LawTalk 817 by New Zealand Law Society

LAWTALK

26 April 2013 / 817

FOR THE NZ LEGAL PROFESSION

Lawyer In the Middle We give you the rundown on Alternative Dispute Resolution and Mediation · PaGe 5 ·

MEANWHILE, ON THE INTERNET…

PA g e 1 4

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PA g e 18

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INSIDE

THE MAGAZINE

FEATURE: Employment and recruitment

The introduction of significant law changes by way of SOP bypasses the normal vetting processes and increases the risk of sloppy lawmaking p. 18

“To be a good mediator you need to be expert in finding common ground and working with people”

The crucial role of emotions

Brookers A to Z Of Legal Terms

Emotions are an important aspect of our psychological wellbeing, and therefore our overall mental health ...

This e-book is a very userfriendly and useful new legal research tool for New Zealand lawyers, allowing the user to quickly locate defined legal terms ...

14 Meanwhile, on the internet… Richard Susskind’s latest exploration of the destiny of lawyers says lawyers and legal institutions will change more radically over the next two decades than over the past two centuries ...

18 SOP sinks mining protesters The Government appears to be developing a practice of using post-Select Committee supplementary order papers (SOPs) as a portal through which to rush controversial law changes.

22 Swinging doors – the increasing ability to change fields

p. 4

Listening to the Other Side : Lawyers in ADR Alternative Dispute Resolution, or ADR, holds an important place within our civil justice system. In this issue, LawTalk casts the spotlight on ADR, including its role and some pointers on being an ADR practitioner.

Feature by Rachael Breckon

A job in-house no longer means closing the door to firm life. In fact these days lawyers are finding they can move seamlessly between the two ...

24 New postgraduate scholarship to Oxford A new scholarship to support postgraduate study in law at Oxford University has been announced – the FMB Reynolds Scholarship in Law to Oxford ...

REGULARS

9 People in the law

ADVERTISE WITH US!

LAWTALK • LAWPOINTS • OUR WEBSITES

11 Moving Towards CPD

12 Practising Well

Effective Practice

Law Reform

The Bookshelf

CLE

CHRISTINE WILSON Advertising Co-ordinator advertising@lawsociety.org.nz 04 463 2905

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FROM THE LAW SOCIET Y Christine G rice

rofessor Dame Hazel Genn QC launched a stinging attack on the promotion of mediation at the expense of the civil justice system, coining the phrase: “Mediation is not about just settlement but just about settlement.”1

In the recent NZLS CLE Ltd seminars led by the Chief High Court judge, Justice Winkelmann, she emphasised that the courts in their civil jurisdiction must remain at the heart of our system of civil justice. The introduction to the seminar says:

The quip is often made in discussions about mediation processes versus adjudication. In fact the comment was made, not in a manner condemning mediation, but rather in the context of concern about the promotion of mediation to save costs as a substitute for a functioning civil justice system.

“A necessary condition for a society that exists under the rule of law is that we have a just and efficient court system which deals with civil as well as criminal cases.”2

Mediation and alternative dispute resolution processes (ADR ) are options for settling disputes. They are not a substitute for a state run and properly funded civil justice system. But all lawyers, not just litigators, must have at their command the full range of processes for use in negotiation and dispute resolution. These options range from adjudication, through to arbitration, expert determination, facilitated negotiation, mediation and many variations of those processes. Negotiated settlements, with or without the assistance of a facilitator or mediator, are the way in which the vast majority of civil proceedings are resolved. These settlements are crafted with one eye on what the likely outcome of a court case would be. A lawyer representing a client in a negotiation or mediation must undertake a skilled risk analysis which takes into account: the likely outcome of a court decision, the time likely to reach the court, the circumstances of the clients, the costs and then the lawyer calculates risk and the client’s tolerance for uncertainty and stress. Risk analysis and strategic dispute resolution design have become sophisticated skills. We need up-to-date case law to undertake those risk analyses and to assess risk of likely outcomes. Without a well-funded civil justice system those cases and precedents would not be available: cases settle in the shadow of the law.

Prof of socio-legal studies at UCL. Hamlyn Lectures, December 2008.

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Mediation and mediation/arbitration processes are also offered for dispute resolution at appropriate levels in the state funded system: for instance the Disputes Tribunal and Employment Tribunal and Family Court mediation. Complaints services, including the New Zealand Law Society Complaints Service, provide alternative dispute resolution based processes.3 Complaints against lawyers are often complicated. In some cases they are not about the service the lawyer provided but really about the outcome, process or matter for which the client had retained their lawyer. The use of ERS in those cases usually results in a better outcome for all involved, as the process and the possibilities available in the complaints system are explained to the parties in a timely manner. The advantages of the ADR systems are that they are usually more cost-effective, proportionate, quicker and better able to respond to the needs of the parties involved. In a court or adjudicative process the judge imposes the solution which may or may not satisfy the parties, but research indicates that even for the party who “wins” often the victory comes at a high price, not only in time and money and stress but also damaged relationships. Nevertheless mediation is not the solution for all disputes and the recent seminar also made the point that it was the job of the civil courts to provide adjudicative civil justice, not to provide alternative dispute resolution options which could be provided by the private sector.4 The skills required to make the most of the alternative dispute resolution processes differ depending on the process involved. All lawyers should make it their business to ensure that they are familiar with all of those processes and that they take steps to educate themselves and hone their skills. This issue of LawTalk explores ADR and the changes to the High Court further in its feature starting on page 3. Christine G rice New Zealand Law Society Executive Director

Winkelmann, Asher, Fogarty, and Miller JJ. The New High Court Case Management Regime. February – March 2013. NZLS CLE Ltd www.lawyerseducation.co.nz. Also available as a webinar on that site. 3. NZLS Complaints Service Early Resolution Service. See LawTalk 811, 1 February 2013, p9. 4. supra. The new case management regime covered of the seminar will reduce the extent to which judicial settlement conferences are offered.

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 advertising@lawsociety.org.nz Inquiries about subscriptions to: subscriptions@lawsociety.org.nz DESIGN: Andrew Jacombs Ph +64 4 463 2981 andrew.jacombs@lawsociety.org.nz Printing: Lithoprint, Wellington Lawtalk is printed on an environmentally responsible paper, produced using Elemental Chlorine Free (ECF), FSC ® Certified Mixed Source pulp sourced from Well Managed & Legally Harvested Forests.

Coming up … Shirley Smith address This year’s Shirley Smith address will be delivered by Justice Teresa Doherty at 5:30pm on 14 May at Victoria University’s Rutherford House Lecture Theatre 2. Justice Doherty is a Judge of the Special Court of Sierra Leone and the address will look at her work in that court. It will, in part, focus on crimes committed against women during warfare, particularly sexual crimes. Organised by the Wellington Women in Law Committee, this annual address is in honour of Wellington lawyer Shirley Smith, who was a strong advocate for equality and women’s involvement in the legal profession.

Women judges conference More than 100 eminent women judges from around the world will attend an International Association of Women Judges conference in Auckland from 10 to 12 May. Attendees will include UN Special Court of Sierra Leone Judge Teresa Doherty, Sri Lankan Supreme Court Justice Shiranee Tilakawardene and Papua New Guinea Supreme Court Justice Catherine Davani. Other participants will be Australian Federal Family Court Chief Justice Diana Bryant, Solomon Islands Chief Magistrate Emma Garo, Taiwanese Judge Liling Lee, who is helping establish a Juvenile and Family Court system in that country, and UN Disputes Tribunal Judge Coral Shaw. Conference co-convenors Justice Susan Glazebrook and Judge Nicola

Mathers say the organisers are very pleased with the overall quality of attendees and the strong regional representation from 16 jurisdictions. “We are grateful for the support of the New Zealand Law Foundation to enable several of the judges to travel here and take part,” Justice Glazebrook says. The International Association of Women Judges includes 4,000 members from 103 countries, sharing legal knowledge and providing training and education on issues of discrimination and violence against women.

Dispute resolution conference Alternative dispute resolution on both sides of the Tasman will be the focus of a conference in Auckland from 25 to 27 July. The gathering is being hosted jointly by the Arbitrators’ and Mediators’ Institute of New Zealand (AMINZ) and the Institute of Arbitrators & Mediators Australia (IAMA). The conference will look at all methods of ADR, including mediation, arbitration, adjudication and expert determination. Keynote speakers include Nina Meierding, a professor of mediation studies at Pepperdine University, in California, and famed Middle Easternconflict negotiator, Moty Cristal. The line-up also features Robert Fisher QC, international commercial arbitrator Doug Jones and Justice Clyde Croft of the Victorian Supreme Court. See www.aminz.org.nz or contact AMINZ executive director Deborah Hart, phone (04) 499 9384 executivedirector@aminz.org.nz.

ISSN 0114-989X 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.

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l aWYer

Alternative Dispute Resolution, or ADR, holds an important place within our civil justice system. In this issue, LawTalk casts the spotlight on ADR, including its role and some pointers on being an ADR practitioner. FEATURE BY raCHael BreCKon

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s In aD r

hE uSE oF ThE WoRD “alternative” when describing out of court dispute resolution has been “unfortunate” according to mediator Warren Sowerby. Bankside Chambers barrister and mediator Mr Sowerby, who can boast more than 1,900 mediations with over 15,000 participants, argues the word “alternative” has given rise to the suggestion that it is an alternative and it is not. “It is really just part and parcel of, and an extension of, the litigation process,” Mr Sowerby says. While being careful to iterate that judicial decision making is the “bedrock of any civilised society” he explains that settling litigation through negotiation is not new and has occurred over the centuries. “The mediation process has simply introduced the use of a facilitator into the parties’ private negotiation process, when they believe such a process and person will be helpful,” Mr Sowerby says. However, lawyers who desire to pursue a career in ADR should not take the idea it is an extension of the litigation process to mean they can seamlessly shift from adversarial practice to mediation or arbitration.

For many lawyers, arbitration – where two or more parties agree to submit all or certain disputes between them to an independent person called an arbitrator for a binding decision – fits more naturally into their legal training. However, mediation is a much more signification deviation from the adversarial techniques generally used by lawyers. Commercial mediator and 2012 New Zealand Law Awards Mediator of the Year Geoff Sharp left his position as a litigation partner at Bell Gully a decade ago to pursue a career as a mediator. He says lawyers interested in a career in mediation need to be “very clear” about the difference in the role of a mediator. Lawyers need to “effectively change their instincts and sit in the middle of the conflict and not on one side of it and this is very difficult to do in real life,” Mr Sharp says. “Because if you have been in practice for 25 years, then your instinct is to advance your client’s case, and not necessarily see the merits in both sides. The mediator does exactly the opposite.” Deborah Hart, executive director of the Arbitra-

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TO BE A GOOD MEDIATOR YOU NEED TO BE EXPERT IN FINDING COMMON GROUND AND WORKING WITH PEOPLE

tors’ and Mediators’ Institute of New Zealand speaks along similar lines to Mr Sowerby, that the relationship between ADR and law are not completely “alternative” processes. “Most often mediation occurs in the shadow of the law,” says Ms Hart, who also started her career as a lawyer. However, lawyers need to understand what ADR processes are and have an understanding of these processes as they are increasingly being used, she says. It is a common myth that as a lawyer you can just be a mediator without any further training, according to Ms Hart. “To gain a law degree you do not have to have learned these alternative processes.” “You need to do the things you would do in setting up a separate career. You need to study it. You need to have a business plan,” Ms Hart says. According to Ms Hart, to be a good mediator you need to be “expert in finding common ground and working with people to help them come to a resolution.” Interim chief executive of Excellent listening skills LEADR New Zealand, Ava Gibson Flexibility says the practitioner acting as Creativity mediator needs to be “impartial Non-judgemental approach and manage a process that moves Ability to sit in the middle of people from positions to their other people’s conflict interests. This involves being Ability to build quick client able to deal with the expression rapport of emotions, as well as informaDo not need a template, or tion.” formula for resolution Ms Gibson says because a Focus on resolution not mediator also has no advisory blame or determinative role in regard Ability to close deals to the content of the dispute Work on a case-by-case or the solution, this can be a basis challenge to people who are Ability to empathise legally trained. Great communication skills “Lawyers’ training requires Ability to work with uncerthem to analyse situations tainty and limited control according to legal principles (the ADR practitioner to establish right. Mediated controls the process but the outcomes may include provicontent and the outcome are sions which are beyond the in the hands of the parties). outcomes that are available

characteristics of a good AdR practitioner ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪

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in a courtroom, [and] which have value to the parties,” she says. “Sometimes this can be a challenge to a lawyer, who may see the outcome as being different from a pure application of rights.”

THE UnclEAR RoAd To An AdR cAREER

nnABEl ShAW SEES ThE “IRony” in the fact that she is considered a young mediator. Ms Shaw, who is in her 30s, is considered a young mediator, and it is a difficult field to crack for those in the earlier years of their career. She has been working as an employment mediator since 2007 and is now also on the board of the professional mediation body, LEADR. Before that, she worked as a lawyer, negotiator, arbitrator, investigator, dispute resolution and communication trainer and a senior associate at one of New Zealand’s largest commercial law firms. While working as a lawyer, Ms Shaw found herself sitting in a divorce case thinking there has “got to be a better way than this” and began to explore a career in mediation. She said it soon become clear that there wasn’t really a path, so she followed her nose and studied (she now holds a post graduate diploma in dispute resolution from Massey University), read up on mediation and networked with mediators. She also moved her legal focus to employment law and employment investigations, which more commonly uses ADR techniques. So what Ms Shaw did was “create” a pathway into ADR for herself. And for young professionals wanting to pursue a career in mediation it is probably still the best way to go about getting into it, she says. It is a hard profession to break into generally but “particularly challenging for younger people. I think that is probably because there is a perception that mediators need to be somebody with age and experience.” However, Ms Shaw disagrees with this philosophy and argues: “What mediating requires is maturity and I don’t think that necessarily comes with age.”

A lT E R n AT i V E d i S p U T E R E S o lU T i o n i n T H E c o U R T S

in nUm BERS

lTERnATIvE DISPuTE Resolution continues to play a larger role in the New Zealand court system. ADR approaches hold an important place within our civil justice system. They provide useful mechanisms for resolving disputes, particularly where parties wish to maintain relationships and confidentiality. Often ADR is also cheaper and results in more creative, innovative and enduring settlements, says a Ministry of Justice spokesperson, who did not wish to be named. One of the most recent integrations of ADR was through the review of how judicial settlement conferences are allocated to proceedings. The review led to the decision that a judicial settlement conference will only be allocated where private mediation is deemed inappropriate. The new rules came into force on 4 February 2013. When asked for an overview of the role of ADR within the formal court processes, the ministry said mediation was currently used for many care of children cases in the Family Court and in Disputes Tribunal matters resolved by referees, who must first attempt to mediate an agreement between the parties. Mediation is also available in the Environment Court and elements of the civil court system are designed to encourage resolution by parties themselves, for example, graduated fees and the District Court Rules around the exchange of information, according to the ministry. Centre for Research Evaluation and Social Assessment researchers Kay Saville-Smith and Ruth Fraser prepared research on ADR in the courts titled: Alternative Dispute Resolution: General Civil Cases in June 2004.

The report, which LawTalk believes to be the most recent carried out by the ministry, looked in detail at the potential disadvantages and advantages of ADR in the courts. This included focus groups and interviews with lawyers. According to the report lawyers â&#x20AC;&#x153;repeatedly expressed the view that ADR had potential benefits for the court system through reducing pressure on the courts by reducing filings, encouraging early settlement, narrowing the issues that require adjudication by the courts and developing solutions to disputes that are less likely to be subject to re-litigation.â&#x20AC;? An accompanying survey of 125 lawyers showed participants felt comfortable with the courts ordering parties to at least some, although not necessarily all forms of ADR. At the time, lawyers felt significantly less comfortable with the notion of the courts ordering parties to arbitration than ordering them to mediation. Only 22.2% of respondents felt court orders to arbitration were acceptable compared to 53.7% who accepted the notion of the court ordering parties to mediation, the report states. However, the report was careful to note that even when, in principle, lawyers felt comfortable with greater promotion of ADR, they were also careful to express the view that the court system has an obligation to provide disputants with access to justice and it would be inappropriate to exclude people from court adjudication if they wished to pursue the resolution of legal disputes through that process.

91%

BELIEVED THAT ADR WOULD REDUCE COSTS FOR LITIGANTS

78%

BELIEVED THAT ADR WAS JUSTIFIABLE BECAUSE IT WOULD REDUCE TIME TO SETTLEMENT/DISPOSAL

88%

BELIEVED THAT ADR WAS JUSTIFIABLE BECAUSE IT WOULD INCREASE SETTLEMENT

44%

REPORTED THAT THEY BELIEVED ADR WOULD REDUCE PRESSURE ON THE COURTS

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In The CouRT oF PuBLIC oPInIon C r o W D -s o U r C e D D Is P U T e r e s o l U T Io n

RgumEnTS ovER ThE yEAR CAPTAIn Cook first set eyes on Aotearoa, or what the F in JFK stands for* are now settled online. However questions remain over whether digital natives will be comfortable resolving personal life disputes on the world wide web. Websites addressing personal questions are already cropping up all over the web. hetexted.com enables users worldwide to post a “text from a guy” and visitors to the site can vote if they think: a) he’s into you; b) he’s not into you; or c) the verdict is still out. While hetexted.com (which also has an array of “bros” you can ask for confidential advice) initially seems a far cry from formal Alternative Dispute Resolution, this platform is cropping up online. Canadian internet start-up eQuibbly launched in 2012 with the idea it would solve disputes through ‘crowd-sourced’ mediations, as well as more traditional (though online) arbitrations. When eQuibbly began, it allowed both sides to post disputes on the site and invited the other side to give their perspective. The idea was: “As a collective, you trust your friends and neighbours to provide you with accurate and

THE EU’S NEW ONLINE DISpUTE RESOLUTION IS SIMpLE, FAST AND LOW-COST 8

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useful information every time you look something up on Wikipedia and TripAdvisor, and to make the appropriate decision when choosing your government, which controls so many aspects of your life. So why not have them help you resolve your disputes?” Like hetexted.com, anyone in the world could put in their two-cents over who they thought was right or wrong. The formula didn’t appear successful, and links to the publicly listed disputes now go to a holding page, where eQuibbly states: “after much thought, [they] decided to concentrate [their] efforts on private and confidential dispute resolution rather than public dispute resolution using crowdsourcing. “We still welcome your use of eQuibbly to resolve disputes in a virtual private room via mediation or arbitration. You may wish to hire a professional listed on eQuibbly to help you resolve a dispute, or you can do so with your own mediator or arbitrator.” eQuibbly is one of numerous websites that have been established to help resolve dispute online. Online Dispute Resolution (ODR) has been adopted by the European Union. In March this year, the European Parliament voted in ADR to be used by EU customers to resolve their disputes out-of-court. The European Commissioner for Health and Consumer Policy, Tonio Borg, touted the new system as “a simple, fast and low-cost manner, and also for traders who will be able to keep good relations with customers and avoid litigation costs … which will significantly improve everyday life for consumers across Europe”. According to the ODR regulation, an EU-wide online platform will be set up for handling consumer disputes that arise from online transactions. The platform will link all the national alternative dispute resolution entities and operate in all official EU languages. The ODR platform is expected to have been rolled out and operational by the end of 2015.

Caption Cook first landed eyes on Aotearoa in 1769 and the F is for Fitzgerald – you can put your smart phone away.

pEOpLE IN THE LAW pEoplE

SIR IAn BARkER QC CElEBRATED the 40th anniversary of his admission as a Queen’s Counsel at a function at Bankside Chambers in Auckland recently. Sir Ian was admitted in 1958. After becoming a partner of Morpeth Gould, he went to the independent bar in 1969 after 11 years in partnership. Four years later, on 12 March 1973, Sir Ian took Silk. He had been in practice for just 15 years and was aged 38. He was appointed a High Court Judge in 1976 and was knighted in 1994 for services to the law. He retired from the High Court bench in 1997 after 21 years’ service. Since his retirement, Sir Ian has conducted many commercial arbitrations and mediations. He has taken on major appointments both in New Zealand and overseas, including being chair of several arbitral tribunals for the ICC Paris and the PCA at The Hague. He was the first World Intellectual Property Organisation domain dispute panelist appointed in New Zealand in 2000 and resolves domain disputes for the WIPO, National Arbitration Forum (USA) and Internet New Zealand. His many professional

appointments include Past-President and Fellow of the Arbitrators’ and Mediators’ Institute of New Zealand, and Fellow of the Chartered Institute of Arbitrators (UK). He was chairman of the Banking Ombudsman Commission of New Zealand for 13 years and Chancellor of Auckland University from 1991 to 1999. A senior member of Bankside Chambers, John Katz QC, addressed the celebration. He spoke of Sir Ian’s “spectacular” career, unlikely to be equalled let alone surpassed by anyone else. “In all things, Sir Ian has followed and continues to follow the counsel of Paul to Titus … ‘to speak evil of no person, not to be litigious but of sober judgment, showing every kindness to all people’.” A number of lawyers have been reappointed to tertiary institution councils. Invercargill lawyer Sarah Brown has been reappointed chair of the Southern Institute of Technology Council until 30 April 2015. Auckland lawyer Peter kiely has been reappointed to the University of Auckland Council until 31 May 2017. Timaru lawyer Craig o’Connor has been appointed to the Aoraki Polytechnic Council until 30 April 2015. Manukau lawyer David Wong-Tung has been has been reappointed to the Manukau Institute of Technology Council until 30 April 2017. Rotorua lawyer ngaroma Tahana has been reappointed to the Waiakiki Institute of Technology Council until 30 April 2016.

recognises the student with the best overall mark in Auckland University’s employment law class. Suzanne is currently completing her Honours degree. Suzanne developed a passion for employment law through previous jobs working on staff development and workplace mediation. This led her to law school. Suzanne was presented with a cheque for $1,500 at a function at the firm’s Auckland office on 10 April.

on THE moVE

Stu Barraclough

David Tyree

Govett Quilliam has appointed two new associates. Stu Barraclough is in the firm’s commercial team and specialises in commercial and property law. David Tyree is in the family team and specialises in family and relationship property matters. Jack henderson has also joined

Suzanne Inneskent is the winner of the Simpson Grierson Employment Law Prize for 2012. The award

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Govett Quilliam. Jack was admitted on 15 February 2013. He is based in the firm’s Inglewood office and supports Geoff Shearer Jack Henderson and Alice Davies, specialising in commercial law with a particular focus on rural legal matters. Bianca Tree has joined Heimsath Alexander in Auckland as special counsel. Bianca practices environmental and resource management law. She has experience across a broad spectrum of retail, commercial, residential, forestry, energy generation, aquaculture and infrastructure sectors. Edward Dunphy has joined Anthony Harper in Auckland as a property partner. Ed is well known for his work with clients who operate in a variety of industries, as well as advising on significant consortia contracts on major infrastructure projects. Chen Palmer has appointed Jim Castiglone a partner. Jim is a core public law expert. He has particular specialty in advising on resource management and infrastructure issues including major port, airport, telecommunications and energy projects. Jim also specialises in government relations, and provides his clients with strategic advice on major projects, including for the recovery and rebuild of Canterbury. Jim also advises clients on employment law matters, including health and safety rights and obligations. He works closely with large Chinese SOEs and other investors from mainland China and Hong Kong on large New Zealand construction projects and other investments.

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LAW FIRM NEWS

The Greenwood Roche Chisnall Auckland office team standing (from left) Hadleigh Yonge, Annabelle Watson, Fran O’Reilly, Michael Goodger, Matt Couch, Trudy Conway, Celia O’Kane and seated (from left) Annette Clarke, Steve Woodfield, Chris Moore and Kelly Wyse.

Specialist projects firm Greenwood Roche Chisnall can now call itself truly national, with new offices in Auckland and Christchurch. The addition on 2 April of new commercial property and infrastructure partners Chris Moore (also the New Zealand Law Society President) and Steve Woodfield follows hot on the heels of its appointment of resource management specialist Lauren Semple. The new partners bring with them experienced teams, complementing and adding further depth to the GRC specialist projects profile. In Auckland, Chris and Steve are joined by principals Matthew Couch, Michael Goodger and Annabelle Watson, senior lawyer Hadleigh Yonge, lawyers Kelly Wyse and Trudy Conway and legal executive Frances O’Reilly. In Christchurch, Lauren is joined by principal Monique Thomas and lawyer Hannah Marks. In Wellington, principal Barry Walker has also joined the firm from Freehills in Sydney, and Doran Wyatt has been promoted to principal. Commenting on the expansion, founding partner John Greenwood says the firm remains committed to delivering excellence, with a fresh culture and a one-office approach. “Our expansion is about responding to the needs of our clients, who define us.” Chris Moore says that what stands out most to him about GRC is its innate sense of knowing and being comfortable with its niche in the market, its care for its people, and its great sense of fun. DLA Phillips Fox joined forces with 300 other teams and walked 100km around Lake Taupo in aid of Oxfam on 6 and 7 April. Oxfam is a longstanding pro bono client of the firm, and for the past 6 years DLA has participated in the annual Oxfam Trailwalker. This year’s team comprised Adam McDonald, Nikki Farmer, Brad Cuff and Matt Booth. Starting in the picturesque town of Kinloch, the trail continues along Lake Taupo’s water edge, before Lady and the Tramp crossing the finish line at this year’s crossing through a series of private farms, Oxfam Trailwalker. twisting and turning through forests and climbing up and down hills. Teams have less than 36 hours to complete the course. The team of four walkers received invaluable support from their support crew of seven. The trail proved both a mental and physical challenge and was definitely “character building”, Brad says. The weather proved a surprising challenge. With temperatures dipping to 0 degrees, many contestants and support crew members struggled to stay warm. The DLA team’s strategy was to stay together and finish as a team, which they are delighted to have achieved in 26 hours and 54 minutes. The objective of the event is to raise funds for Oxfam. DLA organised a number of fundraising initiatives, including a quiz night, cake sale and a “name the team” voting competition, with the winning entry being Lady and the Tramp. The team had raised $4,391.90 when LawTalk went to print.

MOvING TOWARDS CpD The Law Society is working on an initiative to require all New Zealand lawyers to complete a required level of continuing professional development (CPD) each year. This is likely to take effect from 1 April 2014, with lawyers able to participate from 1 October 2013.

Study groups New Zealand’s CPD initiative has similarities to some Canadian provinces, which have introduced CPD requirements recently. Organising and/ or taking part in a study group has become a popular way for Canadian lawyers to fulfil their activity-related CPD requirements. Many New Zealand lawyers already take part in study group activities, often very informally. If you were to spend a bit of time planning and structuring these activities, you could include them in your CPD plan and record participation as CPD activity.

What is a study group? This is a group of lawyers who come together to discuss information and concepts relating to their area of practice. Participants may be lawyers from

a variety of settings – sole practitioners or small firm lawyers, lawyers practising in the same area of law, or lawyers in the same firm, legal department or government agency.

What are the benefits of a study group? Participating in study groups gives you the chance to have interactive peer-to-peer discussion, to share experiences and to learn from others. You can benefit from a wide range of experience and knowledge, analyse issues from several different angles, get feedback on your ideas and thoughts, and gain insights into how other people work and think. Study groups are also a flexible and cost-efficient way of keeping up with changes to the law and how they might affect your clients.

How many people should participate? Study groups tend to work best when there are four or five members to one facilitator, meaning lawyers in smaller centres may find them particularly useful. Ideally participants would come from the same geographic area, but lawyers practising in isolated communities or highly specialised areas of the law might find it worthwhile to meet

online or via Skype or another video or teleconferencing facility.

What about the length and venue? Study groups typically take around an hour. They work best in a relaxed environment and often work well combined with a BYO lunch or similar. No more than two topics should be discussed in an hour.

Who should lead the group? The group will need to appoint a facilitator for each of the topics. The facilitator’s job is to introduce the topic, lead and encourage discussion, and reinforce or clarify the content. Facilitators do not have to be subject matter experts. Study groups are usually aimed at providing an opportunity for participants to learn from each other. Some facilitators may be experts in a particular area, and might then have a greater input than the other members of the group by acting more as a presenter and answering questions. If you facilitate a study group you will be able to count at least some of the time you spend preparing for it towards your CPD activities. The information you draw on could come from courses or part-courses you have attended in the past.

16+17 MAY 2013 NAPIER WAR MEMORIAL CONFERENCE CENTRE

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Pr aCTIsInG Well The crucial role of emotions By HUGH noRRiSS EmoTIonS ARE An important aspect of our psychological wellbeing, and therefore our overall mental health. When we say we are feeling good or we are happy, we are usually experiencing a range of positive (approach) emotions such as joy, hope, contentment, or love. Negative (avoidance) emotions such as fear, sadness, contempt and shame are experienced when we feel stressed and our wellbeing is low. Emotions are crucial to be aware of in the workplace because they drive so many of our behaviours and can affect our cognitive abilities, creativity and physical health. It’s easy to think that we have little control over our emotions, that our emotional responses are either fully determined by our personality or what life throws at us, or both. But as mentioned in my previous article, research suggests that while these factors do influence our emotional experiences, we still have considerable ability to shape our wellbeing and emotions through intentional activities.

emotions because they make us feel good. Extensive data from Dr Barbara Fredrickson, a leading researcher in this area, suggests that positive emotions also contribute to building psychological resilience, stronger social bonds, increased cognitive ability and better cardiovascular health. In an organisational setting, positive emotions can be associated with improved business performance and better collegial relationships. In their research-based book and website on the spread of information and health behaviours through social networks, Connected, James Fowler and Nicolas Christakis also show that emotions are contagious. So it seems that increasing positive emotions in our lives, and in the groups of people we associate with, is going be good for us. But there is a twist. It seems we do need to experience some negative emotions as well to augment our wellbeing.

place of the negative

Dr Fredrickson’s research shows that for us to have good psychological wellbeing (or to thrive or flourish), an optimal ratio between positive and Most of us usually prefer positive negative emotions begins at about 3:1 Professional forensic accounting services and perhaps goes in civil and commercial matters. as high as 8:1. All emotions have their uses. The negative ones are often related to our immediate survival, to Expertise I Experience I Independence respond quickly Paul Moriarty to threats and Level 27, PwC Tower, 188 Quay Street, Auckland 1010 prepare the body P:09 363 3700 M:022 107 5787 for fight, flight or E: paul@moriartyassociates.co.nz freeze. The positive www.moriartyassociates.co.nz emotions are more

positive emotions

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about building resources and social bonds in times of relative safety. In the modern world, threats to our safety are much reduced, but negative emotions can still be valuable, not just to leap away from a bus that we didn’t see soon enough while crossing the road, but also to avoid toxins, social threats and curb some of our overoptimistic tendencies that can lead to terrible mistakes. Also many of the worthwhile things we do in life require us to get out of our emotional comfort zone, for instance the experience of fear associated with the uncertainty of setting up a new business venture, or anger associated with being motivated for a socially just cause. Interestingly, many popular self help books entice us on a path where all negative emotions are banished as failings in thought. Most of these books have no scientific support and may set up unrealistic and unhelpful expectations. A good analogy that Dr Fredrickson uses for a healthy balance of emotions is the yacht. The positive emotions are like the sail. They can propel us happily and successfully through life. The negative emotions, which should be less by a factor of three, but will be more potent in eliciting our behavioural responses, form the keel and provide stability through balance and realism. When a threatening gust of wind blows, the yacht doesn’t immediately capsize because the keel stabilises it with an appropriate response. In the same way we need our negative emotions to respond to sudden life challenges. However a yacht with a very heavy and large keel and a small sail will struggle through the water. If we habitually incorporate many negative emotions into our routine responses to life, or perhaps suffer from chronic stress with persistent fear and anxiety,

our psychological and physiological wellbeing is likely to be compromised.

positivity ratio Dr Fredrickson reports that from her United States-based survey data, only around 20% of people meet the 3:1 ratio threshold. This aligns with population studies of mental health and wellbeing in the United States and the United Kingdom which also suggest only about 20% of the population has optimal mental wellbeing. You can complete the short scientifically validated test to find out your own emotional ratio on the website associated with Fredrickson’s book Positivity at positivityratio.com/single.php. Most of us will probably benefit from increasing positive emotions in our lives. But introverts and more quiet thoughtful people please take note. Positive emotions are not all about being extroverted and screaming with laughter. Many positive emotions are quiet ones such as serenity, awe, gratitude, inspiration and hope. When thinking about increasing positive emotions it’s easy to mistake satisfying the pleasurable effects of the brain’s reward system for increasing our longer term wellbeing. Advertising and popular culture panders to this system and wellbeing myths, and tells us that increased comfort, more possessions, larger houses (to put all the possessions in), looking more attractive, winning lotto, thrill seeking – and quick psychological boosts like alcohol, sugar, fat and carbohydrate related foods, are the best things to increase our happiness. While these things won’t cause harm in moderation, wellbeing research does not support them as effective in increasing our positive emotions and wellbeing.

Economics Foundation. The Five Ways summarised as verbs are: ▪ Connect ▪ Give ▪ Take Notice ▪ Keep Learning ▪ Be Active The Five Ways are promoted by the Mental Health Foundation of New Zealand as a key strategy for increasing good mental health and resilience. Details are at mentalhealth.org.nz/ page/1180-5-ways-to-wellbeing. Alternatively, for the more ambitious, the UK based website actionforhappiness.org has ten keys to happier living, also based on good scientific evidence. Hugh Norriss is the Director of Policy and Development at the Mental Health

Foundation of New Zealand, and also the Director of Working Well. Working Well is the Mental Health Foundation’s programme to support workplaces to be mentally healthy. Before joining the Mental Health Foundation in 2009, he has held a range of leadership positions in mental health services, including Group Manager of Mental Health Services and Mental Health Planning and Funding Manager at Capital Coast Health 2005-2009 and Chief Executive of Wellink Trust, 1997-2005. Having worked in mental health services for 12 years, Mr Norriss joined the Mental Health Foundation to pursue public policy and information work in advocating for better ways to protect and promote the mental health of all New Zealanders, including in the workplace.

HELP IS AT HAND To provide a service for lawyers seeking independent help with an issue in their life, the New Zealand Law Society has signed an agreement with Lifeline Aotearoa. Lifeline offers a discounted rate to New Zealand Law Society members and their families. Lifeline’s team of qualified professional counsellors is experienced in working with clients across a broad range of issues. They can help with day to day issues such as stress, anxiety, burnout, depression, relationship issues, grief, trauma and addiction.

The five ways To increase your positive emotions and psychological wellbeing from an evidence-based perspective, consider The Five Ways to Wellbeing, which are the result of extensive research by the United Kingdom Governmentsponsored Foresight Commission and the independent think tank, the New

Phone lifeline Aotearoa: (09) 909 8750 email: face2face@lifeline.org.nz

Supporting lawyers since 2009

my.lawsociety.org.nz/practising-well

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EFFECTIvE pRACTICE Meanwhile, on the internet… RIChARD SuSSkInD’S lATEST exploration of the destiny of lawyers says lawyers and legal institutions will change more radically over the next two decades than over the past two centuries. Tomorrow’s Lawyers – An Introduction to your Future sees a future of virtual courts (with virtual hearings and online dispute resolution), internet-based global legal businesses, online document production, commoditised legal services and internet-based simulated practice. While the physical structures of New Zealand legal practice seem to be changing little, the signs of the revolution predicted by commentators such as Professor Susskind are there inside your computer, or phone, or tablet. Free from physical restrictions such as the need to maintain an office – or courthouse – and to provide information in a hardcopy format, the internet is being used to take the practice of law in an ever-growing range of new and exciting directions. Change is all around and what is an interesting possibility today will often be reality tomorrow. A February 2013 survey by LexisNexis of firms in NZ LAW Ltd found that the use of mobile devices is now a well-established part of a lawyer’s work. All respondents were using mobile devices to submit information, 63% used them to search for legal information and 58% used them to capture their own notes. Five years ago the results would have been quite different. Europe’s Parliament recently voted to set new rules for Alternative and Online Dispute Resolution (ADR/ODR). From 2015 onwards, European consumers will be able to settle any dispute with an EU-based trader without going to court. An EU-wide internet service will handle all consumer disputes arising from online transactions. This is a major

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cross-border initiative which will create an online way of resolving millions of disputes. And where do lawyers fit in? Check out the website of Axiom Global Inc (www.axiomlaw.com), a law firm which employs over 1,000 people and claims almost half of the Fortune 100 as its clients. It does the “bread-and-butter” work for them at relatively low fees by eliminating typical big firm overheads through innovative use of technology and working from “delivery centers”. Axiom’s exciting website is really just a novel way of publicising a big firm which has adopted a successful new way of working. As shown by the following examples, the delivery of cyberspace legal services is well established but evolving rapidly. While many of the sites still rely on existing law firms, the process for providing a legal solution takes place online. As with all business, the key ingredients are facilitating connection of the parties by providing reasons for visiting the website. The New Zealand Law Society does not endorse or recommend any of the sites listed below.

Conveyancing.co.nz Site owner Online Conveyancing Ltd is owned by Auckland-based conveyancing software provider KeyTrack. The intention is to bring together anyone with an interest in conveyancing and property purchase. Lawyers may obtain a free listing, but can pay for a “featured listing” which entitles them to receive conveyancing quote requests from home buyers and sellers.

Do-it-yourself-wills.co.nz An Australian company sells its plain English wills adapted for New Zealand law and priced in New Zealand dollars. For $19.95 for a standard will or $37 for two mirror wills, anyone can construct

“the best looking will on the web” and it will arrive within minutes by email, ready for signing. Testators can “save a fortune in legal fees” – as long as they manage the signing and witnessing process and don’t need advice on any of the tricky things such as establishing trusts.

Findlaw.co.nz Not a transactional site, but the original Findlaw in the United States was one of the trailblazers for the formula of providing legal information on a wide range of subjects (to draw consumers) and linking it with a means of engaging an appropriate lawyer (which is how Findlaw makes its money). New Zealand’s Thomson Reuters-owned version offers the opportunity for the 1,500 firms listed to pay $495/year for an “enhanced listing” which allows them to stand out from the crowd.

Justanswer.com Enter this URL and you’ll land on a page which says: “Ask a New Zealand Law Question, get an answer ASAP!” and then advises “Solicitors are online now”. Type in a question and a price will pop up. For example “What do I need to do to set up a family trust?” received the response that a solicitor wanted to answer the question and it would cost NZ$47 for the answer (“if satisfied”). This is an international site, but appears to use New Zealand lawyers as advisers.

Lawguru.com “Become a LawGuru Attorney … and enjoy added revenue, business growth, free advertising, and attract new clients”. This site is organised around the ability to ask a free legal question, which is answered by one of the attorneys registered. Set up in 1996 by two Californian lawyers, this is one of

the most enduring sites and has grown and evolved with the internet. Special Legal Forms and Law Student sections drive traffic, and a league table shows which attorneys have provided most answers each month.

Lawlive.co.nz Register and create a legal document “within minutes” – and without a lawyer. After (free) registration the user fills in a form with specific details for employment, commercial and corporate contracts and documents. Information is provided on the charge and the time it will take to build the document. A final document – output in MS Word – is emailed to the user. The terms and conditions refer to Australian legislation and the site is owned by LawLive International Pty Ltd.

ment, aimed at bringing clients and lawyers together. The theory is simple: (registered) clients post information about their legal need and (registered) lawyers tender for the right to the work. Other features include a “court diary” so clients can see if their lawyer will be free on a particular date, and the ability to look at feedback by past clients. In mid-April there appeared to be four New Zealand lawyers or law firms registered and available.

legalbrief.ly This is currently being developed and available only in beta. It will let lawyers, legal researchers and others upload and sell copies of their research. They keep the copyright and set the price. Canadian company Shared Solutions Inc will launch this new site shortly.

Lawpath.com.au “Speak to an experienced lawyer for $29”. While this newly-launched Australian site states that members can speak to lawyers around the world, it seems very Australia-focused at the moment. The theory is that clients ask a legal question on the website, Lawpath analyses it and connects the client with “an experienced lawyer” who will speak directly with the client by phone for up to 30 minutes. Clients can pay for a one-off consultation or subscribe and ask multiple questions each month.

A n yo n e r u n n i n g a website on which they h o l d t h e m s e lv e s o u t t o b e a l aw y e r a n d offer legal advice in New Zealand, must hold a practising c e r t i f i c at e a n d b e entitled to practise on their own account

Lawplainandsimple.com

Netlaw.co.nz

A new English site which provides plain English guides to the law on a wide range of matters, and then directs you to an appropriate local lawyer. The same old formula, but this one focuses on making things “plain and simple” so that visitors can get the most out of their next visit to a lawyer.

Auckland-based Netlaw Ltd claims this site provides information and documents on over 550 topics. A 90-day subscription costs $45, allowing members to access and use all the information as many times as they like over that period.

Lawspot.org.nz

A very English development which is similar in aim to conveyancing.co.nz. This new site aims to bring together solicitors, real estate agents, mortgage advisers and other referrers of business to interact and cut out third party costs.

While most of the “guide to the law” sites focus on driving business to lawyers who register, this site was set up in Wellington at the end of 2012 as a not-for-profit service. Users post a question, which is then answered by volunteer lawyers and screened by Community Law Wellington and Hutt Valley.

Lawworldconnect.com This is an interesting new develop-

Springboard.net

Thisismybarrister.com Another English site, with a go-live date of 10 April 2013, which has the key objective of enabling the flow of clients to barristers.

Worldlawdirect.com This large and well-established US-based organisation claims to have lawyers in 26 countries (New Zealand appears to be absent). For US$9.95 you will receive an assessment of your legal rights and options within 48 hours to a legal question. “When you use WORLDLawDirect, you don’t have to make a trip into a law office, you receive information according to your schedule, and you save valuable time.”

But is it legal? The New Zealand Law Society has published information on the requirements for offering legal services on the internet (for the full details, see our Practice Briefing, Requirements for offering legal services on the internet). While anyone in New Zealand can offer legal information, only lawyers can provide services in the reserved areas of law as described in the Lawyers and Conveyancers Act 2006. Anyone running a website on which they hold themselves out to be a lawyer and offer legal advice in New Zealand, must hold a practising certificate and be entitled to practise on their own account. Clients seeking legal advice through a website are entitled to certain information about the lawyer conducting the work for them. This includes written information about fees, professional indemnity arrangements, the Lawyers’ Fidelity Fund and the lawyer’s complaint process. The client must also be informed of the name and status of the person who will have overall responsibility for the work and be given further information as set out in Rule 3.5 of the Rules of Conduct and Client Care. If a website requires payment in advance of providing services, this money must be paid into a lawyer’s trust account. This means the lawyer running the website must be trust account qualified and comply with the legislation regarding trust accounting. While there is no specific requirement for a New Zealand lawyer to maintain a physical address, they must have their records available to enable the Law Society to organise inspectors if a trust account is being operated and in the case of complaints.

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LAW REFORM REpORT State sector delegation power changes raise concerns PRoPoSAlS To AmEnD ThE State Sector Act to expand the delegation powers of departmental chief executives raise three concerns, the New Zealand Law Society says. The Law Society presented its submission on the State Sector and Public Finance Reform Bill to Parliament’s Public and Administrative Law Committee on 20 March. The bill proposes to extend the power of departmental chief executives to allow delegation to contractors and, with the consent of the responsible minister, to people outside the public sector. The Law Society says it understands the need for the new provisions. There is a widespread practice of contractors acting in reasonably senior roles within departments, and the proposal is also probably to provide greater flexibility in the public sector. The Law Society told the select committee that it is important to ensure

that the quality of administrative decision-making is not affected and that, if a decision is incorrectly made, the ability of affected parties to seek recourse is not affected. “From this perspective, the proposal raises three concerns,” it says. “First, the Law Society is concerned that contractors and persons outside the public sector will not be subject to the same general obligations and standards as employees of departments. In particular, the word ‘contractor’ is not defined.” A second concern is that departments could, in contractual arrangements with a contractor or person outside the state sector, agree to exclude the potential liability of a contractor to the department and to indemnify a contractor for all liability to third parties. The Law Society says if departments agreed to exclude liability or provide an indemnity, contractors and people outside the state sector to whom

delegations are made could end up with different incentives than employees. This could result in them not taking as much care in their decisions. The third concern is that third parties may not know that a decision is being made by a contractor or a person outside the state sector under delegation. “The normal expectation is that decisions will be made either by the person or body on whom the power of decision is conferred or a member of the Public Service under delegation,” the Law Society says. The Law Society’s submission also points to potential issues with the proposed Government Workforce Policy Orders introduced by the Bill. It recommends that proposals as to the liability of chief executives and employees should be put on hold until the Law Commission review of the Crown Proceedings Act is completed.

Resource Management Reform Bill needs changes to achieve resource management ‘streamlining’ ThE nEW ZEAlAnD lAW Society believes amendments are necessary for the Resource Management Reform Bill to achieve the government’s outlined objectives. The stated purpose of the Bill is to streamline the resource consent regime and improve the Resource Management Act’s workability. The Law Society presented its submission on the Bill to the Local Government and Environment Select Committee on 21 March. “The Law Society is aware of concern within some sectors of the community that resource consent processes in

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particular take too long and are too expensive,” Law Society Environmental Law Committee convenor Margo Perpick says. In its submission, the Law Society recommends amendments to the Bill that would help to streamline the resource consent process “in the sense of making the resource consent process faster and more efficient, while improving (or at least not sacrificing) decision-making quality”. The Law Society is concerned the Bill’s proposed timeframes may reduce the quality of information presented to hearings panels.

“If the proposed timeframes are adhered to strictly then Consent Hearings Committees are likely to be faced with reports and evidence from parties that are quite unsatisfactory in terms of accuracy and quality,” Ms Perpick says. At present the Bill proposes to extend the time limit for notification from 10 to 20 working days while reducing the time limit within which a hearing on a non-notified application must commence, from 25 working days following the closing date for submissions to 35 working days after the date of the Continued on following page ...

L AW REFORM REpORT

Mandatory IPONZ system use raises issues mAkIng uSE oF ThE Commissioner of Trade Mark’s online case management system mandatory when communicating with the Intellectual Property Office of New Zealand (IPONZ) raises a material risk of injustice, the New Zealand Law Society says. Commenting on draft Case Management Facility Guidelines circulated by IPONZ, the Law Society says the risk arises in time-critical situations when the case management system does not allow other forms of communications. One of the Trade Marks Regulations 2003 requires exclusive use of the online case management system when communicating with IPONZ. Exceptions are allowed but only if the commissioner is satisfied that a person cannot access the case management facility because of any “exceptional circumstances” beyond the person’s control. The Law Society says there are a number of circumstances when mandatory use of the online system may present real problems. These include where internet access

is limited or the platform fails to work or where applicants are technologically inexperienced or lack capability due to age or disability. However, the guidelines restrict the definition of “exceptional circumstances” to matters such as natural disasters, fire and widespread electrical or network failure. “There are a range of circumstances outside of these that could be reasonably construed to fall within the definition of ‘exceptional circumstances’ including specific or local electrical failure and technological failure,” the Law Society says. The Law Society’s comments note that IPONZ has clearly made out the economic justification for moving towards using online systems. However, it says a flexible approach towards that goal remains paramount to ensuring access to justice for all potential trade mark applicants. The Law Society recommends that the words “exceptional circumstances” be replaced with “genuine and reasonable circumstances”.

Continued from previous page ...

The provisions in the Bill will remove the full right of appeal to the Environment Court for a submitter on a hearings panel decision, while the council is given the ability to reject the panel’s recommendations, even though it would not have heard the evidence presented to the panel, the Law Society submission says. “This would generally be considered to be a serious breach of the rules of natural justice,” Ms Perpick says.

application was first lodged with the consent authority. “This will shorten the length of time affected parties have to prepare evidence and presents a considerable risk that decisions will be made incorrectly, leaving the parties to resort to the appeal process to correct such decisions with the presentation of accurate and good quality evidence,” Ms Perpick says. “This would not be consistent with the aim of the Bill to improve the quality of local decision-making.” The Law Society is also concerned that the new appeal processes in the Bill could impact on the right to a fair hearing. “The structure of the new appeal process is a significant departure from the current way in which appeal rights in relation to resource management issues are dealt with,” Ms Perpick says.

Recent submissions The Law Society recently filed submissions on: ▪ Crown Prosecutions, draft Regulations 2013; ▪ Building Seismic Performance: Proposals to improve the New Zealand earthquake-prone building system; ▪ Companies and Limited Partnerships Amendment Bill, further consultation on clause 4 drafting options: Criminalisation of Serious Breaches of Certain Directors’ Duties; ▪ Trade Marks Amendment Regulations (regulation 8): guideline on case management facility; ▪ Law Commission Review of the Law of Trusts, 6th issues paper Preferred approach; and ▪ Improving our resource management system, MFE discussion paper. The Law Society recently addressed the following select committees: ▪ the Finance and Expenditure Committee on 20 March on the State Sector and Public Finance Reform Bill; ▪ the Local Government and Environment Committee on 21 March on the Resource Management Reform Bill; and ▪ the Local Government and Environment Committee on 11 April on the Conservation (Natural Heritage Protection) Bill. The submissions are available at www.lawsociety.org.nz/ publications_and_submissions/ submissions.

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

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L aw Reform

SOP sinks mining protesters By Nikki Pender and Pam McMillan The Government appears to be developing a practice of using postSelect Committee supplementary order papers (SOPs) as a portal through which to rush controversial law changes. In February this year, the Corrections Minister used an unrelated Bill as the means of resuscitating her gasping prison smoking policy (see Bill validates prison smoking ban, LawTalk 814, 15 March 2013). And this month, the Minister of Energy and Resources, Simon Bridges, has leveraged off the nearly-enacted Crown Minerals (Permitting and Crown Land) Bill (Crown Minerals Bill) to introduce new maritime offences aimed at curbing offshore protests. This article considers the ramifications of such fast-track lawmaking in the context of the latter example.

SOP 205 On 9 April, Mr Bridges tabled SOP 205 as an amendment to the Crown Minerals Bill, which itself amends the Crown Minerals Act 1991. SOP 205 inserts new ss101A to 101C which would, among other things: ▪▪ create a new offence of intentional damage or interference with mining structures, ships or activities in offshore areas within the territorial sea or exclusive economic zone (punishable by maximum 12 months imprisonment or fine of $50,000 for individuals or maximum fine of $100,000 for body corporates); ▪▪ create a new strict liability offence for any ship or person entering into a specified non-interference zone without reasonable excuse (punishable by maximum $10,000 fine); and ▪▪ give the Police and Defence Force powers to detain and arrest, board ships or otherwise prevent people and ships from entering the noninterference zone, without warrant. During the Committee stage on 10 April, SOP 205 was approved 61-59. Before getting a third and final reading, the bill was divided into five

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amendment bills: the Crown Minerals Amendment Bill, Conservation Amendment Bill (no 2), Continental Shelf Amendment Bill, Reserves Amendment Bill, and Wildlife Amendment Bill. All five bills were read for a third time on 16 April and were narrowly approved by 61-60. The minister justified the changes in SOP 205 as necessary to plug gaps in the law highlighted by a recent case, R v Teddy District Court, Tauranga CRI-2011-070-002669 and Police v Elvis Teddy [2013] NZHC 432. To recap, Mr Teddy had been charged under s65(1)(a) of the Maritime Transport Act 1994 with operating a vessel in a manner causing unnecessary risk after he sailed his fishing boat within 20 metres of a vessel in the Raukumara Basin. The vessel was operated by Petrobras, a foreign mining company which had a permit to prospect for oil in the area. The incident occurred outside New Zealand’s 12-mile limit. The District Court dismissed the charges, finding no extra-territorial jurisdiction, but the High Court disagreed. Justice Woolford found that as the purpose of the Maritime Transport Act was maritime regulation and as its objective was to ensure that New Zealand met relevant international obligations, the legislation had to be read in the context of the international laws of the sea – including the principle of flag-State jurisdiction. The Maritime Transport Act covered New Zealand ships on the high seas and by necessary implication, Mr Terry could be charged with an offence under s65(1)(a). A group opposed to SOP 205, including environmental and human rights groups, Sir Geoffrey Palmer QC, Peter Williams QC, Dame Anne Salmond and Sir Ngatata Love, has released a legal opinion from international law specialist Duncan Currie, who concluded that the proposed amendments breached New Zealand’s international law obligations and was inconsistent with the New Zealand Bill of Rights Act 1990 (NZBORA). The legal opinion is available at www.greenpeace.org/new-

zealand/en/press/Government-Bid-toCriminalise-Sea-Protests-Slammed/. It is not our intention to delve into the merits of the policy underpinning SOP 205 nor do we offer a critique of the Currie opinion. Our concern is that by introducing the changes at a late stage and by way of SOP, the Government has bypassed important quality control checks which aim to produce good laws and ensure compliance with fundamental legal principles. What the Currie opinion shows is that it is at least arguable that the new offences engage important legal principles and that had they been introduced in a new bill, these issues would have been more closely scrutinised by officials, MPs and the general public.

Short-cutting quality controls The introduction of significant law changes by way of SOP bypasses the normal vetting processes and increases the risk of sloppy lawmaking. Government legislation is subject to comprehensive vetting before being introduced. These processes are set out in the Standing Orders of the House of Representatives, the Cabinet Manual 2008 and related Guide to Cabinet and Cabinet Committee Processes (CabGuide) and in guidelines produced by the independent Legislation Advisory Committee (LAC). There is particularly high sensitivity afforded to new laws which may impinge on fundamental legal principles including rights and freedoms protected by the NZBORA; or international law obligations. Before bills enter the Government’s legislative programme, ministers must forewarn of any implications for these fundamental legal principles (Cabinet Manual, para 7.60). The Cabinet Legislation Committee then requires confirmation that these principles have been complied with before it will approve a bill for introduction (Cabinet Manual, para 7.61). The Attorney-General is required to report independently on any inconsistencies

L aw Reform with the NZBORA (s7 NZBORA; SO 262; Cabinet Manual, para 7.62). The CabGuide also requires that most prospective laws be subjected to a “robust regulatory impact assessment” – an evidence-based approach which weighs up potential costs and benefits. Before being passed, bills are debated and voted on in Parliament during three readings, and a committee stage. After the first reading, most bills are referred to a select committee for further scrutiny and, importantly, public consultation.

Guarding against SOP misuse There are some safeguards against the risk of controversial laws being slipped through Parliament’s back door by way of SOP: ▪▪ the Speakers’ Rulings provide that an amendment must be within the scope of purview of the bill, as defined by the contents as originally introduced (Chapter 5, no. 3: Legislative Procedures); ▪▪ the Cabinet Manual requires all SOPs that are outside the scope of a bill or that make substantive changes to a bill to be first approved by the Cabinet Legislation Committee (para 7.72); ▪▪ the LAC guidelines also warn officials to be alert for the same issues that may arise with an introductory bill, including consistency with legal principles like the NZBORA (Chapter 4); ▪▪ the Attorney-General, who is Parliament’s watchdog on NZBORA issues is obliged under s7 NZBORA to report any inconsistencies to the House when a bill is introduced; while there is no corresponding duty to report inconsistencies in subsequent amendments, there is no impediment preventing the AG from doing so either; and ▪▪ where an SOP contains amendments to a bill that are out of scope, the House technically needs to issue an instruction before the committee can consider it (LAC Guidelines chapter 17.3.2). It is not obvious that these safeguards have been effective here. When SOP 205 was being debated, the current Attorney-General, Chris Finlayson QC, responded in part to the Duncan Currie opinion. He disagreed

that the new offence of damaging or interfering with an offshore ship or structure had civil rights implications, but he did not proffer any opinion on the offence of entering a non-interference zone nor measure the law against international law obligations. When asked by an opposition MP to table a legal opinion, the Attorney-General declined. Another opposition MP sought leave to have the Crown Minerals Bill resubmitted to the Select Committee for public consultation on SOP 205, but was unsuccessful. It does not appear that an instruction to the House was considered necessary in this case.

the new offences a r e n o t l i k e ly t o s i t c o m f o r ta b ly i n t h e i r n o m i n at e d s tat u t o ry environment and i n t e r p r e tat i o n o f t h e l aw m ay produce perverse outcomes

Legislative mismatch The LAC Guidelines require legislative drafters to “consider [the proposed new law’s] place within the wider law and the principles by which it will be interpreted” Had the new provisions in SOP 205 been introduced as a standalone bill it is unlikely that they would have ended up as part of the Crown Minerals Act. That Act, as its title suggests, primarily

regulates mining operations on Crown land, whether onshore or off. If, as the Minister has explained, the changes arise from the Teddy case, then the new provisions more fittingly belong in the Maritime Transport Act. The Crown Minerals and Maritime Transport Acts are not interdependent and are administered by different departments (MOBIE and NZTA). The Acts will not necessarily be interpreted the same way. For example, the courts may find it difficult to read the international laws of the sea into the Crown Minerals Act in the way the High Court did in the Teddy case. In short, the new offences are not likely to sit comfortably in their nominated statutory environment and interpretation of the law may produce perverse outcomes.

Conclusion This is not the first Government to pass controversial laws by way of a hasty SOP insertion. Last decade, the Court of Appeal was less than impressed with a late change to criminal legislation which created retrospective liability and penalties for home invaders (R v Poumako [2000] 2 NZLR 695 ; R v Pora [2001] NZLR 37). After circumventing Parliament’s legislative quality control processes, this Government cannot later complain if the courts feel compelled to slap the new protester law with (to paraphrase the late Lord Cooke of Thorndon in Temese v Police (1992) 9 CRNZ 425) an intrusive or gratuitously critical advisory opinion, aka a declaration of inconsistency. Nikki Pender is a consultant and Pam McMillan is a senior solicitor at Franks & Ogilvie, a Wellington public and commercial law firm.

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Tomorrow’s Lawyers – An Introduction To Your Future BY RICHARD SUSSKIND Professor Susskind’s vision of the future is one of virtual courts, internet-based global legal businesses, online document production, commoditised service, legal process outsourcing, and web-based simulated practice. The world of law is changing fast and Susskind is one of the most influential and prescient thinkers on where it is going. Oxford University Press, January 2013, 978-0-199668-06-9, paperback, $26.99 (GST included, p&h excluded).

Brookers A to Z Of Legal Terms REViEWEd By GEoFF AdlAm Question: “Otitapu Pa”, “itinerant aircraft”, “arguable case” and “it is necessary”. What do they have in common? Answer: They have all been legally defined, either by current New Zealand legislation or by a New Zealand court. As such they qualify for inclusion in the first New Zealand e-book from Thomson Reuters – along with a claimed 24,000 other words and phrases. Anyone wanting to view it must first download the Thomson Reuters “ProView” app. This is available free and can be downloaded from Google Play, iTunes store or the Thomson Reuters website. You also need to set up a “OnePass” account. I went from firing up my Samsung Galaxy tablet to setting up a OnePass account, downloading ProView and viewing the title page of A to Z of Legal Terms in just under 20 minutes – and five minutes of this was me wrestling with Samsung’s “helpful” predictive text. The whole setting up process was easy and worked without any problems. Navigating around within the ProView system is easy. You can browse, filter (to locate any term containing a particular word) or search. Users can also add their own notes and annotations easily, copy and paste text and fiddle around with font, font size and line spacing. I tried all of these and found them intuitive and easy to use. The e-book itself is not available in hard copy. Thomson Reuters says this is because it would take up at least three “solid” volumes. With the content sitting in cyberspace, it was hard to get an idea of size. I’ll take Thomson Reuters’ word that there are over 24,000 terms: after about a minute of scrolling down through the list of all the terms, I had arrived at “Adjoins”. Some terms (such as “lake” and “river”) have many entries and these are listed alphabetically by source. Looking at interesting variations in the wording of some legislation terms, the e-book could be a useful addition to the library of legislation drafters. The text displays clearly and simply, using Thomson Reuters’ own

Knowledge font. Each entry contains the particular term and lists where it has been defined under the headings “Legislation” and/or “Case Law” (if applicable). Underneath each are references to where the term is used – so “Edition” is followed by the simple reference “Copyright Act 1994; Part 3, s44(7)”. When the term is defined in a case, the reference is to the case name and citation: “receipts” is followed by

these Quibbles Aside, this e-book is A very user friendly And useful new legAl reseArch tool for new ZeAlAnd lAwyers, Allowing the user to Quickly locAte defined legAl terms.

judicially considered are included from 12 law report series (NZLR from 1998) and also unreported cases. The User Information states that whether or not a judicially considered legal term has been included is an editorial decision “and is considered on a case-by-case basis”. These quibbles aside, this e-book is a very user-friendly and useful new legal research tool for New Zealand lawyers, allowing the user to quickly locate defined legal terms.

BROOKERS A TO Z OF LEGAL TERMS Brookers Ltd, April 2013, 978-0Court of Appeal , R v Pedersen [1995] 2 864727-89-3, e-book, $120.00 (GST NZLR 386; (1995) 13 CRNZ 34. excluded). This is one of the catches: if I was a subscriber to Brookers Online, I could Geoff Adlam is the New Zealand Law then click on the provided reference Society Communications Manager. and view the detail behind it. If you don’t have Brookers Online, you’ve got another research task Keep in touch with the ahead of you, but markets and investment you’ve still got a views wherever you are very handy tool for To download our FREE Forsyth Barr iPhone App, researching. scan this QR code or search ‘Forsyth Barr’ in the App Store, and: Only legal terms ● Create and monitor a watch in current legislalist of your favourite securities ● Access Forsyth Barr’s tion are included – investment view so if the legislation ● Follow market news you’re interested in has been repealed, you’re out of luck. Legal terms Disclosure Statements are available on request and free of charge. which have been

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IN-HOUSE Swinging doors – the increasing ability to change ﬁelds By RAcHAEl BREckon A JoB In-houSE no longER means closing the door to firm life. In fact these days lawyers are finding they can move seamlessly between the two. “If you put a career plan in place and work out what you want to do then [your career] is up to you,” Duncan Cotterill associate Sarah Gillies says. Ms Gillies speaks from personal experience. She returned to firm life this year after eight years working as an in-house lawyer for Gen-i and Telecom. She credits this approach to career development training she undertook during her seven years working inhouse for Telecom. When she left Minter Ellison Rudd Watts in 2005 to work for Telecom, during the peak of regulatory changes, Ms Gillies admits she wasn’t certain if it would mean an end to her career as a firm-based lawyer. “To be honest, I didn’t know much about in-house at the time, but the opportunity at Telecom was such an exciting one that I was interested enough to take it.” The decision to move back to a firm-based role was predominantly due to her desire to return to advising a range of industries, but she notes it has been interesting to again be the “core business” instead of supporting the core business. “In-house you are close to the business. In a firm you are the business. There is quite a massive distinction,” Ms Gillies says. While she says it’s not that people treat you differently when you work in a support function, the focus is different and in each role you develop different skills. “Certainly my experience of being in-house was you really get to know the business better,” she says. “You get exposed to the management information and that is a great oppor-

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lawyers take the opportunity to work tunity. If you are a proactive person you in-house. “It’s a great way to build your will take that opportunity. It is harder legal skills, develop leadership skills to get [management training] from a and learn about business, and it can firm. If you are driven enough to take help you understand your clients better, [in-house opportunities] they can really whether you choose to stay in-house or take you places.” return to private practice.” In-house she had the opportunity to Sarah is the director of the 2013 hone her “soft skills” which, Ms Gillies CLANZ Conference, a role she took up says, she “wouldn’t have thought of while working in-house and one she doing if [she] had just stayed in a firm”. will continue until the conference on “You learn so much observing other May 16 and 17. people’s management and leadership For more information on this year’s styles.” CLANZ Conference, see “Section news” Asked if a reason for taking an on page 25. in-house position was because it was a way to work nine to five, Ms Gillies says in her experience in-house lawyers work just as hard as lawyers in firms do. “Overall, in terms of work-life balance, you can fail at that inhouse just as much as you can fail at that in a firm. “ As I begin this next phase, I cannot help but think “I don’t really that without you all and what we achieved last year, know any in-house I would not be here.” lawyers that did just work light CollEGE of lAW PlSC STudENT hours. All the law firms that worked The College of Law specialises in practical legal training. with us saw how Developed and taught by experienced lawyers, we offer the we worked. For a best and most flexible Professional Legal Studies courses. company to be at Make a real contribution to your career or business. the stage where they need an in-house lawyer, it Professional legal studies will mean there is a lot of work.” Call 0800 894 172 or Overall, Ms Gilvisit collaw.ac.nz/plsc Email enquiries@collaw.ac.nz lies says that she would thoroughly recommend

“WHAT A GREAT EXPERIENCE”

Carlyle Rogers

WHAT’S NEW? Forsyth Barr iPhone app FoRSyTh BARR SAyS ITS Investment Insights iPhone app has been tracking well since it was released in December last year. The Investment Insights app provides a way for people to monitor movements in securities as well as follow market news. The app also contains Forsyth Barr’s investment view of over 60 NZX shares. The app is free and available to everyone through the Apple store and works on any iPhone that has iOS 5.0 or greater. Forsyth Barr head of product development and marketing Trish Oakley says the creation of the app follows a re-design of the company’s website and reflects the firm’s commitment to the online space. “Carefully designed, the outcome is an intuitive interface for the investor

with an iPad version due to be released later this year,” she says. Forsyth Barr’s managing director Neil Paviour-Smith says the app is designed to ensure clients and its public can be connected to key information on the go. “As we know, context matters; and in addition to market pricing and news, we have added in our investment view for all to see and detailed research for clients of Forsyth Barr.” Research content is generated by Forsyth Barr’s research department that regularly publishes reports on over 60 NZX listed companies plus prevailing research on Australian and global companies, investment strategy and fixed interest issues. For more information on the iPhone app visit www.forsythbarr.co.nz/ investment-with-us/iphoneapp/.

Medical reports and prisoners By JUdiTH ABlETT-kERR Qc IT mAy WEll ComE AS A surprise to some practitioners to learn that specialist reports, such as medical reports on prisoners, that they or the court have diligently obtained to assist in the sentencing process will not automatically accompany that prisoner to the correctional facility charged with managing and ensuring the safety of that individual. Lack of information of the medical and special needs of a prisoner may well put that prisoner or others at risk or inhibit effective rehabilitative measures. But unless the sentencing judge specifically directs, the specialist/ medical reports will not accompany the sentencing notes or warrant for imprisonment. The issue has been the subject of

some considerable discussion between the judiciary, the profession and the Department of Corrections at the Criminal Practice Committee. The Chief High Court Judge and the Chief District Court Judge have alerted the judiciary to consider in every case whether the management and/or rehabilitation of the offender will be enhanced by the provision of reports to Corrections. Counsel are requested to likewise give careful consideration to the same issues and, providing they have the informed consent of their client, draw the judge’s attention to their ability to direct provision of the reports. While a judge may order provision of any court-ordered report without requiring the consent of the prisoner,

such is not the situation with reports provided through Judith Ablett-Kerr QC – New Zealand counsel. Law Society representative on the Criminal Practice Committee When discussing the issue with your client I suggest it would be appropriate to take written instructions. The Corrections Department has confirmed that it has a procedure in place to receive clinical information from the courts directly, and to manage it appropriately, to ensure the privacy of prisoner health records. However at this stage the details of how that is to occur are not to hand.

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Advising the profession

Helping with intellectual impairment Lawyers are likely to have clients who have a son or daughter with an intellectual impairment for whom they want to make provision after they die. The Personal Advocacy Trust Inc (PAT) can help in two important ways – providing an advocate for the person after the final parent dies and administering or being trustees in a discretionary trust set up for their benefit. PAT was set up in 1967 by parents of people with an intellectual disability who were concerned about what will happen to their son or daughter after they die. It is financed entirely by the income earned on fees paid by parents so that it can guarantee independence from any service providers or the government. The PAT is governed by a board, which includes people with a wide range of relevant service industry and financial experience and a judge nominated by the New Zealand Law Society. The trust’s reason for being is to ensure that its “members” live as full a life as possible through the advocacy and support PAT provides. Its work can be seen like an insurance policy which provides peace

of mind for parents knowing that someone will provide the eyes and ears for their disabled son or daughter’s wellbeing after they are gone or become incapable.

How it works Fees are paid on a scale according to the parents’ ages at time of payment. The older they are, the higher the fee as there will be less time to earn income on the amount paid. Contact is maintained with the family to ensure the PAT becomes aware of the time at which it should arrange the appointment of a personal advocate, who will work one-on-one with the person with an intellectual disability for the rest of their life. Personal advocates see to the best interests of the person with the disability, providing advocacy when needed. Advocates can request remedial responses in all aspects of the person’s life – finances, an area of particular vulnerability; health, where advocates can notice changes that those who see the person daily may not observe; relationships, including with siblings; day activities; housing; arranging needs assessments to determine entitlements

and so on. Personal advocates are trained, paid and supervised by PAT’s 26 district advisers whose work is overseen by 3 regional co-ordinators and the national director.

Discretionary trusts A discretionary trust can be a very valuable asset for a person otherwise relying solely on an invalid benefit. A trust can pay for items such as hearing aids, clothing, furniture, elective surgery or even holidays and other creature comforts which might otherwise not be made available. Personal advocates are very well placed to recommend such expenditure to trustees. PAT can administer discretionary trusts for members or act as an advisory trustee where the trust is held by solicitors, siblings or others. All decisions on expenditure are overseen by the PAT Board. For more information, contact the national office of the Personal Advocacy Trust, PO Box 30 469, Lower Hutt 5040, advocacy@patrust.org.nz or phone (04) 385 9175 or (04) 569 2708 after hours.

New postgraduate scholarship to Oxford A new scholarship to support postgraduate study in law at Oxford University has been announced – the FMB Reynolds Scholarship in Law to Oxford. It is named for Emeritus Professor Francis Reynolds, longstanding editor of the Law Quarterly Review, and author of books on a range of commercial law subjects. Professor Reynolds has many links to New Zealand. He has taught a number of times at Auckland University across several decades. Over his 42 years on the Law Faculty at Oxford he was a generous host to students and visiting

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lawyers from New Zealand, particularly at his College, Worcester College. The scholarship initiative came from Professor Peter Watts, of Auckland University, who in 2010 succeeded Professor Reynolds as editor of Bowstead & Reynolds on Agency. The project has received the generous support of many Oxford alumni in New Zealand and abroad. The initial annual value of the scholarship is expected to be NZ$8,000, tenable for one year. The scholarship is open to LLB graduates from any New Zealand law school who are New Zealand citizens or permanent residents, and is available

for any programme at Oxford that involves studying law. It is administered by Universities New Zealand. Applicants must have applied for a place at Oxford at the time of application, but need not at that stage have received an offer of a place. Applications for this year close on 30 April. In succeeding years, the closing date will be 28 February. Details of the criteria and selection process can be accessed at www.universitiesnz.ac.nz/ scholarships/fmbreynolds.

SECTION NEWS nzls esT 1869

ThE FAmIly lAW SECTIon IS encouraged by Justice Minister Judith Collins’s indication that there will be changes to some of the proposals contained in the Family Court Proceedings Reform Bill. In a New Zealand Herald article published on 30 March, Minister Collins said her officials had listened to concerns expressed and that she would recommend changes. The revised bill is likely to allow lawyers to act earlier in the process and allow for more involvement by lawyers for children. FLS chair Garry Collin congratulated the minister on National Radio on 31 March and said the Law Society was delighted the government had backed away from parts of its proposed changes to the system. “The FLS looks forward to working with the ministry over the next few months on the detail of the proposed reforms,” Mr Collins says. The FLS has also reached an exciting milestone by welcoming its 1,000th member. Christchurch solicitor Anne Montgomery-Lee, of Layburn Hodgins Limited, says she was thrilled to receive the news and a bottle of wine from FLS chair Garry Collin. “I’m really honoured to be the 1,000th member of the FLS, since family law was something I always wanted to do when I was at university. To accomplish that, get into family law and then be the 1,000th member is quite a privilege,” she says.

stimulating and educational. The CLANZ Annual Conference is the most important gathering of in-house lawyers for the year and will take place at the Napier War Memorial Conference Centre on May 16 and 17. This year’s theme is Agents of Inﬂuence and looks at the role that in-house lawyers play as key influencers within their organisations. The conference provides sessions and workshops tailored for in-house practice that combine inspirational speakers and practical topics. CLANZ executive officer Helen Mackay says the conference also provides the perfect opportunity to network with and learn from other in-house lawyers throughout New Zealand, whether between the conference sessions or at the excellent social functions that form part of the conference programme. “In 2013 we have a fabulous Thursday night event at the Black Barn winery and the Friday night gala dinner and awards ceremony will be a perfect finale to the conference. I really look forward to welcoming people to Napier in May,” she says. To register, visit www.clanzconference.org.nz. ThE PRoPERTy lAW SECTIon has had a postal election with six candidates vying for three vacancies on the Executive Committee. Chris Moore (chair), David Roughan and Russell Mawhinney retired on rotation from the Executive Committee. Jeannie Warnock (Greenwood Roche

Chisnall, Wellington) and Niamh McMahon (McMahon Butterworth Thomson, Auckland) were elected to the Executive Committee. Russell Mawhinney (Preston Russell Law, Queenstown) was re-elected. Andrew Logan was appointed interim chair for the period to 16 May, when an election for chair, deputy chair and treasurer will take place. The PLS will host a mini-seminar (run in Auckland, Christchurch, Dunedin and Wellington in the last 12 months) with the Hawkes Bay branch in Napier on 14 May, covering compliance watch points as well as various LINZ and Landonline processes and upgrades. “This will also allow practitioners to raise any issues they have with Landonline with the expert panel,” says PLS section manager Jennifer Chowaniec. The section has been approached by LINZ to provide comments on an early draft of the Land Transfer Bill. The bill is being drafted by LINZ, based on a 2010 Law Commission report, which the PLS also provided a submission on. Ms Chowaniec says the early draft bill is expected to be released on 18 April and that a specialist committee of the PLS is currently undertaking preparatory work, in order to provide comments within the timeframe before the bill is introduced.

NZLS lawyers website • keep up-to-date with local and regional news and events • have your say on law reform • find information and resources for practising law nzls esT 1869

ThE ClAnZ 26Th AnnuAl Conference 2013 promises to be both

http://my.lawsociety.org.nz www.facebook.com/mylawsociety https://twitter.com/mylawsociety

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BRANCH NEWS AuCKLAnD TIm JonES IS the new President of the New Zealand Law Society’s Auckland branch. His unopposed election to the office was announced at the branch’s annual meeting on 20 March. Before his election as President, Mr Jones was the branch’s Vice-President. A former member of the NZLS Property Law Section executive, he has been involved with the Property Law Section’s various working parties on the Unit Titles Act and the Land Transfer Act review together with membership of the DBH working party on the Unit Titles Act 2010 and Regulations. Mr Jones been the convenor of the Land Titles Systems Technical Committee for many years, and before that the convenor of the working party and involved with the implementation of Landonline since LINZ conceived the idea of electronic searching and registration in 1996. He has also been a member of the NZLS and ADLS Inc CLE committees for several years and a member of the NZLS CLE Ltd board for some years. He sat on the Council of Legal Education as the Auckland Representative and been the moderator for the Property and Equity papers of the Law degree for six years. Mr Jones heads both Glaister Ennor’s land development and property development teams. He was a member of the Government working party/advisory group assisting the Department of Building and Housing on redrafting the Unit Titles Act 2010 and its regulation. He is a former Council member of the Auckland District Law Society. Until last year, Mr Jones was a member of its Documents and Precedents (formerly Forms) Committee for approximately 15 years, and involved with the Forms

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Committee in revision of the Agreement for Sale and Purchase, 7th, 8th and 9th editions, together with the auction and tender forms, plus revision of the ADLS business form.

announced at the annual meeting are Sandy Callanan (Lewis Callanan), Antony Mahon (barrister) and David Campbell (Kensington Swan).

networking for female lawyers A nETWoRking event for female lawyers was held at the Auckland branch function room on 10 April. Forty female lawyers attended and reported in At the networking event for female lawyers, (from left) Nessa Warne, Trish Sherson survey feedback and Simone Lawry. that this was an excellent social and networking event – He has presented seminars for both and that they want more of these types the New Zealand Law Society and the of events. Auckland District Law Society Inc on Trish Sherson, owner of public topics such as subdivision, building relations firm Sherson Willis, began contracts, e-dealing implementation, the evening with a succinct check list Unit Titles Act, GST and the CZR on “what works” for creating a personal Regime, and similar matters. brand. It is more than just how you Mr Jones and Karen have been look, it is your reputation and how you married for 37 years. They have two consciously decide to connect and act grown children. Karen is well known with people. People are not going to to some members of the profession remember necessarily what you said as a librarian at the Auckland District but they will remember how you made Law Society Library for several years them feel. Key points are developing before having children and, since then “consistency” of a brand and its parallel and to the present date, she is on the partner “reputation” of brand. staff of the New Zealand Law Society’s Ness Warne followed with key points Auckland Library. for applying make-up for busy lawyers. Mr Jones’ interests include being Simone Lawry whipped a tired hairdo a marathon runner for 25 years until into a chic French knot with glamorous relatively recently and now as a walker. results. Backcomb brushes were distribAs well as walking half marathons, he uted for all. Refreshments followed. has taken up cycling to replace running. He also regularly practises yoga. Mr Jones owns a boat with one of his partners at Glaister Ennor and is a very keen fisherman. He is also interested in reading historical novels and science InSPIRED By ThIS yEAR’S fiction. great weather, 20 lawyers went paddle The three Auckland branch council boarding at Judges Bay on a warm 27 members whose election was also March evening.

paddle boarding

After some keen practice paddling around the bay, New Zealand Law Society staff member Kristin Percy whipped everyone into teams and a “pass the lei” relay race was held around the buoys. As one lawyer noted: “what a great event. It’s a real stress buster … We hope to do it again to herald in another hot, endless summer for 2014”.

Whanganui Kathryn Crooks has been re-elected President of the Whanganui branch of the New Zealand Law Society at the branch’s annual meeting on 12 April. Admitted in the early 1980s, Kathryn’s work history includes practising in a large Wellington firm, a small Rotorua-based firm and Whanganui. Her main focus was property and commercial litigation until 1996 when she began to focus on family and mental health law. Ms Crooks is currently a senior partner of Armstrong Barton Lawyers in Whanganui. She is also a District Inspector for Mental Health, a mediator and is regularly appointed by the court to represent children. Harry Mallalieu was re-elected VicePresident and Stephanie Burlace, David Woodbridge and Sarah Little were re-elected to the Whanganui branch Council.

C a n t e r b u r y- w e s tla n d

Hunter Cup golf

Waitakiri Golf Club, proved a fantastic event. While the autumn weather was brisk, the day fine and the field of players enjoyed benign conditions. Stephen Jeffery and Glenn Jones were declared the joint winners with a net score of 66. The team from the Ministry of Justice won back the E A Lee Trophy and the lawyers won the day (and the newly minted silverware) against the accountants’ team. Thanks to the sponsors SBS, Bradley Nuttall Ltd, Eliot Sinclair Ltd, Colliers and Konica Minolta and to the organising committee.

W e lli n g t o n

Kapiti dinner

Enjoying the Kapiti practitioners’ dinner (seated from left) Sir David Carruthers, Lindsay McKay, Gavin Adlam and Helen McKay.

The Kapiti practitioners’ dinner, held at Soprano Ristorante, Paraparaumu Beach on 5 April was very successful. The dinner was attended by 32 people. Wellington branch President Mark Wilton welcomed those attending. In his welcome, Mr Wilton thanked Don Breaden, partner of Paraparaumu firm Breaden McCardle Chubb Lawyers, who has organised a barbecue for Kapiti practitioners during recent years. He also thanked Sam Jennings for his role in helping organise this year’s dinner.

with a score of 33. Neville Carson won the “nearest pin” contest, and John Greenwood recorded the longest drive. The organisers are grateful for the generous sponsorship of ANZ and Fairmont Estate Wines.

Ethics for the modern day professional The Wellington branch Ethics Committee will hold its inaugural ethics panel in Wellington on 21 May at 4:30pm. Minter Ellison Rudd Watts is sponsoring the event, which will be held in the firm’s offices at level 18, 125 The Terrace. A panel of experts will head discussion in an open forum style, focusing on topics and scenarios relevant to practitioners from all walks of business. The speakers are Lane Neave partner Dr Duncan Webb, the Judicial Conduct Commissioner Sir David Gascoigne, Minter Ellison Rudd Watts senior consultant Jock Nicolson and Beith Atkinson, Manager, Legal Operations, Department of Corrections and Director of the Institute of Public Administration of NZ. Kenneth Johnston of the Wellington branch Ethics Committee is the moderator. There is no cost to attend, but numbers are limited and bookings can be made at bookwhen.com/wellingtonbranch.

Last Resort golf

Joint winners of the Hunter Cup golf with their trophy, Stephen Jeffrey (left) and Glenn Jones.

The annual Hunter Cup Golf Day, held on Friday 12 April at the

Feilding lawyer Richard Howie emerged the winner of this year’s Last Resort Golf Tournament, held at the Masterton Golf Club on 12 April. Play was under the Stableford format and Mr Howie scored 41. Brett Gould and Alan Henwood, with a score of 37, were second equal, while Don Dobson, Neville Carson and David Wallace also tied for third place,

Richard Howie with the trophy he claimed in winning this year’s Last Resort Golf Tournament.

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UPCOMING PROGRAMMES Programme

Presenters

Content

Where

When

Advanced Litigation Skills

Director: Jan McCartney SC

Aimed at practitioners with at least 6-10 years’ litigation experience (either criminal or civil) this five-day Wellington non-residential programme follows the same methods that have proved so successful in the basic level NZLS Litigation Skills Programme. The advanced course builds on the skills developed in the basic level programme and enables participants to work on a case that requires a mastery of many legal and factual issues with a heavy reliance on experts.

Drafting Better Court Documents

David Goddard QC

A well written court document is clear, persuasive and consistent with procedural rules. It can have a significant impact on the outcome of a proceeding. You will look at statements of claim/notice of claim, statements of defence/response, interlocutory applications, notices of opposition and notices of appeal. You will learn helpful drafting tips and common traps.

Litigation Skills Programme

Director: Janine Bonifant

This highly regarded residential week-long advocacy training course is open to applicants with at Christchurch 18-24 Aug least three years’ litigation experience. Selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. It’s hard work, great fun and most participants say it’s the most effective value-for-money course they’ve ever attended! Applications close Friday 7 June 2013

Torts Update

Andrew Barker Prof Stephen Todd

The law of torts continues to evolve at a fast pace and it is important that you are as up-to-date as possible. This seminar will update you on developments in negligence, especially around the issue of leaky/defective buildings; vicarious liability, particularly in relation to sexual abuse; economic torts in light of OBG v Allan; compensatory and exemplary damages; developments in the limitation of actions; and particular issues in tort law that arise in the context of litigation. Webinar for smaller centres.

CIVIL 9-13 Jun

Christchurch 6 May Wellington 7 May Auckland 8 May

Dunedin Christchurch Wellington Hamilton Auckland Webinar

24 Jun 25 Jun 26 Jun 1 Jul 2 Jul 26 Jun

COMMERCIAL/COMPANY Introduction to Company Law

John Horner Ben Johnston Andrew Leete Mark Odlin Graeme Switzer Daniel Wong

This practical “transaction” based two-day workshop will equip you with the knowledge and understanding to deal with the purchase, establishment, operation and sale of a business.

Auckland 13-14 May Wellington 27-28 May Christchurch 6-7 Jun

Creditors’ Remedies

David Friar Rachel Pinny and John Larner or Jeremy Morley

The increase in the number of companies and individuals failing to pay their debts in part reflects the economic climate of the GFC. This seminar will provide a road-map to remedies available to secured and unsecured creditors as well as an update on the most recent cases. It will also examine practical aspects to consider before deciding which remedy path(s) to follow.

Dunedin Christchurch Wellington Hamilton Auckland Webinar

Webinar for smaller centres. Commercial Law Intensive

Chair: Geof Shirtcliffe

For lawyers advising on commercial transactions, this day is a must. Chaired by Geof Shirtcliffe, the Wellington intensive includes sessions on: personal liability for commercial dealings, commercial insurance, the Auckland Financial Markets Conduct Bill and raising capital, the latest developments from the OIO, consumer law reforms, AML/CFT compliance requirements and a case law update.

27 May 28 May 29 May 4 Jun 5 Jun 29 May 27 Jun 28 Jun

CRIMINAL Criminal Procedure Act Intensive

Chairs: Judge Bruce Davidson or Judge Chris Harding

This Act introduces the biggest change to criminal procedure in 50 years. Plan now to attend the intensive.

Crown Solicitor Network

Dunedin Christchurch Wellington Hamilton Auckland

21 May 22 May 23 May 28 May 29 May

Duty Solicitor Training Programme

Centre

Intro

Asssessment

Practice Court

Duty solicitors are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. You will: • complete pre-course reading on the key tasks of a duty solicitor • learn about penalties, tariffs and sentencing options • observe experienced duty solicitors (5 x ½ days) • develop your advising skills by working through a series of realistic scenarios • sit an open book examination • practise and improve your advocacy skills • make critiqued appearances as a duty solicitor at a practice court • be observed and assessed while appearing as a duty solicitor (a full day)

Wellington Nelson Auckland Gisborne Hamilton Tauranga Rotorua Dunedin Invercargill Wellington Whanganui Hawkes Bay New Plymouth Palmerston North Manukau Whangarei

22 March 22 March 12 April 12 April 19 July 19 July 19 July (noon) 2 August 2 August 16 August 9 August 16 August 16 August 16 August 13 September 13 September

3 May 3 May (in Wgtn) 24 May 24 May (in Akd) 23 August 23 August (in Ham) 23 August (in Ham) 6 September 6 September (in Dun) 27 September 27 September (in Wgtn) 27 September (in Wgtn) 27 September (in Wgtn) 27 September (in Wgtn) 18 October 18 October (in Mnku)

4 May 4 May (in Wgtn) 25 May 25 May (in Akd) 24 August 24 August (in Ham) 24 August (in Ham) 7 September 7 September (in Dun) 28 September 28 September (in Wgtn) 28 September (in Wgtn) 28 September (in Wgtn) 28 September (in Wgtn) 19 October 19 October (in Mnku)

Advanced Litigation Skills

see listing under Civil

Litigation Skills Programme

see listing under Civil

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. 28

L A W TA L K 8 1 7 / 2 6 A P R I L 2 0 1 3

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

Programme

Presenters

Content

Where

When

Children’s Interests Under the PRA & s 182 FPA

Prof Nicola Peart

Relationship property disputes focus naturally on the property rights of the adult parties. What are the powers within the PRA and s 182 FPA to protect children’s interests when parents separate? This webinar will provide insights from recent case law on the risks of disregarding children’s interests.

Trusts Conference best practice in 2013

Chair: Dr Andrew Butler

The 2013 conference will focus on some of the “big picture” questions posed in trust law and practice. Wellington This will include an examination of the role, function and future of trusts in the 21st century; questions Webinar Auckland which affect the limits to which the trust concept can be deployed, and some of the questions about the legitimacy of the use of trusts.

6-7 Jun 13-14 Jun

Residential Property Transactions

Dedra Dorrington Simon Ellis Nick Kerney Duncan Terris

This very popular two-day, limited-number workshop, for solicitors at the start of their property law career Wellington and legal executives with some experience, follows three files from client instructions to settlement and Christchurch beyond. Auckland Hamilton

1-2 Jul 8-9 Jul 29-30 Jul 5-6 Aug

FAMILY Webinar

24 May

PROPERTY

PUBLIC Public Sector Governance Intensive

Chair: Robert Buchanan

By attending this intensive you will have the opportunity to hear from a range of speakers addressing Wellington the current dynamics of public sector governance and what can be learnt from new practises and recent events. This intensive should appeal to all lawyers who work in, or externally advise, the public sector – as well as those in governance and policy roles.

Lawyer as Negotiator

Jane Chart

Building on your own experience, this one and a half day workshop provides hands-on practice and feedback, as well as a conceptual framework for preparing for and undertaking negotiations. It examines different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, and for addressing specific issues which you might wish to raise.

Not-for-Profits – changes and challenges

Mark von Dadelszen

Often lawyers end up being the “go to” legal adviser for the Not-for-Profit organisations of which they are members. Boards and committees have high expectations of the perceived skills of the legal adviser, making this a challenge as there is little or no formal education in incorporated societies and charitable trusts law. Attend this webinar to learn about practical constitutional and procedural issues relating to NFPs, recent court decisions and Charities Commission activities affecting NFPs.

Privacy Law – where are we now?

John Edwards Prof Paul Roth

Clients nowadays expect their lawyers to be able to give sound advice on the Privacy Act as part of a Christchurch comprehensive legal service. Attend this seminar to gain a good understanding of the Act and how it Wellington interrelates with other areas of law so that you can anticipate and avoid trouble for your clients or know Auckland how to fix existing problems they might bring to you.

29 May

GENERAL

Webinar for smaller centres.

Auckland 1 Christchurch Wellington 1 Wellington 2 Auckland 2 Webinar

1-2 May 29-29 May 12-13 Jun 12-13 Nov 19-20 Nov 6 May

13 May 15 May 20 May

Webinar

15 May

Serects of Success

Irene Joyce

Understand the factors which make small to medium size firms successful, analysis how well your firm measures up and how to start implementing changes to improve your firms success.

Napier Christchurch Dunedin Wellington Hamilton Auckland

27 May 18 Jun 19 Jun 25 Jun 27 Jun 2 Jul

Tricky Issues in the Life of a Lawyer

Paul Collins Grant Illingworth QC

Each year the number of complaints against lawyers is increasing and even the most experienced are Christchurch making mistakes. Attend this seminar to learn how to avoid the pitfalls and protect yourself from complaints; Wellington the process if someone does lay a complaint; your duties and legal and professional responsibilities; and Auckland what strategies to use if a complaint is laid against you.

10 Jun 11 Jun 12 Jun

Webinar for smaller centres

Webinar

11 Jun

Stepping Up foundation for practising on own account

Director: John Mackintosh

All lawyers wishing to practise on their own account whether alone, in partnership, in an incorporated Christchurch practice or as a barrister, will be required to 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.

13-15 Jun

Technology Law Conference

Chair: His Hon Judge David Harvey

New information and communications technologies intrude into almost every area of law and legal practice. Auckland This one-day conference will discuss recent changes in technology law and provide an insight on areas of Wellington concern, interest and possible future developments. The Technology Conference gives practitioners, law professionals and those in the ICT industry an opportunity to increase their awareness and understanding of the impact of IT on the law and legal practice.

20 Jun 21 Jun

Trust Account Supervisor Training Programme

Mark Anderson David Littlefair and David Chapman Bob Eades or Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ preparation, attend the Hamilton assessment day and pass all assessments. Make sure you register in time to do the preparatory Wellington work before the assessment day as listed on the right. Auckland 2 Christchurch

10 Jul 18 Sep 20 Nov 27 Nov

Online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz L AW TA L K 8 1 7 / 2 6 A P R I L 2 0 1 3

LAWYERS COMpLAINTS SERvICE Lawyer who used clients’ money guilty of professional misconduct A lAWyER noW WoRkIng In Asia, Tim Ban Choon Tee, has been found guilty of three charges of professional misconduct by the Lawyers and Conveyancers Disciplinary Tribunal. Mr Tee did not appear when the tribunal heard the charges on 27 March, the tribunal said in the record and reasons for its determinations, issued on 5 April ([2013] NZLCDT 12). The first charge alleged that Mr Tee borrowed $52,000 from two clients in September 2004. The bulk of the money had come from a finance company loan which provided one of the clients with a surplus of $50,000 over the amount needed to settle the purchase. Mr Tee had acted for him on the purchase and was aware he had the surplus. At no stage did Mr Tee advise him he should obtain independent advice, the client said. Mr Tee defaulted on the payments and the District Court at Christchurch entered judgment against Mr Tee for $76,504.35 plus costs and disbursements. The client had received only $4,000 of that amount. The second charge related to another client, who deposed in an affidavit that he had paid $1,400 at Mr Tee’s office for fees regarding his application for residency. The client said he was not given a receipt for the payment. Mr Tee failed to file the application within the required period. When the client sought to get his money back, Mr Tee said he was in financial difficulty and would pay the money back when he was able. The client’s new legal representatives eventually managed to obtain payment of the $1,400. A New Zealand Law Society inspector said in an affidavit that Mr Tee had

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closed his trust account in July 2008 and had taken the $1,400 at that time. Mr Tee had used the money to reduce his business account overdraft. The third charge was that Mr Tee failed to place $10,000 on account of costs for another client in a trust account and that he failed to advise her to seek independent advice regarding a gift of $200. The client was offered work, conditional on her obtaining a work permit. She applied to Immigration New Zealand, but was declined a work permit. Mr Tee applied for reconsideration of the work permit application and made an application for residency. When she became concerned at what she considered a lack of progress, she approached her employer, who informed her she had to pay Mr Tee $10,000 cash for the application plus a further gift of $200 for Mr Tee’s work. Mr Tee provided neither a receipt for the $10,200 nor did she receive an invoice indicating the extent and cost of Mr Tee’s legal services. Mr Tee eventually told her that her employer suggested there was a problem with her immigration application and it would require another $50,000 in cash to sort the problem out. The client discontinued her application for permanent residency. Mr Tee’s conduct in relation to the $10,000 represented misconduct. However, while it had some concerns about the $200 taken as a “gift”, because it was not a significant amount, the tribunal said it doubted independent advice was needed. “There was no evidence filed by Mr Tee in support of his defence, nor any appearance for Mr Tee at the substantive hearing,” the tribunal said. “It has been apparent through the

entire disciplinary process … that Mr Tee was refusing to engage in the process. “The tribunal can, of course, only deal with matters properly in evidence and the tribunal warned Mr Tee on a number of occasions that he needed to engage in the disciplinary process to ensure his defence was adequately before us.” Although Mr Tee filed a “Brief of Evidence”, he failed to file an affidavit in support of his defence, despite repeated requests from the tribunal. The brief of evidence also “does little to answer the charges or the evidence filed by the standards committee,” the tribunal said. Mr Tee’s actions, the tribunal said, represented a “deliberate departure” from accepted standards of conduct. The actions were compounded by the personal advantage accruing to Mr Tee from his misconduct, an advantage which directly correlated to the disadvantage suffered by his clients as Mr Tee had used their funds. As well as commenting on Mr Tee’s failure to adequately engage in the disciplinary process, the tribunal attached an appendix to the decision, listing Mr Tee’s failure to respond and his failure to follow tribunal directions. That was “to ensure there is clarity about the approach Mr Tee has chosen to take in this matter,” the tribunal said. The tribunal ordered that the Canterbury-Westland Standards Committee file and serve its submission on penalty and costs within three weeks of the date of determination and reasons, and that Mr Tee file and serve his submissions on penalty and costs within three weeks of service of the standards committee submissions.

L AW YERS COMPL AINTS SERVICE

Censure for failing to convey risk A lawyer, E, has been censured by a Lawyers Standards Committee after he failed to convey to his client the risk of not rejecting a requisition within the time frame required in a sales and purchase agreement. The client accepted an offer to buy his house and contracted to buy another property. During the sale and purchase process, the buyer’s solicitor said that the buyer wanted a conservatory to be included in the title to the unit. After making some enquiries, E advised his client that the requisition would cost between $5,000 and $6,000 to rectify. The client thought this was too expensive. E offered to negotiate with the buyer through her solicitor. The client said he was prepared to make a contribution of $2,000 towards rectification. At that time, the client believed that if E could not achieve that, the contract would end and the property would be placed back on the market. However this was not the case and the failure to reject the requisition in time meant that the client could not avoid rectifying

the requisition. The requisition alone would ultimately cost the client more than $30,000. The standards committee said the situation involved an automatic provision in an agreement for sale and purchase where if a party does not act to reject a requisition made by a prospective buyer by the due date, the buyer is automatically deemed to accept the requisition and agree to rectify it. E had failed to convey that risk to his client. The client was left having to rectify the requisition. The committee, therefore, found E had breached his obligations to his client to act competently and exercise his duty to take reasonable care, and was guilty of unsatisfactory conduct. The committee made just two orders: to censure E, and to publish the facts without any identifying details about the people involved. The client sought $25,000 compensation, $54,140.05 costs incurred to date after the committee’s determination on E’s conduct plus any subsequent costs to rectify the title, reimbursement

of his legal costs and an apology from E. In determining if compensation was appropriate, the committee noted that submissions on behalf of E said that the disciplinary forum was not an appropriate forum to seek civil damages. The standards committee said that the costs of rectification of the title were not completely attributable to E’s error or omission as advice received by the client several years earlier when he had bought the property had contributed significantly to the loss. In addition, the committee’s role did not extend to reimbursement of costs. For E, it was submitted that he had waived all his fee relating to the sale and purchase, and that he had apologised to the client. It was also submitted that E and his firm had conducted themselves in accordance with the client’s instructions and were acting in his best interests at all times. Following these submissions the committee determined censure was appropriate, and directed publication, but did not require further penalty as E’s conduct was an isolated failure and not indicative of a course of conduct.

Estate charged excessive fees A lawyers standards committee has found a lawyer, D, guilty of unsatisfactory conduct after failing to review an estimated fee when required, failing to inform the client when the estimate had been exceeded, and charging excessive fees. The committee found that D had breached Rule 9.4 of the Lawyers Conduct and Client Care Rules in failing to review the estimated fee for administration of the estate after three months and to inform the client when this had been exceeded. Cost revision had also resulted in a recommendation of a range of reductions of the fee. The standards committee determined that it would impose no penalty, on the

basis that D had previously reduced the fee to the upper of the range recommended by cost revision. The complainant submitted that D had not honoured part of the terms of engagement in that he did not complete any reviews, and alleged that D had not devised any strategies to control administration costs and did not endeavour to prevent significant cost over-runs. However, D’s counsel submitted that D’s firm had provided frequent and comprehensive reporting to the estate executors and that the estate was billed frequently. This submission was accepted by the committee. The standards committee noted that D had accepted that the cost assessor’s

range of fees was appropriate and was willing to further reduce the fee to the lower end of the recommended range of fees ($28,000). In those circumstances, the committee decided that no further penalties would be required other than the finding of unsatisfactory conduct. D reduced the fees, and provided the committee evidence that he had done so. He provided a covering letter to the estate executors with an attached statement showing the fees had been reduced to the lower range figure and advising that the estate had been credited with the appropriate amount. The total reduction in fees was approximately $13,500.

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Registry The following people have applied to the NZLS for certificates or approvals. Admission under Part 3 of the Lawyers and Conveyancers Act 2006 Auckland Branch CHAN Yee Chung Andy RUDDELL James Anthony Canterbury Westland Branch AN Letitia Ellen BRADLEY Katherine Joan CHRISTENSEN Lana Marie ESSON Elizabeth Anne GALL Megan Elizabeth HARRISON Shelly Melissa HENDRY Tammy HOPKINS Jordan Leigh KIM Daniel Ki Hoon LATTY Nicholas William LIM Timothy Teng LOOI Yung Joshua McCAL Benjamin John McGREADY Alexandra Lanceley NEATE Andrew Vaughan O’BRIEN Benjamin Patrick O’NEALE Matthew John PATTEMORE Matthew Philip REEVES Paul David STURMAN Anna Elizabeth SURGENOR Marin Liam

NKYA David Alan Solomon REDDY Preeyadarshani Reeta REYNOLDS Jesse Thomas Philip ROMANOS Alexander Joel SAGE Ivan Gordon SCHOUTEN Kim SCOTT DOWELL Kathryn Laura SHELTON Alice Elizabeth SOLOMON Naomi Te Oraeti THORBURN Cara Olivia

TRINDER Aja Consuella VAN DER LOO Joseph Paul VARA Hemma ZLOTKOWSKI Andrzej Miroslaw Hawkes Bay Branch EXETER Jane Frances Otago Branch KAHN Richard Henry Waikato Bay of Plenty Branch ANAND Devender Mohan CHEN Jing (Winnie) DICK Courtney Louise EDWARDS Roseanne Marjory FEAST Nicholas Lindsay HUANG Ko-Hai (Ken) MACLENNAN Lisa Anne McFETRIDGE Terry Nigel SMITH Brintyn Glyn Wellington Branch BECKETT Aidan Oliver BLAKE Jennifer BUTTERWORTH Amanda Kate COLE Jonathan Graeme COLEMAN Michaela Jane DE VILLIERS Michelle Irene DONALDSON Scott Ian FOURT-WELLS Reuben Jack GRAHAM Steven Paul HEGARTY Robert Bernard Mills HERBERT Campbell Murdoch Macrae JEFFRIES Hannah Alison KEREN Inbal LEE Sung Yeon (Jane) MARA Iotefa Aaron Arepa MAZENGARB Daniel John MORGAN Amelia Hawaikinui NEWMAN Kent Huntly NICHOLLS Adrik James

Approval to Practise on Own Account under s30 of the Lawyers and Conveyancers Act 2006 Auckland Branch AHMED Simrin Kushalappa BAIER Nadine Claire BURNETT LANAUZE Simone Merelina Spring Forbes CAMPBELL Thomas Robert HO Kwong Fai (Danny) LAPTHORNE Simon Mark MEADOWS-FLOWER Fiona Robyn (Fin) O’CALLAGHAN Christian Cornelius Canterbury Westland Branch KNOWLES Craig William PEDLEY David Owen Waikato Bay of Plenty Branch BEAN Charles Wellington Branch DELIGIANNIS Maria FERGUSON Kirsten Jane Shayle 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 2 May 2013 Any submissions should be given on the understanding that they may be disclosed to the candidate.

Fearon & Co 56x100 ad_BW.qxd:Layout 1 Wills

legal services

VERONICA MARGARET ELIZABETH TRIGG

Would any lawyer holding a will for the above-named, late of 653 Huia Road, Parau, Waitakere, musician, who died on 11 March 2013 at Auckland Hospital, aged 55 years, please contact Frank Chan, Associate at Corban Revell Lawyers, DX DP92558, PO Box 21180, Henderson, Auckland 0650, ph 09 837 5745, fax 09 838 7187, email fchan@corban revell.co.nz

YOSHIHISA KAWAGUCHI

Would any lawyer holding a will for the above-named, late of 69, Sunida 4-chome, Sumida-ku, Tokyo, Tomosada, Kawaguchi, businessman, born on 15 October 1939, who died on 19 September 2012, please contact John Jon, PO Box 6908, Wellesley Street, Auckland 1141 or DX CP24080, ph 09 970 8810, fax 09 970 8820, email john@queencitylaw.co.nz. Public Notice

MARY DOROTHY MICHAEL

Would any lawyer who currently acts for the above-named who currently resides at Edenvale Home, Mt Eden, or has previously acted for the above named, especially in 1968/69 in the New Plymouth area, please contact Kathryn Buchanan, Barrister, North Shore Legal Chambers, PO Box 302 795, North Harbour 0751, ph 09 447 3567, fax 09 414 6969, email kathryn@nslc.co.nz

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ENGLISH LAW AGENCY SERVICES

21/8/09 09:02 Page 1 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

for sale

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 00 44 (0)1483 540843

mw@fearonlaw.com

PROPERTY John Phillips

00 44 (0)1483 540841

ajp@fearonlaw.com

PROBATE

Francesca Nash 00 44 (0)1483 540842

fn@fearonlaw.com

Regulated by the Solicitors Regulation Authority of England and Wales

ADVERTISE WITH US!

LAWTALK • LAWPOINTS • OUR WEBSITES

CHRISTINE WILSON Advertising Co-ordinator advertising@lawsociety.org.nz 04 463 2905

WILLS

EKENGARANGI TE ROHA

Would any lawyer holding a will for the above-named, aka Shirley Mane, late of 6 Tuapapa Street, Johnsonville, Wellington, born on 21 September 1931, who died on 13 March 2013 in Wellington, please contact Frances Ah Mu, Strachan O’Connor, Solicitor, PO Box 13135, Wellington 6440, DX SP31503, ph 04 939 2233, email frances@justlaw.co.nz.

DOROTHY DIANE MARSDON

Would any lawyer holding a will for the above-named, late of Metlifecare Crestwood at Titirangi, who died on 6 March 2013, please contact Ross Craig, Craig Grifﬁn & Lord, Solicitors, DX CP31003 or PO Box 9049, Newmarket, Auckland 1149, ph 09 631 0593, fax 09 630 6821, email ross@cglord.co.nz.

DOROTHY MARGARET ALLPORT

Would any lawyer holding a will for the above-named, late of Mt Roskill, Auckland and Brisbane, Queensland, retired, born on 23 August 1918 , who died on 10 March 2013, please contact Shayne Allport, 66 Forestdale Drive, Forestdale, Queensland, Australia 4118, ph (Brisbane) 380 93525 email ssall@bigpond.net.au.

ROSELINE PEGGY FRANCIS RANGA KIHIRINI

Would any lawyer holding a will for the above-named, late of Waihi, aged 64 years, who died on 8 March 2013, please contact Chris Nixon of Mark Copeland, Lawyer, PO Box 6083, Rotorua 3043, ph 07 345 9050, fax 07 345 9053, email nixon@copelandlaw.co.nz.

ADRIAN WILLIAM KING

Would any lawyer holding a will for the above-named, late of Flat 3, 24 Campbell Road, Royal Oak, Auckland, who died on 23 October 2012, please contact Luke Dixon, Patterson Hopkins, 149-155 Parnell Road, Parnell, Auckland 1052, or PO Box 37057, Auckland 1151, ph 09 968 8578, email luke@pattersonhopkins.co.nz. PRaCTICE NOTICE

MARGARET KATHLEEN AULL

Would any lawyer holding a will for the above-named, late of 99 Beachhaven Road, Beachhaven, Auckland, widow, who died on 14 January 2013, please contact Robert Aull, 1333 Great South Road, Ramarama, Auckland 2579, ph 09 294 8089, or mobile 0278 220 161, email robertaull@gmail.com.

ALLAN SONNEVELD

Would any lawyer holding a will for the above-named, late of Wellington and formerly of Invercargill for the last 12 years, who died on 2 April 2013, please contact Sue Rainey, Burrowes and Company, PO Box 24515, Wellington 6142, ph 04 473 7733, fax 04 471 1121, email sue@burrowes.co.nz. PubLIC NOTICE

LEGaL SERvICES LEGAL SERVICES

SDS DOCUMENT SERVICES SDS will serve your legal documents promptly and professionally plus provide you with an affidavit of service (prepared in accordance with District, Family & High Court Rules). $70.00

Auckland (Albany to Papakura) Add $30 for urgent pick up & serve – Auckland

$100.00

Nationwide (main towns & cities)

Plus GST mileage is charged to remote locations @ $0.95 per km

Other services available Document serving – International Tracing – NZ, Australia, USA & England Repossessions – commercial & domestic Re-entries – commercial & domestic

Contact Details SDS Document Services PO Box 35142, Auckland 0753 DX BP62024 Tel: 09 475 6206 / Fax: 09 475 6205

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SITuaTIONS vaCaNT

A GLIMPSE OF YOUR FUTURE… Financial Services Lawyer This is a fixed term contract which is estimated to be of 3-6 months’ duration. There is some possibility of flexible hours and potentially permanent employment at the end of the contract. This organisation needs an experienced financial services lawyer with intermediate to senior experience who has ideally dealt with securities and managed funds issues. You’ll be assisting a large in-house legal team in a time of transition – both for the organisation and in terms of ensuring their products and services are compliant with new legislation. REF: 33036 Commercial Property Lawyer This well respected mid-sized Nelson practice requires a Commercial Property Solicitor, with corporate leasing experience. 3-4 years’ PQE. You will possess: a solid commercial background, commercial nous, excellent attention to detail, ability to work autonomously, highly developed time management skills and a positive, ‘can do’ attitude. Competitive remuneration available to the successful candidate. REF: 32777 For further details please call Carla Wellington or Jane Wellik on 04 499 6161, or email your CV to wellingtonjobs@momentum.co.nz quoting the reference number. 191 Queen Street Auckland P +64 9 306 5500

40 Mercer Street Wellington P +64 4 499 6161

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

Legal Counsel PHARMAC, the Crown Entity responsible for ensuring New Zealanders have access to a wide range of affordable medicines, is growing as it takes on new responsibilities for vaccines and medical devices. It needs a talented lawyer to support its growth. Reporting to the General Counsel, the role of Legal Counsel will be a challenging position for an experienced lawyer. The Legal Counsel will be responsible for supporting the General Counsel, and often operating independently, to provide high quality legal advice to PHARMAC. The successful candidate is likely to have a strong background in commercial law, including contracting, but will from time to time provide advice on matters across the range of PHARMAC’s activities. As a result, expertise in public law, procurement, dispute resolution, intellectual property, and employment law would all be advantageous. The Legal Counsel will be a trusted advisor to PHARMAC staff and management. For such a varied role, we need a high performer with well-rounded capability and confidence to operate at a senior level. High service orientation and communications ability is required along with a collegial approach. We also need a practical thinker: someone that understands the interface of legal risk management with our commercial and operational reality. The successful candidate is likely to have five or more years post admission experience, with significant prior relevant work experience.

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At PHARMAC we make the most of our opportunity to make a difference for New Zealand, including through developing ourselves and our organisational capability. It’s our people that make the difference, so we value them and the commitment and professionalism they bring. We also value our unique diversity, combining science, medicine, commerce, analysis, law, marketing and more. If you want to make a difference to the lives of New Zealanders, and thrive in a busy and challenging environment, we’d love to talk to you about joining this dynamic and successful government agency. To apply visit www.momentum.co.nz and enter the reference number 32972. Alternatively, email your CV, cover letter and academic transcript to carlawellington@momentum.co.nz quoting the reference number. For further information in strict confidence, please contact Carla Wellington on 04 499 6161. Applications close 6 May 2013.