book provides the text of the Evidence Act 2006, consolidated to include amendments to 30 August 2012. Commentary is provided on a section-by-section basis. The Act is followed by commentary on evidence law outside the Evidence Act, with regulations and practice notes also included. (LexisNexis NZ Ltd, November 2012, 978-0927183-89-2, 726 pages, paperback, $74.75 (GST incl, p&h excl)).

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The LexisNexis Key Cases series will give practitioners concise introductions to the case law in areas with which they are less familiar by detailing the facts, issues, and decision in each case. More experienced readers will benefit from a reminder of the key aspects of important cases, as well as a guide to the most significant recent case law.

Emma Marr is a senior tax advisor with over 12 years experience with firms including Minter Ellison Rudd Watts, Buddle Findlay, and PricewaterhouseCoopers. She has co-written articles for a number of publications.

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the cases in their legislative context. Complex cases are illustrated with clear diagrams, and the text is written in a style accessible to non-expert readers, without sacrificing the preciseness and clarity of the legal principles.

LEXISNEXIS KEY CASES: TAX

Tax • Craig Elliffe • Emma Marr

ma Marr

THE BOOKSHELF

By Craig Elliffe and Emma Marr “Busy lawyers” are KC Tax included in the target readership. Containing summaries of 127 important New Zealand tax cases and international decisions, the book is organised into sections which give a brief overview of the issues and relevant legislative context. Summaries vary in length, with the average appearing to be around 350 words. Key facts are summarised in one or two paragraphs, followed by an outline of the matters considered in the judgment and the key findings. (LexisNexis NZ Ltd, November 2012, 978-1-927183-54-0, 148 pages, paperback, $49.45 (GST incl, p&h excl)). Craig Elliffe Emma Marr

LexisNexis Key Cases

Is there a book you would like to see reviewed? Write to: geoff.adlam@lawsociety.org.nz

LAWTALK 810 / 7 DECEMBER 2012

CORPORATE GOVERNANCE – A PRACTICAL HANDBOOK Edited by Karen Martyn Reviewed by Christine Grice* This is a compact book which delivers what it promises. It is a practical guide for directors which keeps theory to a minimum. It is a hands-on “how to” guide, complete with forms and checklists which are also available on a CD Rom accompanying the book. This is a review of the hardcopy of the book, although it is also available as an eBook. The outline of the legal principles relating to governance is summarised. It includes directors’ obligations and corporate responsibility. The book highlights other areas of the law that a director is likely to encounter: insurance and indemnity; employment law; tax procedures; Company’s Office requirements; and the law relating to societies and charities. These are set out in simple and easy-to-follow language and purport to be no more than an overview. The legal guidance is unlikely to add anything to the knowledge of most competent lawyers engaged in advising companies and directors. But it is a useful summary for the ordinary director, particularly the first-time director. It provides a good solid introduction to the basic law and is likely to be all that most directors need and certainly more than most novice directors have. The strength of this book lies in its conciseness and practical bent. It covers most run-of-the-mill issues that boards are likely to face, such as dealing with the Chief Executive, insurance, indemnity, meeting processes and procedures. It also has a chapter on “Understanding Financial Statements” and one on “Corporate Social Responsibility”. The chapter on the chief executive covers the recruitment, interviewing,

engagement and induction of a chief executive as well as the basics of performance management and handling the CEO’s departure. None of these topics are dealt with indepth but it provides a guide on what should be considered and importantly, the pitfalls involved. The chapter on “Business Strategy” is a useful summary of the principles and approaches to strategy. It includes lists such as the “Marketing Issues Prompts List”. It has a few footnotes providing readings for those interested in going further. The chapter on not-for-profit organisations is written by Mark von Dadelszen. He is a Hawke’s Bay lawyer who has written extensively on this topic and is regarded as an expert in the area. I found this chapter a simple and useful overview of an area which is becoming very complicated. This book is not a legal text nor does it purport to be. There are few case references and no index of statute or case law. Nevertheless the legal principles are clearly set out with examples given in boxes throughout the text. Some are taken from case law (such as the Feltex case – Ministry of Economic Development v Feeney (2010) NZCLC 264, 715 (DC)), and others are useful made-up examples to illustrate a point. The layout of the book makes it easy to read. Boxed test is used for important pieces of information and marked with a big “i”. The checklists and precedents are particularly useful. While many of these are available already, they are scattered in various textbooks and other sources or in expensive sets of precedents. Having some basics all together in one little book is useful. The electronic forms and checklists contained in the CD Rom are able to be customised as necessary. They are produced using Microsoft Office Word 2010 and saved as RTF files. I did not find any problem opening these and altering them. But the package comes with a warning that other Word versions and certain printers may produce forms that require reformatting.

The editor’s objective and brief to contributing authors was to produce a book that is “practical with minimal theory and maximal applicable advice in the form of checklists, templates and other ‘how to’ instructions….”. This is achieved. I see a place for this little book on the shelf of lawyers who are advising small and medium sized companies, particularly for the practical guidance that it includes. The primary target market is that of company directors and administrators of companies and in my view this book will serve that market well. CORPORATE GOVERNANCE – A PRACTICAL HANDBOOK, Edited by Karen Martyn, CCH NZ Ltd, July 2012, 978-0-864758-74-3, 316 pages, paperback (with CD) and e-book, $120 (GST and p&h excl). *Christine Grice is Executive Director of the New Zealand Law Society.

CAMPBELL ON CAVEATS By Neil Campbell Reviewed by John Greenwood* Neil Campbell’s hardcopy version, adopted from Chapter 10 of the looseleaf and online service of Hinde McMorland & Sim Land Law New Zealand, is a quick tool for property lawyers and those involved with litigation concerning caveats. The idea of extracting a hardcopy version from a learned text is very useful in the context where often great urgency is required in protecting a caveator’s interest or ascertaining the merits of whether a court challenge is required. Speed is often the enemy in the legal industry and in the environment of caveats it is in most cases unavoidable. Neil Campbell has updated the text in his hardcopy version to state the law as at 3 July 2012. Features of the text include: • A long and growing list of cases, statutes referred to and a comprehensive index. • The book is in seven chapters. It starts by identifying the six different classes of caveats and the general principles of what constitutes caveatable interests, then looks at one’s duties on lodging a caveat and getting the particulars right. From there, the book moves on to how

one goes about removing caveats – with commentary on some of the controls around lodging caveats. The principle of allowing no second caveat unless by Order of the High Court is discussed and there is consideration of liability for lodging without reasonable cause. The final chapter deals with other classes of caveats such as Registrars’ caveats and the obscure, but nevertheless interesting, legal position in lodging caveats against applications for prescriptive titles and applications for titles to access strips. Some of the important observations made within the content of the book include: • Reference to the 1987 Whiteleigh Holdings case. This provided a clear recognition that the class of caveat interests is not confined to those equitable interests that are only capable of being registered. The case opened the door for adoption of a broad view, which has since been accepted in the provisional opinion in the Court of Appeal decision of Waitikiri Links Ltd v Windsor Golf Club Inc (1998) NZCPR 527, and then adopted in Regal Castings where Justice Tipping, [at 151], opined: “an interest can be the subject of a caveat even if it is not registrable” (Regal Castings Limited v Lightbody [2008] NZSC 87). As Neil Campbell observes, this approach is in accordance with the practicalities of modern conveyancing. • Neil Campbell addresses the important question around no caveat clauses and the situations in which a caveat could be sustained despite the existence of a no caveat clause. • The idea of conditional agreements for sale and purchase sustaining a caveat is also addressed following the Court of Appeal decision in Bevin v Smith [1994] 3 NZLR 648. This held that some equitable interests in land can arise from conditional contracts.

to purchase and will support a caveat – see Justice Tipping’s fourstage test in Motorworks Limited v Westminster Auto Services Limited [1997] 1 NZLR 762. • In the chapter on removing caveats, Neil Campbell addresses the relevant principles such as the caveator showing a reasonably arguable case to sustain the caveat. He comments on the all-important balance of convenience approach adopted by the courts and provides numerous case authority. This is helpful to those having to address the wisdom of defending the lodgement of a caveat, as much as those addressing attempts to have a caveat removed. • The important issue of whether a registered proprietor can caveat their own title is canvassed. The law in New Zealand is at odds with the Australian view and our own Law Commission. A registered proprietor should have the ability to caveat their own title – for example in a situation where fraud is suspected or where an additional interest exists. The writing style in the text is easy to follow and the explanation of concepts is done with clarity. There is a surprising amount of material compacted into an easy practical read which gets to the point quickly and therefore is a must purchase for those practising in the area. Equally, those learning the trade will not be disappointed. The handbook will appeal to a wider audience and is a welcome addition to other LexisNexis publications such as McMorland on Easements, Covenants and Licences. CAMPBELL ON CAVEATS by Neil Campbell, LexisNexis NZ Ltd,

• Neil Campbell addresses the ability to lodge a caveat where there exists a mere right of first refusal as distinct from an option to purchase. He also considers whether offerback rights under s40 of the Public Works Act 1981 are capable of sustaining a caveat. The latest position on this issue is that once land has become surplus, the offerback right is akin to an option

LAWTALK 810 / 7 DECEMBER 2012

THE BOOKSHELF September 2012, 978-1-927183-427, 131 pages, paperback and e-book, $92.00 (GST incl, p&h excl). *John Greenwood is a partner in Wellington law firm Greenwood Roche Chisnall.

COURTROOM PROCEDURE IN NEW ZEALAND: A PRACTITIONER’S SURVIVAL KIT, 4th Edition By James O’Donovan Reviewed by Jamie Grant* Courtroom Procedure is targeted at practitioners with little or no courtroom experience and it succeeds admirably at providing practical guidance as well as a comprehensive description of the minutiae of formalities encountered in New Zealand’s courts. Now on to its fourth edition, it is clear from the outset that the author has a huge amount to offer on the topic. As a retired District Court Judge, the author brings a wealth of experience and the book carries the tone of an experienced practitioner holding forth to his junior colleagues, an impression which is helped by the author’s war stories studded throughout. While making for a thoroughly enjoyable read, these analogies also provide helpful insight on significant issues. The primary focus of the book is procedure in criminal matters, with analogy to, and an elaboration of various aspects of civil procedure, finishing with a summary of Family Court practice. While the author is at pains to emphasise that procedure differs greatly from one jurisdiction to another, and even hugely from court to court within a jurisdiction, much of the book is spent on criminal law, as this is where the author anticipates most young advocates will gain their initial courtroom experience. Accordingly, the book provides an excellent description of the matters that a practitioner is likely to experience in the District Court on a criminal matter for the first good few years of their career. However, while it may have at one time been correct to say that most junior practitioners would get their first courtroom experience on criminal matters, the primary practice areas of junior litigators have changed over time, with a huge proportion now

LAWTALK 810 / 7 DECEMBER 2012

practising in commercial civil litigation. The latest edition of the book could have benefited from a summary of proceedings on the High Court swift track as well as what to expect at a first appearance at a Banco list. A good portion of the book is also spent on more complex trials and procedure that a junior practitioner isn’t today likely to encounter in an unsupervised capacity. To the extent that the book is intended to be a general resource of recourse for the practitioner with little to no experience, the latest edition may also have benefited from the addition of summaries on what to expect (or even how to deal with the uncertainty of there being no set procedure) in the many assorted tribunals in which many junior practitioners now receive their first advocacy experience (although admittedly, what exactly this entails at times may be difficult to set down to paper). Nonetheless, what it does, it does well, and for the junior practitioners who finds themselves undertaking a criminal trial (or more minor criminal matters) without supervision or assistance, this book will be a godsend. The book is also likely to be of ongoing assistance for junior practitioners as they encounter new courts and would be a useful reference guide to keep on the back shelf to acquaint oneself with prior to walking into a new courtroom. Highly recommended for small to medium sized firms where junior practitioners may have to walk alone on a variety of matters. COURTROOM PROCEDURE IN NEW ZEALAND: A PRACTITIONER’S SURVIVAL KIT, 4TH EDITION by James O’Donovan, CCH New Zealand Ltd, September 2012, 978-0-86475986-3, 127 pages, paperback, $80.50 (GST incl, p&h excl). *Jamie Grant is a litigator with Wellington law firm JTLAW. He was admitted in August 2010.

The End of Year legal publishing frenzy New Zealand’s three legal publishing companies are all part of multinationals which have calendar year balance dates. The need to meet business plan revenue targets, coupled with an academic year which starts in February or March, means the summer months see a veritable flood of new legal books. LawTalk’s policy is only to list full

details of those books which we receive copies of (thereby confirming they have really been published). In the interests of keeping lawyers informed, the publishers say the following books will be published over December/ January. For further details consult the publisher’s website: CCH New Zealand Ltd: New Zealand Contract and Commercial Legislation 2013 ISBN 978-0-86475939-9; New Zealand Depreciation Rates 2013 ISBN 978-0-864759-825; New Zealand Employment Law Guide 2013 ISBN 978-0-864759-44-3; New Zealand Goods and Services Tax Legislation 2013 ISBN 978-0-86475968-9; New Zealand Master Tax Guide 2013 ISBN 978-0-864759-69-6. LexisNexis New Zealand Ltd: Accident Compensation Law (by Doug Tennent) ISBN 978-1-927183-30-4; Family Law Legislation, 15th Edition ISBN 978-1-927149-58-4; Family Law Policy in New Zealand, 4th Edition (Edited by Mark Henaghan and Bill Atkin) ISBN 978-1-927149-55-3; Manual to Drunk/Drugged Driving Offences (by Geoff Hall and Andrew Becroft) ISBN 978-1-927183-39-7; Nevill’s Law of Trusts, Wills and Administration, 11th Edition (by Nicky Richardson) ISBN 978-1-927183-77-9; Nevill’s Trust Drafting Handbook (by Nicky Richardson, Sarah Parsons and Bruce Douglas) ISBN 978-1-927149-485; Personal and Corporate Insolvency Legislation, 2nd Edition (by David Brown and Tom Telfer) ISBN 9781-927149-44-7; PPSA: A Conceptual Approach, 3rd Edition (by Linda Widdup) ISBN 978-1-927183-28-1. Thomson Reuters: Advocacy (by Anthony Willy and James Rapley) ISBN 978-0-864727-78-7; Brookers District Courts Rules 2009 Handbook (2nd Edition) ISBN 978-0-864727-71-8; Holidays Act 2003: Act and Analysis ISBN 978-0-864727-81-7; Principles of Criminal Law, 4th Edition (by Andrew Simester and Warren Brookbanks) ISBN 978-0-864727-72-5; Protection of Personal and Property Rights Act 1988: Act and Analysis (by Sylvia Bell) ISBN 978-0-864727-72-5; Search and Surveillance: Act and Analysis (by Warren Young, Neville Trendle, Richard Mahoney) ISBN 978-0864727-77-0; The Native Land Court 1862-1887: A Historical Study, Cases & Commentary (by Richard Boast) ISBN 978-0-864727-65-7; Youth Justice in New Zealand (by Nessa Lynch) ISBN 978-0-864727-64-8. LT

BRANCH NEWS Branch highlights of 2012 New Zealand Law Society branches work hard to promote collegiality and professional development for their members. This year numerous events were hosted around the country. LawTalk revisits some of the highlights.

Marlborough branch The bar dinner held at Wither Hills Winery was the highlight of the year for the Marlborough branch. It was well attended and enjoyed by all. The branch was also privileged to have an admission ceremony at the Blenheim High Court for PetaClaire Brunel, one of the many young lawyers who moved to the district this year.

dinner, held at the Poverty Bay Club, and the Christmas party, held at the Flying Dutchman, were both collegial events for the Gisborne branch.

Wellington branch The Wellington branch was flat tack with its vibrant and engaged membership. The branch now counts 15 special interest committees. It held 36 events and functions, including five bar dinners and a number of sports fixtures. The China Law Society and the Welsh Counsel General were among international guests to the branch.

Canterbury-Westland branch The Canterbury-Westland branch learnt the hard way the importance of professional networks in the aftermath of the earthquake devastation. Despite the disruption, the branch continued to host a variety of events throughout the year. In fact the 2012 Law Dinner drew a record 200 people to the Westpac Hub in Christchurch. This year’s Great Debate also sold out. The region’s practitioners were eager to hear if experience trumped enthusiasm, or if young lawyers did it better. There was no resolution with the debate declared a stalemate.

At one of the Wellington branch’s five successful bar dinners, this one to honour the appointment of Justice David Collins QC to the High Court bench, (from left) Courts Minister Chester Borrows, Justice Collins and Wellington branch President Mark Wilton.

Auckland branch The inaugural Auckland Branch Lawyer Awards sponsored by Bell Gully, Russell McVeagh, Kensington Swan and Minter Ellison Rudd Watts, were held at the Northern Club in May.

With the award the Canterbury-Westland branch received for its assistance in the response after the earthquake and its role in keeping the city functioning (from left) Theresa Graham, Prue Robertson, Rachel Dunningham, Allister Davis, Gerry Brownlee, Malcolm Ellis, and Julia de Friez.

Southland branch The Southland branch hosted the annual combined SouthlandOtago Conference at the Invercargill Courthouse this year. A good turnout of participants, with approximately 103 registered, enjoyed a great day of learning and sharing among follow practitioners. The conference was followed by an equally successful Southland Bar Dinner, attended by 131 people.

Gisborne branch The Gisborne branch held a highly successful and well attended bar dinner and Christmas party this year. The bar

Russell McVeagh partner Fred Ward, just after he presented Ian Haynes (right) with the Russell McVeagh Lifetime Achievement Award at the inaugural New Zealand Law Society Auckland Branch Law Awards in May.

The awards were very well received and the awards evening was a very special event. The winners’ speeches highlighted passion and commitment to the profession and the wider community across the sectors.

The awards were such a success that various organisations have already requested information on how to become a 2013 award sponsor. Another initiative in 2012 was a screening for the NZLS Auckland branch film club. The night was a great opportunity for networking and relaxing with colleagues, reflected in the event selling out. The Auckland branch was also delighted to see branch

LAWTALK 810 / 7 DECEMBER 2012

BR ANCH NEWS President Chris Moore become Law Society national President-Elect, and branch Council members Mike Heron appointed Solicitor-General and Clayton Kimpton appointed New Zealand Trade and Enterprise regional director.

Otago branch

The popular ASB Young Lawyers Networking Seminar series for Young Lawyers was launched in Auckland this year and made its way around the country with events in Christchurch, Hamilton and Wellington.

A small gathering of past presidents and current council members attended the Past Presidents’ Annual Dinner on Friday 2 September at Plato, which was a very enjoyable evening.

Hawkes Bay branch The Hawke’s Bay branch hosted a sold out bar dinner at the Hawke’s Bay Club in May 2012, immediately following the memorial sitting for the late Sir Rodney Gallen in the High Court at Napier. Seventy eight members of the New Zealand Law Society’s Hawke’s Bay branch and visiting members of the bar and judiciary gathered at the Hawke’s Bay Club for cocktails and canapés in the foyer before the dinner. Attendees at the dinner included the Chief Justice, Dame Sian Elias, Attorney-General Chris Finlayson, Justice Graham Lang, Justice Lester Chisholm, Justice Lowell Goddard and Justice Warwick Gendall. A very special guest was Sir Owen Woodhouse, who graced the dinner with his charming wit and wisdom. The branch also held a number of practical seminars. These included court etiquette; three sole-practitioner and small business sessions; litigation life skills; and iPad advocacy. The Council greatly appreciates efforts of members and other professional people who present these workshops and seminars on a voluntary basis.

Nelson branch The Nelson branch held its first proper (practitioners only) bar dinner for about 20 years at the end of June. The event proved extremely popular and a waiting list had to be operated. The guest speaker, Judge David McKegg, provided a humorous talk about his journey from beginning as a young solicitor. It was a very enjoyable evening and the branch Council has determined to hold another such event in two years’ time. A further highlight for the region’s practitioners was a lunch for women practitioners held on Suffrage Day on 19 September. Guest speaker Jenny Leith gave an interesting and challenging address, which left many of those attending wondering how she had packed so many experiences into one, still very active, life.

Dr John Turner

wishes to announce that he has commenced practice as a barrister in Auckland Email: jwturner@xtra.co.nz Tel: 09 358 4062 Fax: 09 358 4063 Mobile: 021 662 297 Level 10, Forsyth Barr Tower, 55 Shortland Street, Auckland 1010 P O Box 2338, Shortland Street, Auckland 1140 He is also the holder of a current practising certificate in the High Court of Fiji and the Dubai International Financial Centre Courts and can arrange to accept instructions in those jurisdictions.

LAWTALK 810 / 7 DECEMBER 2012

The first of the Otago branch highlights was a Town and Gown bar dinner in honour of Justice Sir Bruce Robertson in March.

The Meet the Council Lunch in Queenstown in November was also highly successful.

Whanganui branch The highlight of the Whanganui branch calendar was the highly successful bar dinner to mark the retirement of John Rowan QC, with 56 attendees at the Kings Gate hotel on 16 November.

Waikato Bay of Plenty branch The Waikato Bay of Plenty branch highlights include the August Tauranga bar dinner. The lunch time seminars hosted by the branch this year have been successful and are gaining in popularity. The Waikato-Bay of Plenty Young Lawyers Group was resurrected this year and has held very successful events for the region’s young lawyers. LT

LE T TERS TO THE EDITOR

Family Court petition Family lawyers in Dunedin, the Bay of Plenty, Porirua and Whangarei have organised an online petition on proposed changes to the Family Court. This petition asks the House of Representatives to: 1) Not implement changes to the Family Court system that will place restrictions on the right for people to have a Lawyer represent them in proceedings involving the care of children or any proceedings in the Family Court; 2) Not implement changes to the Family Court system that will restrict the ability of a Judge to appoint Lawyer for Child in proceedings, even proceedings that are not regarded as serious cases; 3) Not reduce the availability of Legal Aid in proceedings in the Family Court including those cases involving the care of children; and 4) Not to impose a fee for parties to enter the Family Dispute Resolution process to ensure that the process is not inaccessible and will not prevent matters resolving in a timely and child focused way. To date over 560 people have signed the three online petitions we have on avaaz.org, activism.co.nz and change.org. Hard copies of the petition have been circulated to practitioners throughout the country, community law centres, women’s groups, university students, maraes, trusts, parenting groups, etc. The aim is to get as many people to sign the petition as possible. The petition (online and hardcopies) will be presented to the House of Representatives in late February or early March 2013. Hard copies of the petition can be downloaded at www. childrenneedavoice.com. Christopher Perry Whangarei

Pre-1990 forest land deforestation liability By Stuart Orme * The Climate Change Response Act 2002 (CCRA) provides for full or partial exemptions when land is deforested. Clients need quality advice from a person with some expertise on the CCRA and its regulations, someone who is able to present solutions that best meet their client’s needs. For lawyers, that may mean getting a really good handle on the CCRA and its regulations, possibly even talking to other experts in the field. The methodology for calculating emissions from the deforestation of pre-1990 forest land is dictated by the CCRA and its regulations (Regulation 15 of the Climate Change (Forestry Sector) Regulations 2008). This stipulates that it must be calculated in accordance with the formula listed in that regulation which utilises the Schedule 4 look-up tables. This is a blunt instrument at best that can, and has, lead to inflated repayment claims from the Crown to affected landowners. Currently there is no scope within the legislation for an alternative method to calculate emissions from deforestation other than using the look-up tables, and no discretionary ability for the Crown to reduce assessed emissions to reflect individual situations. The way the Act affects landowners with trees in this situation was highlighted to the Select Committee for the CCRA review. However it chose to leave the Act as is in this regard (even though other industries are dealt with differently) noting: “We considered recommending a change to the method by which deforestation liabilities are calculated for pre-1990 forests. At present, the regulations require owners of pre1990 forests to use default look-up tables when calculating emissions from deforestation. Occasionally, however, this approach can lead to a manifestly unfair outcome if a plantation’s actual emissions are significantly less than the default tables indicate because of damage from factors such as wind, fire, insects or disease. We considered providing for regulations to be made giving the Environmental Protection Authority discretion to use alternative methods for calculating deforestation emissions. We concluded, however,

that s60 of the Act already provides an avenue for redress in such a situation, as it allows the Minister to recommend exemptions for particular cases. A participant who considers their actual emissions to be significantly less than those in the default look-up tables can request they be exempted from a portion of their emissions.” The specific wording of s60 of the Act is:

Exemptions in respect of activities listed in Schedule 3 1. The Governor-General may, by Order in Council made on the recommendation of the Minister, exempt any person or class of persons carrying out an activity listed in Schedule 3* from being a participant under this Act in respect of: a) the activity; or b) part of the activity; or c) a proportion of the emissions from the activity; or d) a combination of the matters specified in paragraphs (a) to (c). * Schedule 3 in relation to forestry reads “Deforesting pre-1990 forest land other than exempt land, if the area deforested is more than two hectares in the fiveyear period commencing on 1 January 2008, or in any subsequent five-year period after that.”

Case study A landowner purchased property (part of which is designated pre-1990 forest land by the CCRA 2002) in December 2005. At the time of purchase the property was subject to a forestry right in favour of a third party. The landowner purchased the property with the intention of converting it to pasture after the forestry right expired and on the understanding that they were not affected by the CCRA carbon repayment requirements associated with tree removal. The trees on the property were harvested between December 2008 and April 2009 and the landowner converted the property to pasture. In March 2012 the landowner received notice from the Crown for a significant deforestation liability. Advice revealed that as “landowner” they were required to surrender the credits

requested. They requested a review of the Crown’s decision pursuant to s144 of the CCRA. The grounds for review were: a) the actual deforested area was less than what had been assessed; and b) that the methodology for calculating emissions from the deforestation grossly overstated the actual emissions from the property (based on the failed state of the forest plantation at the time of harvest and records of the actual volume of logs removed from the property). In response to the request for a review, the Crown issued a revised assessment of deforestation liability based on a reduced deforested area. However, the Crown also advised that they did not have the discretion to depart from the methodology for calculating deforestation emissions as prescribed in the regulations. The Crown’s application of the default look-up tables resulted in a significant overstatement of the actual emissions arising from deforestation of the property. Because of the discrepancy between actual carbon released and the liability being sought by the Crown, the landowner has applied for what is believed to be the first s60 exemption under the CCRA. At the time of writing, the exemption is under consideration. However knowledge of its availability may well help others affected in a similar fashion.

Take home points 1. Legislation interpretation and application becomes easier with precedent. 2. Sound due diligence/advice could have helped to avoid the above situation. 3. There is always a solution (in part or full) if you know how to identify it. *Stuart Orme is a Registered Forestry Consultant and ETS adviser at Woodnet, a Wairarapa-based independent forest advisory and management company providing a wide range of services to land and forest owners and the professionals who support them throughout New Zealand. See www.woodnet.co.nz.

LAWTALK 810 / 7 DECEMBER 2012

OVERSEAS PROFESSIONAL FORESTRY AND ETS ADVICE An important message for all professionals dedicated to providing the most informed service and advice to their clients … There are many, many issues that arise from the existence of trees on land. Even if trees don’t exist, the question that should be asked is “what is the best land use?” Forestry is a specialist field that requires specialist advice - even more so now with the introduction and subsequent amendments of the Emissions Trading Scheme (ETS) legislation.  What effect do trees have on the value of your client’s land, now and in the future?  Trees – are they an appropriate or inappropriate succession asset?  What needs to happen if your Trust or Company client (that owns land or forest registered in the ETS or PFSI) changes its ownership structure by more than 40%?

 What due diligence should be performed if your client is looking to buy or sell land with any type of forestry on it?

 When is the mandatory emissions return deadline for the first commitment period due by? And what are the consequences if it’s not submitted?

The above examples are just a drop in the bucket. There may be issues surrounding the existence of forestry or woodlots on your client’s land that you would never have thought of!

WOODNET can provide clarity and identify the options available Woodnet is an independent forest advisory and management company, providing services to land and forest owners and their trusted professionals throughout New Zealand.

Our services include advice on and delivery of: Land purchase/transfer - Due diligence Structuring forest/woodlot ownership for succession Best land use options Forest valuations Forestry rights Transfer of land ownership – implications and solutions Deforestation obligations and encumbrances Change of entity ownership structure

Mandatory emissions returns ETS/PFSI registrations and administration Forest planning and feasibility Silviculture – planting, spraying, thinning, pruning Harvesting/Logging Forest measurement services Insurance options for trees and carbon Carbon sale/purchase options

Let Woodnet help you ADD VALUE and MITIGATE RISK for your clients. Call us to discuss ways in which we can help. "Woodnet combine deep knowledge of the intricacies and practicalities of forestry and the ETS with an absolute commitment to getting the best results for their clients."

Stuart Orme (MNZIF - Registered Forest Consultant) Director - Woodnet 28

Greg Fahey, Lawyer Fmr Corporate Counsel, EcoSecurities

LAWTALK 810 / 7 DECEMBER 2012

Using rule of law against terrorism Strong rule of law is the best way to prevent terrorism, according to participants at a conference held in Vienna on 12 and 13 November. The two-day conference was organised by the Organisation for Security and Co-operation in Europe (OSCE) Transnational Threats Department. It brought together more than 180 counter-terrorism practitioners from governments, law enforcement, the judiciary, civil society from OSCE states and partners, as well as international and regional organisations. They examined good practices on upholding the rule of law in preventing and combatting terrorism through adequately criminalising terrorist offences, establishing effective criminal procedures, raising law enforcement capacities and engaging with people. “Having a criminal justice system that embraces effective investigative, prosecutorial, and judicial capacities in line with human rights and fundamental freedoms, is vital to ensure that persons who plan, perpetrate, or support terrorist acts are brought to justice, and that victims of terrorism are provided with the appropriate redress,” said the OSCE Secretary General, Lamberto Zannier.

Justice and sustainability award Brazilian prosecutor Daniel César Azeredo Avelino has been presented with the 2012 International Bar Association’s Human Rights Institute (IBAHRI)/Instituto Innovare Special Category prize for Justice and Sustainability. Mr Avelino won the award for his “Green Municipalities” project. This project, presented at Rio+20 Earth Summit, aims to stop deforestation in the northern Brazilian state of Pará completely by 2020. The objective is to be reached through a series of incentive agreements between the Federal Public Prosecutor’s Office,

state municipalities, banks and rural producers that facilitate access to credit and tax benefits to programmes that reduce deforestation for livestock and stimulate sustainable agriculture practices. Since its inception in 2009, more than 50,000 landholdings and 90 state municipalities have registered with the scheme which has been monitored and enforced by the Federal Public Prosecutor’s Office so effectively that it has resulted in a dramatic 40% reduction of deforestation in the region. “We strongly believe that the legal profession has an obligation to join the fight against environmental damage and climate change and this innovative project is an example to us all,” said IBAHRI co-chair Baroness Helena Kennedy QC. Gabriela Knaul, UN Special Rapporteur on the independence of judges and lawyers, presented Mr Avelino the award on 7 November.

Anti-discrimination welcomed The Law Council of Australia has welcomed the release of the exposure draft of the Human Rights and Anti-Discrimination Bill consolidating Commonwealth legislation regarding age, disability, race, sex and other forms of discrimination into a single act. Law Council of Australia President, Ms Catherine Gale, said some important steps have been made in the draft legislation to simplify matters relating to the grounds of discrimination, the test for establishing discrimination and processes for resolving complaints of discrimination.

Positive discrimination needed Positive discrimination is the only thing likely to significantly accelerate the rate of progress towards a more diverse judiciary, UK Supreme Court judge Lord Sumption says. Lord Sumption, who is also a former member of the Judicial Appointments Commission, argued for positive discrimination when giving the UK Bar Council’s law reform lecture. Positive discrimination to increase the number of women and ethnic minority judges is not “desirable”, but he called for an “honest public debate” on the issue, saying “it should at least be on the menu”. Selection on merit alone, Lord Sumption said, would take a long time, maybe up to 50 years, before the bench reflected the makeup of the society it serves. In April of this year, 23% of the judiciary of England and Wales were women, compared with 51% of the population at large; 4% were from ethnic minorities, compared with 12% of the population at large. In the short term, accelerated progress towards a diverse judiciary is not going to be achieved under a system of appointment on merit alone. “Without some kind of positive discrimination, the judiciary is never going to be significantly more diverse than the pool from which it is drawn, and the pool from which it is drawn is not the population at large, but the legal profession,” he said. LT

“Extending the areas of public life in which discrimination is prohibited and extending the grounds of discrimination to cover relationship status, sexual orientation and gender identity are particularly welcome steps,” said Ms Gale. The draft legislation also addresses Australia’s human rights obligations under a number of international conventions, but stops short of incorporating the full range of these obligations into domestic law.

LAWTALK 810 / 7 DECEMBER 2012 Greg Fahey Associate - Goldsmith Law, Dunedin

UPCOMING PROGRAMMES

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

Programme

Presenters

Content

Where

When

Dunedin Hamilton Auckland Wellington Christchurch

7 Feb 2013 25 Feb 2013 26 Feb 2013 27 Feb 2013 28 Feb 2013 TBC

CIVIL New High Court Chief High Court Case Management Judge Winkelmann Regime Justice Asher Justice Fogarty Justice Miller

This seminar is a must for anyone appearing in High Court civil ﬁxtures. The High Court Amendment Rules are due to commence in February 2013. The amendments will bring fundamental changes to the management of civil cases in the High Court. This seminar is aimed at equipping you with the information you need to know to operate effectively in this new environment. Webinar for smaller centres

Webinar

CRIMINAL Criminal Law Symposium

Chair: The Hon Justice Robert Chambers

The 2013 symposium provides a forum for judges, senior lawyers, Wellington administrators and academics to share ideas, challenge perspectives and seek a better regime for delivering justice in this important area. An update on the Evidence Act/Criminal Law; therapeutic judgments, criminalising civil wrongs and civil action and the popular criminal law practice session make for a stimulating day – a must for all those who practise or are interested in criminal law.

22 Feb 2013

Chair: Margaret Casey

Mediation for Lawyers - Part B Family Law

Virginia Goldblatt Denise Evans

20 Feb 2013 22 Feb 2013

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

1-3 Mar 2013 12-14 Apr 2013

Mr Dorbu sought a judicial review, and in that review, the High Court remitted one of these charges back to the tribunal for rehearing and quashed the penalty decision. On 30 September 2011, the tribunal decided to strike Mr Dorbu off, as penalty for the 10 charges he had already been found guilty of and which the High Court had upheld.

see listing under Family

GENERAL Triple Your Memory Jonathan Robinson and Conﬁdence, and Halve Your Stress

Dealing with Difﬁcult People

Simon D’Arcy

Auckland barrister John Dorbu has been denied leave to appeal a High Court decision upholding his strike off.

As with the very successful 2010 “Big Day Out” intensive, this intensive Auckland will be a programme for senior and experienced practitioners that will be Wellington intellectually challenging and informative. It will focus on how legal advice in the sphere of family law has been affected by the Global Financial Crisis and provide a relevant and stimulating day out of the ofﬁce.

PROPERTY The PRA in the GFC – uncertainty in uncertain times

Barrister who swore false affidavit struck off

This decision came almost two years after the New Zealand Lawyers and Conveyancers Disciplinary Tribunal struck Mr Dorbu from the roll in September 2010 when it found that 11 of 12 charges brought against him were proved.

FAMILY The PRA in the GFC – uncertainty in uncertain times

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Stepping Up foundation for practising on own account

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All lawyers wishing to practise on their own account whether alone, in Auckland 14-16 Mar 2013 partnership, in an incorporated practice or as a barrister, will be required to Christchurch 13-15 Jun 2013 complete this course. (Note: From 1 October 2012 all lawyers applying to be barristers sole are required to complete Stepping Up). Developed with the support of the New Zealand Law Foundation.

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Mr Dorbu again appealed that decision. After the High Court dismissed his appeal, he unsuccessfully sought leave to appeal the High Court decision in the Court of Appeal. The charges against Mr Dorbu fell into three groups: the Barge litigation charges, the G and KA charges and the judiciary charges.

Barge litigation charges The Barge litigation charges concerned a “complex scheme to defeat Mr Barge’s interest as purchaser of a property at Anzac Avenue, Auckland,” Justices Miller, Andrews and Peters said in the High Court (Dorbu v New Zealand Law Society [2012] NZHC 564.) No sooner had the ink dried on the contract in March 2002 than the vendor, Freeport Development Ltd, changed its mind because a Ms Jiao approached it offering a materially higher price. Mr Barge refused an invitation to cancel the contract and lodged a caveat against the title to protect his equitable interest in the property. Freeport was undeterred. Representing

it, Mr Dorbu claimed in a letter of 29 May 2002 to Mr Barge’s solicitors that the shares in Freeport, which were owned by a Mrs Chen and interests associated with her, had been sold to a Mr Huang in 2001. Mr Dorbu appears to have held the view that this alleged transaction ruled out any possibility of completing the agreement for sale and purchase, since the property was Freeport’s only real asset. He coupled that with a claim that the agent who had signed the agreement for sale and purchase to Mr Barge acted without authority. Some weeks after writing this letter, Mr Dorbu drafted a trust deed for the Harsono Family Trust, and at the same time an agreement for the sale of the Freeport shares to that trust was executed. The vendor was described as Freeport itself, but it appears that the shares affected were those still owned by Mrs Chen and her associates. When the trust was formed, the appointed trustees were Mr Huang, Ms Jiao and a Mr Chiao. Ms Jiao and Mr Chiao are brother and sister, and Ms Jiao and Mr Huang are married to one another. In the meantime, Mr Chiao acquired by assignment an existing registered mortgage that Freeport had granted to the Bank of New Zealand. Mr Dorbu conducted the negotiations with the bank, demanding that it assign the mortgage rather than execute a discharge. Mr Chiao issued a default notice under the mortgage before it was transferred from BNZ, before he had advanced any money under it, and while there was no existing default to BNZ. He then agreed before the default notice expired to sell the property to Ms Jiao. The transfer pursuant to the mortgage was eventually made by Mr Chiao as mortgagee to the trustees of the Harsono Family Trust. The purpose of this transaction was that of defeating Mr Barge’s caveat. Mr Dorbu claims to have served the default notice on Mr Barge (as the Property Law Act 1952 required) by courier, and he signed the conveyancing documents correct. Mr Dorbu acted for all of the parties to this scheme. In litigation between Mr Barge and

Mr Dorbu’s clients, Justice Priestley found that the parties for whom Mr Dorbu acted had entered an unlawful means conspiracy. Mr Dorbu did not give evidence. An appeal to the Court of Appeal was dismissed. (See Barge v Freeport Development Ltd [2005] NZHC 148 and Jiao and ors v Barge [2006] NZCA 168). Justice Priestley was concerned about Mr Dorbu’s role in the conspiracy. He directed that his judgment be referred to the Law Society. The Society investigated and eventually laid the present charges. Charge 1 alleged that Mr Dorbu was party to the unlawful means conspiracy. This is the charge the High Court remitted to the tribunal for rehearing. Justice Brewer, in Dorbu v The Lawyers and Conveyancers Disciplinary Tribunal [2011] NZHC 557, accepted that there was ample evidence to support the tribunal’s conclusion that charge 1 was proved, but found that the tribunal erred in law by placing a burden on Mr Dorbu to prove the previous findings of the High Court and the Court of Appeal wrong, and he was not prepared to exercise his discretion to deny relief. Charge 2 alleged that Mr Dorbu, a barrister sole, acted as a solicitor by signing correct the transfer of the BNZ mortgage so that it could be registered. He also had a settlement statement for the sale prepared by a firm of accountants. It stated that he also acted for the mortgagee. He then certified correct a transfer of the property to the ultimate purchaser. The tribunal found that only a solicitor can perform these services. Charge 3 alleged that Mr Dorbu acted for all defendants without their prior informed consent. The tribunal found the conflicts of interest irreconcilable, noting that the purchasers’ title would always be defective because of the way in which it had been acquired. Charge 4 alleged that Mr Dorbu knowingly failed to discover documents in the proceedings brought by Mr Barge. They were the memoranda of transfer,

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. LAWTALK 810 / 7 DECEMBER 2012

L AW YERS COMPL AINTS SERVICE documents relating to Mr Dorbu’s dealings with BNZ about the transfer, and the Harsono Family Trust deed. A non-party discovery order was made against Mr Dorbu. The tribunal rejected Mr Dorbu’s claim that he thought it unnecessary to mention these documents because he had sent his papers to lawyers who were now acting for his clients. He knew the documents existed and were covered by the discovery orders. He failed to honour his obligations to the Court. Charge 5 alleged that on 21 June 2002 Mr Dorbu wrote to Mr Barge, whom he knew to be represented by a firm of solicitors. That firm had refused to correspond with Mr Dorbu until he supplied them with the name of his instructing solicitor. In his letter to Mr Barge, Mr Dorbu explained that he was writing because Mr Barge’s solicitors refused to communicate with him. But he also advised incorrectly that the agreement for sale and purchase was ineffective because the shares in Freeport had been sold to Mr Huang in 2001, and he invited Mr Barge to change lawyers. The tribunal found that he had blatantly breached Rule 6.02 of the Rules of Professional Conduct by communicating with the client of another practitioner. Charge 6 alleged that Mr Dorbu failed to maintain proper standards of professionalism in relation to other lawyers, citing the letter to Mr Barge and a letter to the Auckland District Law Society in which he accused one of Mr Barge’s lawyers of lacking good faith and suggesting that his accusers were stupid. The tribunal described the latter as particularly insulting. Charge 7 alleged that Mr Dorbu misled the court by swearing a false affidavit in Mr Barge’s litigation stating that he caused a copy of the mortgage default notice to be served on Mr Barge as caveator. On this charge, Mr Dorbu gave reference to a courier record which, the tribunal found, related to a different document.

G and KA charges The G charges, numbers 8 and 9, arose out of litigation in which Mr G, a barrister, represented Mr and Mrs R in civil proceedings in the District Court. They sought damages from W Properties Ltd, whose director was Mr S. As the litigation went on, the defendant’s solicitor withdrew and Mr S approached Mr G indicating that he wanted to settle. A meeting was eventually held at Mr G’s chambers between Mr G and Mr S. It resulted in a settlement a term of which was that if payment was not made judgment could be entered for $4,000 more than the settlement sum. Payment was not made, and judgment was obtained on admission. Mr Dorbu then became involved in an attempt to have the judgment set aside. Mr S swore an affidavit imputing improper conduct to Mr G, who stood aside and swore an affidavit making it clear, as the tribunal found, that he had acted properly. But Mr Dorbu persisted, only to be roundly criticised by the District Court. Undeterred, he filed an appeal in which he pursued the same grounds, with equal lack of success. The tribunal dismissed charge 9 but found charge 8 proved. That charge alleged that he had attacked Mr G, a fellow practitioner, without good cause. The KA charge, number 10, concerned an answer to interrogatories Mr Dorbu gave in defamation proceedings that he brought personally against a finance company. Asked whether he had ever been the subject of disciplinary complaints, he answered in the affirmative. He also responded in the affirmative to a follow-up question which asked whether any such complaints had been made by or on behalf of any member of the judiciary, but added that the Auckland District Law Society “reviewed and dismissed the complaint”. The tribunal found charge 10 proved, in two particulars. First, Mr Dorbu had

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L AW YERS COMPL AINTS SERVICE claimed that a complaint by Justice Chambers had been dismissed. It had not. Although it resulted in no disciplinary action, the complaint did lead the Law Society to express the opinion that it had been justified and to seek submissions as to costs which Mr Dorbu might be ordered to pay. Second, there was more than one complaint. Justice Priestley had directed that his judgment in the Barge litigation be referred to the Law Society. This was in substance a complaint, notwithstanding that the Law Society then assumed responsibility for it and did not designate the judge a complainant. Mr Dorbu himself had characterised it as a complaint, and it was sophistry to suggest otherwise. For these reasons, his answer to the interrogatory did not sit comfortably with a lawyer’s duty of honesty to the Court.

Judiciary charges Counts 11 and 12 followed an interim decision in the disciplinary proceedings before the tribunal. Mr Dorbu sought to have Justice Priestley called to give evidence. The tribunal refused. On the same day Mr Dorbu emailed the tribunal’s case manager, accusing the judge of racism and bigotry. He copied this email to the Auckland branch of the New Zealand Law Society, and followed it up a month later by repeating his slurs against the judge and accusing the Law Society itself of racism. Mr Dorbu subsequently withdrew his allegations and apologised to the judge, as the tribunal recognised. The tribunal nonetheless found his conduct serious, holding that it affected professional standards designed to maintain the integrity of the court system.

Timeline In his judgment in Barge v Freeport Development Ltd [2005] NZHC 148, Justice Priestley directed the Court Registrar to refer his judgment to the Auckland District Law Society for appropriate investigation and, if necessary, action by that body’s disciplinary committee [at 130].

NZLCDT 25). Mr Dorbu challenged, by way of judicial review in High Court, the tribunal’s findings that 11 of the 12 charges against him were proved. (Dorbu v The Lawyers and Conveyancers Disciplinary Tribunal [2011] NZHC 557). The court dismissed the application in respect to 10 of the charges. It remitted the other charge back to the tribunal for rehearing and quashed the penalty. On 30 September 2011, the tribunal decided to strike Mr Dorbu off, as penalty for the 10 charges he had

Fined for poor communication and inadequate supervision A lawyer, A, has been censured and fined $2,500 after a Lawyers Standards Committee found that he had provided inadequate supervision of a solicitor, B, in his firm and there was poor communication with a client. The standards committee found that A had breached the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 namely rules 3, 3.2, 3.3 (which relate to lawyers always acting competently, responding to client enquiries in a timely manner and informing clients about delays), 4.4.1, 4.4.2 (which relate to the right of clients changing lawyers to uplift documents, and making documents available when a matter is urgent), and 11.3 (which relates to providing competent supervision and management of employees). The standards committee determined that A’s action constituted unsatisfactory conduct, and censured him. It also ordered A to apologise in writing to the client, pay the Law Society $500 costs and that he either authorise the standards committee to release original files to the client or make a copy of the files available to the client.

On 8 June 2010, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal found Mr Dorbu guilty of professional misconduct on 11 of 12 charges he faced. (Auckland District Law Society v Dorbu [2010] NZLCDT 9).

The complaint arose after the client instructed B to file submissions on his behalf relating to a case before the “ACC Tribunal Unit”. The complainant was dissatisfied with the length of time it took to progress his case (and made a separate complaint against B).

On 10 September 2010, the tribunal decided to strike Mr Dorbu off the roll of barristers and solicitors (Auckland District Law Society v Dorbu [2010]

B completed draft submissions and the client picked up a copy of these. B did further work on the submissions before leaving A’s firm.

already been found guilty of and which the High Court had upheld (New Zealand Law Society v Dorbu [2011] NZLCDT 24). Mr Dorbu appealed the 30 September 2011 penalty decision, saying the tribunal was wrong to impose any penalty on 10 charges before rehearing an eleventh, which Justice Brewer had, on judicial review, remitted to the tribunal for reconsideration. Justices Miller, Andrews and Peter dismissed the appeal in the High Court. (Dorbu v New Zealand Law Society [2012] NZHC 564.)

Mr Dorbu sought leave to appeal the High Court decision to the Court of Appeal on a point of law (Dorbu v New Zealand Law Society [2012] NZHC 1477.) Justices Miller, Andrews and Peters said that the tribunal’s decision to refer the re-hearing on liability to a new tribunal could not be characterised as an admission of bias, and dismissed the application. Subsequently, the New Zealand Law Society successfully sought leave to withdraw the conspiracy charge against Mr Dorbu that the High Court had remitted back to the tribunal. LT

All documents in the proceedings were noted as being filed by A as the client’s solicitor, with B noted as acting solicitor. A was “solicitor on the record” as well as B’s supervising partner.

that he is agreeable to [the client] picking up his files from [A’s firm’s] office on the following Wednesday. When [the client] went to pick up the files, he was not allowed to take them.”

Around three months after B left A’s firm, the ACC Tribunal Unit advised the client that the submissions had not yet been filed.

The standards committee wrote to A’s firm requesting the files so the matter could be investigated, and was still holding the files at the date of its decision.

He then telephoned A, and it was agreed he would come into the firm’s office to uplift his file. However, when he attended the firm’s office, A refused to hand him the files. A’s reasoning was: a) the client owed A’s firm fees for the work completed by B; and b) A was unsure whether the client’s new advocate was, in fact, a lawyer and he was not able to make contact with them. The standards committee noted that after B left A’s firm, nothing appeared to have been done with the file. “It was [A’s] responsibility to ensure that the submissions were filed and [the client] kept up to date with progress,” the committee said. “The submissions were not filed and it does not appear that there was any meaningful communication with [the client]. “[The client] consulted new counsel and requested his file so that matters could be progressed and there would be no further delays. [The client] was not provided with his file. “The committee believes that at the very least [the client] should have been given a copy of his file. “[The client] provided the standards committee with a tape recording of a conversation between himself and [A]. The contents of the transcript were very much in variance with correspondence received from [A]. “In the recorded transcript [A] states

The committee also noted that A was the sole partner of his firm and, as such, was B’s supervisor. A should, therefore, have been overseeing the file and assisting B. LT

Breach of intervention rule In separate disciplinary decisions, two barristers were found guilty of unsatisfactory conduct after acting without an instructing solicitor. One was fined, while the other was censured and ordered to cancel a disputed bill.

$500 fine for acting without instructing solicitor A client’s complaint included claims she had been overcharged and that there had been no instructing solicitor. The Standards Committee found the barrister, A’s fees had been fair and reasonable and took no action on that issue. However, it upheld the client’s claim that the intervention rule had been breached. The rule states that a barrister sole must not accept instructions other than from someone who holds a practising certificate as a barrister and solicitor (Conduct and Client Care Rules, Rule 14.4). A gave no explanation in this case as to why no solicitor was recorded on the file.

LAWTALK 810 / 7 DECEMBER 2012

L AW YERS COMPL AINTS SERVICE The committee said this breach was at the lesser end of the scale of offending. It fined A $500 and ordered him to pay $500 costs to the Law Society.

WILLS SITUATION VACANT

PATRICIA KATERINA TE HAREREMAI LESLEY TAKIMOANA PARANGI KINGI KEMP

Overcharging complaint ‘academic’ A disputed account was again at the centre of a different case involving a breach of the intervention rule. A barrister, B, billed a client $1,500 plus GST for legal services in relation to a summary criminal case. The account had simply said: “Preparation and attendances in relation to your charge … including attendances on client and court appearances in relation to this matter”. After a defended hearing, the client was convicted and sentenced, and B then issued a second bill of $1,200 plus GST to cover the sentencing. The client complained he’d been led to believe the first bill would also cover any sentencing stage. The committee agreed that the client had been entitled to believe there would not be a second bill, given there had been nothing in writing from B saying otherwise and given also the terse, cryptic style of B’s communications with the client throughout the case. The committee said that it was “trite” to say that a barrister sole cannot sue a client for his/her fee. Since there was no instructing solicitor the fee was therefore irrecoverable making the complainant’s concern somewhat academic. The committee censured B and ordered him to pay the Law Society $900 costs. LT

Registry

Family Law Specialist 3+ years experience

With a trans-Tasman presence, providing quality legal advice and exceptional value delivered to our clients, Duncan Cotterill occupies a unique position in the legal market. We advise NZX and ASX listed companies, large public and private sector organisations and SME’s across a range of industry sectors. Our Christchurch office is seeking applications for a Family Solicitor with more than 3 years’ experience in general family work. If you are a self-starter with a professional attitude, commercial awareness, initiative and excellent communication skills, then this could be the ideal next role for you. You will have a broad range of experience in family law, with a particular focus on relationship property and estate litigation. This position works within our well respected Family Law team, where we can provide you with challenging work, great support and a competitive remuneration and benefits package. Having recently won the, Employer of Choice Award at the New Zealand Law Awards, this is a fantastic time to join a firm that you will enjoy working in and be proud to work for. Please apply to: Glenys Roberts – Human Resources Assistant All enquiries will be treated as strictly confidential. PO Box 5, Christchurch 8140 Email: careers@DuncanCotterill.com www.DuncanCotterill.com CHRISTCHURCH NELSON WELLINGTON AUCKLAND SYDNE Y

LEGAL SERVICES The following people have applied to the NZLS for certificates or approvals. Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Nelson Branch VESSEY Callum John Taranaki Branch HENDERSON Jack Clifford Wellington Branch DEEBLE Sarah Charlotte EDMONDS Catherine Anne FISHER Sara-Jayne Gwenyth Dunseath

KINSELLA Sophie Rebekah LACKEY Jenny Islay LEE Richard Desmond Tsin Loong LEWIS Kimberley MCMASTER Rachel Jane PRINGLE Fiona Mary SCOTT Aaron William WEVERS Samuel George WILLIAMS Timothy Campbell Thomas

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch JONES Simon John Oldbury MCKELVIN Ryan Alan WALTERS Jeffrey Murray

Waikato Bay of Plenty Branch HARRISON Daniel Henare Wairoa TALBOT Trudy Belinda

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 13 December 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

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

Changing your LawTalk delivery address If you want to change the address that your copy of LawTalk is sent to, you need to contact the New Zealand Law Society Registry. The LawTalk address labels are generated from the Registry database. If you change your address with Registry, it automatically changes your LawTalk delivery address. There is a form on the Law Society website to do this. It is at www. lawsociety.org.nz/home/for_lawyers/forms/forms/registry_lawyer_ change_of_details. You can contact Registry at registry@lawsociety. org.nz.

Would any lawyer holding a will for the above-named, late of Auckland, mental health worker, who died on 5 October 2012, please contact Willem Strauss, Teei & Associates, DX DP92504, PO Box 21 247, Henderson, Auckland 0650, ph 09 837 3207, fax 09 837 3259, email wstrauss@teeilaw.com.

RONALD ALEXANDER BARTIE

Would any lawyer holding a will for the above-named, late of Flat 2, 158 Palmer Street, Te Awamutu, formerly of Tokoroa, Mount Maunganui and Kerikeri, retired, who died on 18 October 2012, aged 70 years, please contact Lyn Bougen, Fitzgerald Law, PO Box 10332, Bayfair, Mount Maunganui 3152, ph 07 575 8778, fax 07 575 0068, email lyn@fitzlaw.co.nz.

SITUATION VACANT

LAWYER

An energetic lawyer is required for our busy 2 principal practice in Whangarei. We are looking for a lawyer with some experience and with an interest in Family Law and ACC work. Please send your written application and curriculum vitae to: COOK WESTENRA LTD LAWYERS Level 3, 5 Hunt Street P O Box 127 Whangarei telephone : 09 4597000 facsimile : 09 4596280 marianne@cookwest.co.nz

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

LITIGATION

Martin Williams mw@fearonlaw.com

PROPERTY John Phillips

00 44 (0)1483 540841

ajp@fearonlaw.com

PROBATE

Francesca Nash 00 44 (0)1483 540842

fn@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

LAWTALK 810 / 7 DECEMBER 2012

JUDITH FAY NITSCHKE

Would any lawyer holding a will for the above-named, late of Duart House, Hawkes Bay, retired, who died on 4 October 2012, please contact David MacCallum, Baker MacCallum, PO Box 8510, Havelock North 4157, ph 06 877 8024, fax 06 877 8022, email david@bakermac.co.nz.

HIKIHETOA TOIMATA

Would any lawyer holding a will for the above-named, late of 3 Akeake Grove, Takapuwahia, Porirua, retired, who died on 18 October 2012, please contact Bill Bevan, KapiMana Legal Services Limited, PO Box 50796, Porirua 5022, ph 04 238 2351, fax 04 238 2352, email bevanlegal@xtra.co.nz.

CHRISTOPHER JAMES MICHAEL FEISST

Would any lawyer holding a will for the above-named, late of Hamilton, who died on or about 22 November 2012 , aged 58 years, please contact Tanner Fitzgerald, PO Box 95, Hamilton 3240, ph 07 839 9655, fax 07 839 4927, email johnc@tfglaw.co.nz.

Fearon & Co 56x100 ad_BW.qxd:Layout 1

00 44 (0)1483 540843

PETER MITA LANCE DIXON

Would any lawyer holding a will for the above-named, late of 5 Hywell Place, Manurewa, Auckland, who died on 27 February 2012, please contact Debra Law, Law & Associates, PO Box 76124, Manukau, Auckland 2241, ph 09 262 7602, fax 09 263 6406, email debra@ lawassociates.co.nz.

21/8/09 JOHN 09:02 Page 1 POLLOCK

Would any lawyer holding a will for the above-named, late of Dunedin, sickness beneficiary, please contact Jo Hambleton, Gallaway Cook Allan lawyers, DX YP80023, PO Box 143, Dunedin 9054, ph 03 477 7312, fax 03 477 5564, email jo.hambleton@gclegal.co.nz.

JOHN STEPHEN PAURINI KARAMU ASHER

Would any lawyer holding a will for the above-named, late of 69 Patikura Place, Turangi, who died on 6 November 2012, please contact Chris Cargill, Cargill Stent Law, DX KP37002, PO Box 445, Taupo 3351, ph 07 376 0000, fax 07 378 2697, email chris@ cargillstent.co.nz.

IETI MICHAEL JUNIOR LEU’U

Would any lawyer holding a will for the above-named, late of 168 Bedford Street, Cannons Creek, Porirua, retail assistant, who died on 28 October 2012, please contact Bill Bevan, KapiMana Legal Services Limited, PO Box 50796, Porirua 5022, ph 04 238 2351, fax 04 238 2352, email bevanlegal@xtra.co.nz.

LUCIA PERAZZI POLETTI

Would any lawyer holding a will for the above-named, late of 162A Orakei Road, Remuera, Auckland, who died on 17 August 2012 in Italy, please contact Shirley O’Sullivan, Glaister Ennor, Barristers & Solicitors, PO Box 63, Shortland Street, Auckland 1140, ph 09 914 3527, fax 09 356 8244, email shirley. osullivan@glaister.co.nz.

TUA RAKEIPOHO HEKENUI

Would any lawyer holding a will for the above-named, late of 85 Westmeath Street, Waitangirua, Porirua, cultural therapist, who died on 18 April 2012, please contact Bill Bevan, Kapimana Legal Services Limited, PO Box 50796, Porirua 5240, ph 04 238 2351, fax 04 238 2352, email bevanlegal@xtra.co.nz.

MURRAY DONALD MCLAREN

Would any lawyer holding a will for the above-named, late of 85A Fleete Street, Christchurch, who died on 15 November 2012, please contact Peter Richardson, Linwood Law, PO Box 24111, Eastgate, Christchurch 8642, ph 03 389 2121, fax 03 389 9122, email peter@linwoodlaw.co.nz.

GAVIN METHORST

Would any lawyer holding a will for the above-named, late of Wellington, progamme manager, who died on or about 1-3 October 2012, aged 46 years, please contact Rosemary Springett, Mike Garnham Solicitors, PO Box 10240, Wellington 6143, ph 04 472 4646, fax 04 472 4744, email rosemary@ garnhamlaw.co.nz.

SAMUEL MANA PHILLIPS

Would any lawyer holding a will for the above-named, late of 1A Huntlywood Terrace, Hillsborough, Christchurch, accountant/manager, born on 6 July 1980, who died on 14 October 2012 , please contact Vinesh Prakash, Parry Field Lawyers, PO Box 1725, Christchurch 8140, ph 03 348 8480, fax 03 348 6305, email vineshprakash@ parryfield.com.

MICHAEL HANRON ELPHICK

Would any lawyer holding a will for the above-named, late of 87A Victory Street, Welcome Bay, Tauranga, previously of Dunedin and Christchurch, aged 59 years, taxi driver, who died on 9 November 2012, please contact Maxine Taylor, Sharp Tudhope Lawyers, Private Bag 12020, Tauranga 3143, ph 07 928 0781, fax 07 578 5133, email Maxine.Taylor@sharptudhope.co.nz.

LAWTALK 810 / 7 DECEMBER 2012

SITUATIONS VACANT

SENIOR STAFF SOLICITOR John Gwilliam & Co Limited Barristers and Solicitors

SOLICITOR VACANCY Cook Islands

Public Defender – Northern

UPPER HUTT

Our firm is expanding and is seeking to employ a litigator with at least five years experience in Criminal, Family, and Civil litigation. The person should preferably have Lead Provider status for Legal Aid in these areas. The position requires the ability to work well both independently and in a team environment with a strong desire to be successful in litigation work. As this is a new position the successful applicant will be given every opportunity to develop their own practice as well as having the support of other experienced litigators in the firm. The successful applicant may also be required to undertake some supervision of staff. This is an exciting time for the firm as we seek to move to a new model for delivery of legal services in the 21st Century. We would expect any successful applicant to share our vision of making the law more accessible to the public.

Browne Harvey & Associates P.C., the largest law firm in the Cook Islands, has a vacancy for a solicitor with general litigation experience.

The Public Defence Service (PDS) provides high quality legal advice and representation in a full range of legally

The ideal applicant would have 4 to 5 years or more experience or the position may be suitable for a senior practitioner looking to enjoy a more relaxed lifestyle in the tropics.

aided criminal cases. The PDS also provides professional leadership of the duty lawyer service. As the largest employer of criminal lawyers in the country, it has offices servicing the

The salary offered will be in the range of $60,000.00 $70,000.00 depending on the level of experience of the successful applicant.

major metropolitan courts from Dunedin to Auckland. The appointment of the current Public Defender, Northern

The Cook Islands offers a modern infrastructure in a beautiful tropical environment with relatively unspoiled beaches, lagoons and reef. Please apply to: Browne Harvey & Associates P.C. Barristers, Solicitors & Notary Public

John Gwilliam & Co Limited PO Box 40 457 Upper Hutt

PO Box 429 Rarotonga COOK ISLANDS

Closing date for applications is 13 December 2012.

Vacancy 23541

The position will involve mainly civil litigation but will also comprise some criminal litigation, and general commercial, conveyancing and international law matters.

Written applications, with curriculum vitae and referees, should be marked confidential and forwarded to our offices at:

for the attention of John Gwilliam or emailed to john@jgwilliam.co.nz. All applications will be treated as confidential.

Based in Auckland

to the District Court bench has given rise to an exciting opportunity to contribute to this significant development in the provision of publicly provided criminal defence services. The Public Defender provides professional leadership and management for the delivery of cost efficient and high quality criminal legal aid services in the Northern Region of

Tel: (682) 24567 Fax: (682) 24561 Email: law@browneharvey.co.ck

New Zealand. The Public Defender will report to the Director, Public Defence Service and lead a highly dedicated team of Deputy Public Defenders. As a key member of the PDS Senior Management Team, the Public Defender will contribute to the strategic and operational direction of the PDS. The role will also contribute

BANKING AND FINANCE LAWYER – LEADING FIRM This top tier firm is looking for a lawyer with between three and five years’ experience to join its B & F team. Reporting to a very personable and highly regarded partner, the work entails a broad range of banking and finance matters and you will fill a very important gap between the junior and senior members of the team. The team members are working at a higher level than their years’ PQE and once you’ve showed you’re a trusted pair of hands, you’ll likely enjoy a high level of autonomy. REF: 29886

SENIOR COMMERCIAL ASSOCIATE Our client, recently named an Employer of Choice, seek a Senior Commercial solicitor to join their Nelson office. Ideally you will have 5 + years’ PQE with a corporate and commercial background attained from a large commercial firm. You will conduct high quality corporate and commercial work for local clients such as wine growers and fisheries, as well as national clients such as NZX listed companies and some international clients too. A genuine passion for Nelson is essential! REF: 31929 To apply, please visit www.momentum.co.nz and enter the reference number on the home page. Alternatively, email your CV and cover letter to jobs@momentum.co.nz quoting the reference number. For further information including a job description, please contact Carla Wellington or Marissa Barnao on (04) 499 6161. 191 Queen Street Auckland P +64 9 306 5500

40 Mercer Street Wellington P +64 4 499 6161

to the development and implementation of criminal legal aid

LEGAL COUNSEL

and Justice sector initiatives.

• Large manufacturing business • Intermediate level

We are seeking applications from well respected senior

This large manufacturing and exporting business is expanding and needs another in-house lawyer. The company is a significant participant in one of New Zealand core business sectors. They produce a diverse range of high quality products marketed internationally.

lawyers with a speciality in criminal advocacy, who have proven credibility with judges, peers and others in the legal community. You will also have strong management skills and

Based in their manufacturing site which is located in a charming provincial town, you’ll be working closely with the General Counsel and the Company Secretary and with senior management and other key stakeholders.

business acumen. Your professional leadership and expertise in mentoring,

The role has a broad ambit but the core legal skillset sought is contract drafting, review and negotiation. Experience with procurement and contracts management processes would also be highly advantageous.

coaching, training and criminal advocacy will ensure that

The ideal applicant will have excellent relationship building skills, be independent, outgoing and collaborative.

effective and well supported. You will also be an effective

Applications close on 12 December.

improvements.

To apply, please visit www.momentum.co.nz and enter reference number 31933 on the home page. Alternatively, email your CV and cover letter to jobs@momentum.co.nz quoting the reference number. For further information including a job description, please contact Carla Wellington or Marissa Barnao on (04) 499 6161. Please note all applications will be acknowledged electronically unless otherwise specified.

Deputy Public Defenders in the Northern region are leader of change as the PDS makes practice management

To apply, please visit our website www.careers.justice.govt.nz then view vacancy 23541 in the Current Opportunities Colour break down

page. If you would like to find out more information about

C=100 M=0 Y=90 K=40 | PMS = 349

this position, please contact Brendan Horsley,

C=0 M=0 Y=0 K=70 | 70% Black

C=0 M=0 Y=0 K=20 | 20% Black

brendan.horsley@justice.govt.nz Applications close on Friday, 18 January 2013.

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

LAWTALK 810 / 7 DECEMBER 2012

LAWTALK 810 / 7 DECEMBER 2012 LawTalk NZ Christmas Advert 267x87 OL.indd 1

23/11/2012 11:37

SITUATIONS VACANT

INSPIRING, MOTIVATIONAL, EXCEPTIONAL Commercial Solicitor – ready to step-up? Well now’s the time to seize the day!

What’s On Offer

The Role

Junior Litigator 2-3 years Wellington Losing one of their star performers to Auckland, this established, vibrant and innovative CBD practice is recruiting a junior litigator to join their talented litigation team. The successful candidate will be self-motivated with 2-3 years post qualication experience across general litigation to include debt recovery, insolvency and dispute resolution. Client facing, this opportunity will allow you to develop your practical experience working end-to-end across a variety of matters with a range of clients to include corporates, nancial institutions and commercial businesses.

You

Words people use to describe you are:

Working in brand new ofces located in the CBD overlooking Wellington’s harbour you will enjoy a supportive and fun environment that will provide you with a competitive remuneration and ensure you are up to date with the latest in legal practice. For a condential discussion please contact Jennifer Little at Jennifer@hrshop.co.nz and reference J000040. 0508 HR SHOP / Level 1 - 182 Vivian Street Po Box 7031, Wellington South

www.hrshop.co.nz

Call Karen at Courtney Law Resources on 021 968 566 or email karen@courtneylawresources.co.nz