Lawtalk 833 by New Zealand Law Society

LawTalk 6 December 2013 路 833

FA M I LY COURT REFORM What the changes mean for New Zealand Families F E AT U R E 路 PA G E 0 4

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Contents. Changes to the family justice system will disadvantage ordinary New Zealanders who need to resort to the Family Court at one of the most stressful times of their life.

— Law Society Family Law Section chair Garry Collin

Regulars ..................................................................

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Our Profession, Our People Practising Well

How business mentoring helped SMEs post earthquake. Over the following months and sometimes years, SMEs in the Canterbury region needed advice on how to tackle cash flow issues and an analysis of where their business priorities should lie. ..................

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Wishing you all the best for the holiday season and for 2014 Law Reform report

It has been an exceptionally busy year for law reform.

Effective practice

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Over one-third of New Zealand lawyers responding to a New Zealand Law Society survey say they are optimistic about the market for legal services in 2014.

In-house

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Aspects of leadership were the focal point of CLANZ’s inaugural CLANZmini conference. Over 230 in-house lawyers from around the country participated. ............................................................................

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Letter to the Editor From the Courts

Courts holiday hours 2013/14 ...................................................................................

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The Bookshelf Legislation

Official electronic versions of New Zealand legislation will be issued from January next year. Chief Parliamentary Counsel, David Noble explains when, how, and what this means.

Technology

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Use of iPads in Environment Court hearings .........................................................

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NZLS CLE upcoming programmes Lawyers Complaints Service Classified Advertising

Feature Family Court reform Elliot Sim LawTalk journalist Elliot Sim looks into how the Family Court will soon operate and what lawyers can do to prepare for the upcoming changes.

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LawTalk 833 · 6 December 2013 ·

From the Law Society Chris Moore

s this is the last LawTalk for 2013, I would like to comment on three issues that have emerged as we move into 2014. The first of these is the intervention rule, the rule that requires barristers to have an instructing solicitor. Most agree the rule needs changing. The Law Society has consulted with the profession and has been discussing this rule along with other organisations, particularly the New Zealand Bar Association. Taking account of the consultation and discussions, what we have been seeking to develop is a practical and workable rule that provides an acceptable balance between the needs of the profession and the interests of the public. The approach we are now looking at is to retain the intervention rule with wide exemptions. The Law Society Council has given me authority to finalise the detail of the exemptions. I will then take this proposal to the next Council meeting in April 2014, with the aim of finalising the rule then. The second issue is how we can retain and develop our young lawyers. I am concerned at the number of young lawyers that we lose from the profession, and particularly our young women lawyers. This is not something that is unique to New Zealand, but as employers it is something we need to be addressing. Whether the loss be through an inability to provide the pathways and careers necessary for retention, or through a lack of stimulation, flexibility or work/ life balance, the fact remains, many young lawyers are leaving the profession. From a purely economic

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perspective this is a terrible waste of a valuable resource. On a personal level, the loss is greater still. Without doubt, we need to be more imaginative and innovative. Clearly, we need to spend time in 2014 and the years ahead to see how we can address this important issue. The third issue is Practising Well. This Law Society initiative has been continually enhanced since it was first introduced in December 2009. Practising Well owes its genesis to an article entitled Lifting the veil of secrecy – depression in our profession published in LawTalk 732 on 29 June 2009. This article advised that the Law Society’s Women’s Consultative Group was investigating the effect of stress and the resulting depressive disorders within the legal profession. A tragic event late last year not only brought Practising Well under the spotlight, but highlighted the importance of continual improvement not just to all areas of practice, but this area in particular. That event was the loss to the profession, the community and his family of one of the great members of the legal profession, Greg King. A highly successful barrister, Greg was destined for even greater things. As we all know, depression is reported at high levels among people who practise law. There is an obligation on us all, when we see the stress levels in members of the profession, to see what we can do to help. It is important that we are alive to these issues and are proactive in helping whenever we detect signs that stress is taking a toll on either us or our colleagues. As we approach the Christmas break, we are moving towards one of those rare events in the life of a lawyer when we at last have more of that valuable commodity, time. The coming holiday season is a great opportunity to take advantage of this. I would like to wish readers of LawTalk all the very best over the holiday season, and hope that you all take time to think, or relax and enjoy those activities for which you probably often don’t have the time. And finally I would like to wish you all a productive 2014. Chris Moore New Zealand Law Society President

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

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DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145, New Zealand Edi t o r: Frank Neill 04 463 2982 editor@lawsociety.org.nz Wri t ers : Elliot Sim 04 463 2902 elliot.sim@lawsociety.org.nz Turei Mackey 04 463 2910 turei.mackey@lawsociety.org.nz Advert i s ing: Christine Wilson 04 463 2905 advertising@lawsociety.org.nz S ubscript ion I nq u iries : subscriptions@lawsociety.org.nz Desig n: Andrew Jacombs 04 463 2981 andrew.jacombs@lawsociety.org.nz Print ing: Lithoprint, Wellington

News Points Rule of law in Sri Lanka of grave concern The New Zealand Law Society has expressed its grave concern about the situation in Sri Lanka after the country denied entry to a high-level International Bar Association Human Rights Institute (IBAHRI) delegation. The delegation included the United Nations (UN) Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, and the first UN Special Rapporteur on the Independence of Judges and Lawyers, Param Cumaraswamy. The IBAHRI delegation was intending to travel to Colombo, to participate in a conference co-hosted by the Bar Association of Sri Lanka and the IBAHRI entitled Making Commonwealth Values a Reality: the Rule of Law and the Independence of the Legal Profession. The conference was scheduled to take place on 13 November ahead of the start of the Commonwealth Heads of Government Meeting in Colombo from 14 to 17 November. The Sri Lankan government revoked visas for speakers going to the meeting, forcing its cancellation. “The New Zealand Law Society joins the International Bar Association in condemning the continued refusal of the Sri Lankan government to recognise human rights

and the rule of law,” Law Society President Chris Moore says. The United Nations High Commissioner for Human Rights, Navi Pillay, visited Sri Lanka in August 2013 and later expressed her concern at erosion of the rule of law and the lack of explanation for the disappearances of many people. In January 2013 the Chief Justice was dismissed by the President two days after the Sri Lankan Parliament voted to impeach her. There is strong evidence that this was prompted by dissatisfaction with a number of decisions by the Supreme Court.

Law schools’ market collapsing Fewer students are studying law in the United States, despite law schools offering the lure of tuition discounts, according to Colorado University law professor Paul Campos. Writing on the blog lawyersgunsmoneyblog. com, Professor Campos notes that enrolment at American Bar Association approved law schools is down nearly 25% since 2010.

“Over the past couple of years, the disjunction between the cost of law school and the marginal economic benefit provided by a law degree has become sufficiently self-evident that the market for places at ABA law schools has begun to collapse,” he writes. As a result of that, the large majority of law schools “are incurring significant operating deficits”.

ISSN 0114-989X 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. 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.

LawTalk 833 · 6 December 2013 ·

IT ' S A B O UT T HE C HIL DR EN Changes to the Family Court, expected to come into effect in March 2014, will bring significant challenges to the profession. LawTalk journalist Elliot Sim looks into how the court will operate and what lawyers can do to prepare for the upcoming changes.

SIGNIFICANT CHALLENGES FOR FAMILY JUSTICE The Family Court Proceedings Reform Bill has passed, with the changes expected to take effect in March 2014. Justice Minster Judith Collins says the changes will modernise the family justice system and make it more accessible to those who need it. Ms Collins has described it as the first step in the creation of a modern justice system which is more focused on children and vulnerable people. The bill makes significant changes to the Care of Children Act 2004 (COCA) and consequently to the structure of the Court and the pre-court processes. The Law Society has been, and remains concerned about the removal of the right for people to be legally represented in the entry and early hearing stages, and the imposition of significant fees and costs for Family Dispute Resolution, Lawyer for Child and report writers costs. Law Society Family Law Section chair Garry Collin says these changes will disadvantage ordinary New Zealanders who need to resort to the Family Court at one of the most stressful times of their life. “It creates a barrier to justice for ordinary New Zealanders who have done no wrong but need help in a time of crisis and distress,” Mr Collin says. The big question now is how the Family Court is going to operate, and what lawyers can do to limit the impacts on the children, their clients and their own practices. Mr Collin says although the general structure of the court is known, the new Family Court rules are yet to be promulgated. He says that hopefully the rules should be available by the end of this year. “Once the rules have passed, we will then know exactly how the Family Court will look. I think what we can say, quite clearly, is that the court will be significantly changed. All of the family dispute resolution proceedings will be out-of-court processes, and lawyers will be unable to represent parties in the initial part of the in-court processes in most cases,” says Mr Collin. Significant challenges for the court system include dealing with an expected influx of selfrepresented litigants, which will put stress on both the parties and court staff.

· LawTalk 833 · 6 December 2013

“I think we can predict that there will be significant impacts on the judiciary. There is a danger that there will be additional delays within the court system and that judges will be overworked. They are going to have to cope with a great deal more than they currently do.” Mr Collin says children’s views won’t be independently represented in FDR which “I continue to maintain is a breach of our obligation under UNCROC”. “The important role that lawyer for child plays in ensuring that the voice of the child is going to be heard is going to be lost in the FDR process.” Mr Collin says the Family Law Section is worried for those who have been subject to violence, or are in any way vulnerable. They are going to experience real difficulty and anxiety as they try and navigate the new system. There is concern that people will simply drop out of the system, lose contact with their kids and have “inappropriate orders made”. There are also major challenges for family lawyers under the new regime. Mr Collin says he expects a loss of work in all the pre-court stages and a reduction in legally aided and lawyer for child work. “Lawyers are going to have to look very seriously at the makeup of their work. People who were reliant on a lot of Care of Children Act work are going to have to explore the options that exist, to broaden their client bases. “I think there will be an opportunity to look very closely at the act and the rules and see what opportunities are there to maintain their work flow. We cannot rely on government paid income. There is need for lawyers to look at diversifying their practices”, says Mr Collin. “There remains significant uncertainty over the next 12 months. It will take that period to bed itself down,” he says.

NEW SYSTEM DESIGNED TO HELP PEOPLE The changes to the Family Court are “Improved information services and court forms designed to help people come to amicable decisions are being designed to help people navigate the out-of-court, says Lara Ariell, Ministry of Justice court system in routine matters. If a case goes General Manager Performance and Improvement to a hearing, parties are legally represented, for Courts and Tribunals. and a judge is able to involve lawyers earlier in The Ministry of Justice ran a road show around the process, where the parties need assistance. the country in November giving a general overview “People will have taken part in the Parenting of the system. More detailed training for lawyers, Through Separation (PTS) course and FDR at the other providers and ministry staff will be available front end and will have had the opportunity to in February. sift through a lot of the issues and really clarify Ms Ariell says the changes mostly affect Care of what they’re looking for the court to decide on. Children Act applications, which make up roughly Whereas at the moment, there is a raft of issues 40% of the Family Court’s business. that the judge needs to sift through,” she says. She says the changes are “repositioning the FamMs Ariell says the changes will help people in ily Court as part of wider the Family Court, “be a lot family justice system, clearer about what they I T ’ S IMP O RTA NT encouraging people to need judicial decisions reach agreement outside about”. TO ACK NOWLED GE of court and freeing up ENTRY PO I NTS T H AT THERE A RE court space to focus on serious cases that really “ I t ’s i m p o r t a n t t o LOTS O F FA MILY need judgement or interacknowledge that there vention.” The changes D I S P U TES THAT A RE are lots of family disputes are likely to take effect that are already settled in March 2014. in the out-of-court space A L R E A DY S ETTLED Ms Ariell says the that we don’t hear anyI N T H E O UT- O Fministry is currently in a thing about,” says Ms procurement process for COU RT S PAC E TH AT Ariell. Family Dispute Resolution “We also know that a (FDR) suppliers, and this huge number of people W E DO N’T H EA R is expected to be comdon’t come to court as pleted by the middle of their first point of inforA N Y THING A BO UT December. mation around what The ministry is also designing a reporting manhappens if they’re separating.” agement system for the out-of-court services, so The ministry is revamping its website with that key events can be tracked. This system is more plain English information on family justice expected to be rolled out in March. matters and beefing up its contact centre. The regulations relating to FDR have been “Where there are cases involving risk factors passed and gazetted, and the ministry is working or urgency, people will still be able to have direct on amendments to the Family Courts Rules. access to court. What we’re really talking about Ms Ariell says the ministry believes a posis an expanded range of out-of-court services, sible increase in self-represented litigants is some information about how those out-of-court manageable. services are funded for eligible people, and more

LawTalk 833 · 6 December 2013 ·

certainty around the tracks for when people do have to go to court,” says Ms Ariell. S E L F- R E S OLU T ION P R OC E SS

dispute resolution organisation, one of which is the New Zealand Law Society. Accreditation will ensure that mediators are of a high quality. Providers will contract with, or be employed by, FDR suppliers to supply most FDR services. (Privately funded FDR services may be provided directly by a provider to the public). Tenders for FDR suppliers closed in November.

The existing providers will continue to deliver the PTS education course, which is free and helps people understand children’s needs and provides advice on how to help children adapt to separation. The course is compulsory for those who want to LEG A L SUPPO RT I N make an application to the court where agreement O UT-O F-CO URT SPACE has not been reached, unless an exemption exists. Where risk factors are involved cases will go People in dispute will need to know what their through the without notice process. Attendance legal options are and what they’re entitled to. at PTS is recorded in the management system The legal support can cover general rights described above. and options, guidance “The course provides S IM PLE T R AC K C AS E S about end-to-end justice tips on communicating process, and help with with children and excompleting any forms ARE I N T E N D E D TO partners and provides should parties proceed B E D E A LT O N T H E options for working out to court. care of child arrange“If people want to PAP E R S BY A J U D G E ments,” says Ms Ariell. “If engage a lawyer indepenthe parties want to, they dently, they’re absolutely W ITH PLA I N E N G LI S H free to do that,” says Ms can work together with the new skills they’ve got Ariell. QUE ST I O N N A I R E through the PTS course to FUNDI NG maintain that agreement. STY LE A FFI DAV I TS . If they are not so comfortGovernment funding is able with that, they can available for FDR, preP EO PLE R E PR E S E N T apply through the court paratory counselling for to have a consent order FDR and legal support. T H E M S E LV E S . made,” says Ms Ariell. People can apply for According to the ministry, quite a few people do funding through their FDR provider or lawyer. end up in the Family Court to get a consent order A simple eligibility test for funding with income and Ms Ariell says it wants to make sure that the thresholds will apply. An online calculator that process of getting that order is as streamlined people can use to self assess is being developed. as possible. FI LI NG DO CUMENTATI O N FAMILY D IS P U T E R E S OLU TI O N An urgent or high-risk situation will automatically (FDR) send people through the “without notice” track, FDR starts with an assessment of the two parties’ readiness for mediation, along with the issues they have, to determine and whether mediation is an appropriate option for them. Some people may be exempt at this point if they are unable to participate effectively. If the FDR provider feels they could benefit from preparatory counselling before going through mediation, he or she will refer them to a counsellor. FDR is also compulsory for those who want to apply to the court unless an exemption applies. FDR participation will be recorded in the management system. FDR providers are accredited by an approved

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and lawyers can file documents for people in this case. Ms Ariell says for more straightforward matters, there are “simple” and “standard” tracks through the in-court process. Parties will file applications for themselves. To help people do so, the ministry is developing a new range of court forms. People can use the legal support service to have help with completing forms and if not eligible for legal support they can engage a lawyer privately. “When people file those applications forms they need to prove that they’ve completed PTS and FDR and the standard filing fees and fee waivers that

we’ve got in place at the moment in the Family Court apply,” says Ms Ariell. S I M PL E T RACK The “simple track” is for people who have reached agreement and want a consent order made or where there are undefended proceedings. Cases are intended to be dealt on the papers by a judge with plain English questionnaire style affidavits. People represent themselves on the “simple track.” STA N DA R D T RAC K Where people have not been able to reach agreement outside of court the standard track is the process that applies in court, except in the case of without notice applications. In most cases the person applying for an order will need to have attended PTS, and both parties will have taken part in FDR. A judge has a range of options for managing standard track cases. Judges can direct people to an issues conference where they represent themselves, or to a settlement conference in which they can represent themselves or be legally represented if the judge allows. Where the judge allows legal representation, parties can apply for legal aid. A judge can also order specialist reports or appoint a lawyer for child.

When it gets to the stage of a formal hearing, both parties are entitled to legal representation and can apply for legal aid. WI TH O UT NOTI CE TRACK Nothing changes structurally in the Family Court in these cases. The “without notice track” is where there are risk factors and urgent situations, or concern for safety of children. A judge can shift the case from the “standard” to “without notice” track if he/she thinks there are risks involved. A lawyer, lawyer for child, and legal aid are available. FURTH ER O PTI O NS FO R JUDG ES WI TH I N TRACKS A judge can refer people back to PTS or FDR if they haven’t done it within the last two years or one year respectively. With consent, a judge could send the parties back to FDR or PTS even if they have done it. CO URT COSTS A cost contribution order can be made by a judge. Ms Ariell says a judge must now consider some of the cost of services (specialist reports, appointment of lawyer for child or lawyer to assist the court) and people may be ordered to contribute up to a third each. The Crown will pay at least a third of the costs.

CHANGES NOT ALL DOOM & GLOOM I’m not all doom and gloom, but i do think that lawyers will adjust pretty quickly if they’re on their game,” says Otago University Law Dean, Mark Henaghan. “I have two major concerns about the reforms,” Professor Henaghan says. “One is that there is inevitably a power imbalance between parties at the end of a relationship and this can mean when dispute resolution is carried out, one of the parties may not feel as confident as the other to express their real feelings and concerns. They may compromise more easily than if they had a lawyer beside them protecting their rights and interests. “My second concern is that without access to good legal advice for both parties we may be creating a situation where access to justice is compromised. By access to justice I mean access to your legal rights as laid down by legislation. “We have always prided ourselves in this country that every citizen has the right to access justice and once that right is undermined there is a potential erosion of our family justice system which can lead to feelings of unfairness and being left out and simply no longer believing that the system can provide justice for all. “I have great confidence that legal professionals will fight very hard to ensure that the system is just and I hope they are given unconditional support by the legal profession, public and by government for this important battle.” Professor Henaghan says practical links in the Family Court changes haven’t been drawn up yet and in his view the out-of-court process doesn’t make sense. He says in the current system, counselling coordinators work with lawyers in unison, but now that the new process says people can’t go straight to court in most cases and have to go through a non-court process first, it creates a “disconnect”. It’s good to have help with the emotional upheaval of a marriage or relationship break-up, says Professor Henaghan, but people will still want a legal document for the care of children arrangements, property, and money. “Often when people go through these processes, people at the end of it want to reach some sort of agreement

· LawTalk 833 · 6 December 2013

and with most of those people wanting to tie that up legally.” The current process sees people engage a lawyer, go to counselling then go back and draw up agreements or consent orders. The new system puts limits on when lawyers can act for parties in Care of Children matters in terms of taking the matter to court. It doesn’t prevent lawyers giving legal advice, preparing documents and negotiating on behalf of clients. “The beauty of having a consent order or even a legal agreement is that it’s something people can fall back on. When people are arguing over these little things – like how many days they spend with their children, they need something in writing to clarify it. You can’t assume that going off to dispute resolution will resolve that, because they’ll have different understandings of it, and it’ll all break down again if it is not carefully drafted into an agreement or consent order.” Relationship property issues are often raised along with issues related to care of children. Professor Henaghan says dispute resolution providers can guide parties through relationship property issues, but under s21 of the Property Relationships Act 1976, separate legal advice is required for the agreement to be enforced. “They would have to go to a lawyer for that. The idea that parties won’t need to go anywhere near a court or lawyer just doesn’t make any sense. “It’s idealistic and I think it’ll lead to a bit of chaos,” he says.

Lawyers will need to be clear and transparent about what legal advice will cost, says Professor Henaghan, and explain what kind of advice they give, which he says is a “positive thing”. “ We need to think about what service we’re actually providing and how it is benefiting the clients. If we do that, things will turn around. “There’s no point burying our heads in the sand and saying it’s all going to be a disaster. Good legal advice early on in a family dispute is much more likely to lead to good outcomes. Nothing in the new legislation prevents that. The legal aid rules for giving this advice have changed and that will be a disincentive for some to do this work,” Professor Henaghan says.

L AW S OC IE T Y A P P R OV E D AS AN ADRO The New Zealand Law Society has been appointed an Approved Dispute Resolution Organisation (ADRO) by the Secretary for Justice. The reforms to the Family Court will set up a new Family Dispute Resolution (FDR) service for dealing with disputes which are principally about parenting and guardianship arrangements. Mediators who want to provide either private or state funded FDR services under the new family justice system from March 2014 will have to demonstrate that they meet the requirements and competencies to be an FDR provider and must be accredited by and belong to an ADRO. The Law Society will accredit suitably qualified practitioners who wish to become FDR providers, and will provide ongoing professional development opportunities, and a complaints and discipline system. For more details, contact the Law Society’s Family Law Section, Phone (04) 472 7837, email family@lawsociety.org.nz.

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LawTalk 833 · 6 December 2013 ·

Our Profession, Our People Law firms and practitioners are invited to send in announcements of appointments, promotions, retirements or other information for this column. Submissions may be sent to editorial.lawtalk@lawsociety.org.nz. If possible, please include colour photographs of any persons mentioned. Image files should ideally be print resolution of 300dpi, and must be a minimum of 500 pixels wide for headshots, 2000 pixels wide for group shots. You can find the dimensions of an image in Windows by right clicking on an image file, going to ‘Properties’, and clicking on ‘Details’, or on a Mac by right clicking on the image file in the Finder and clicking ‘Get Info’. JPEG or TIFF formats are acceptable, BMP or GIF are unacceptable. If digital files are unavailable, hardcopy photographic prints of minimum 10cm x 15cm may be sent to LawTalk, DX SP20202 or PO Box 5041, Lambton Quay, Wellington 6145. We will endeavour to return hardcopy photographs, provided a return address is included.

· LawTalk 833 · 6 December 2013

P E O P L E I N T H E L AW

The President of the Law Society’s Canterbury-Westland branch, Rachel Dunningham has been appointed a High Court Judge. Ms Dunningham graduated with an LLB (Hons) 1st Class from Canterbury University in 1996 and became a solicitor at Buddle Findlay in Christchurch, where she was already employed as a law clerk. In 2005 she became a partner of that firm. Before studying law, she was employed in various teaching roles with the education sector from 1982 to 1994. Her main practice area has been in local government and resource management law, commercial disputes and personal and estate litigation. She has particular expertise in water-related issues having acted for Rangitata Diversion Race Management and Central Plains Water in the context of Water Conservation Order hearings and large scale consent applications under the Resource Management Act. Ms Dunningham is a member of the New Zealand Law Society Legislation Committee and the Resource Management Law Association. The new Judge will sit in Christchurch. Deputy Solicitor-General (Criminal Group) Cameron Mander has been appointed a High Court Judge. Mr Mander graduated with an LLB from Victoria University in 1985 and was initially employed at Parliamentary Services, in the Office of the Clerk of the House of Representatives, before joining Wellington firm Luke Cunningham and Clere as a staff solicitor the following year. In 1989 he travelled to London where he was admitted in England and Wales and employed as a litigation solicitor by Clifford

Chance. While in England, he obtained an LLM (Hons) from Cambridge University. In 1992 he returned to New Zealand and rejoined Luke Cunningham and Clere as a partner, practising as a senior Crown prosecutor and litigator in support of both the Crown Solicitor and the firm’s private practice. In 2007 he joined the Crown Law Office as a Deputy Solicitor-General where he was responsible for the work and litigation practices of both criminal and, until recently, human rights teams. As Deputy Solicitor-General, he led the oversight and supervision of the Crown Solicitors Network, was a member of the Chief Justice’s Criminal Practice Committee and the sub-committee of the Rules Committee drafting the rules for the Criminal Procedure Act 2012, and was responsible for the Crown’s representation before the Royal Commission into the Pike River Mine Tragedy in 2011. The new Judge will sit in Christchurch. Wellington lawyer John Hassan has been appointed an Environment Judge and District Court Judge. He will be sworn in on 31 January in Wellington and will sit in Christchurch. Mr Hassan is a partner of Chapman Tripp specialising in resource management and environmental law. He was previously inhouse lawyer for the Ministry of Works and Development (1985-88) and the Ministry for the Environment (1988-91), where he was principal legal adviser during the development of the Resource Management Act 1991 (RMA). In 2009 he was appointed as a panel member by the Local Government and Environment Select Committee to audit and advise on the drafting of the Resource Management Amendment Act 2009 and he was a reference group member advising the Environment Minister on RMA reform proposals in 2011. As well as law reform, he has represented government agencies, Continued on page 14...

HAMISH MCINTOSH has commenced practice as a Barrister, as from 1 December 2013, at: Woodward Street Chambers Level 6, 1 Woodward Street PO Box 10-789 Wellington 6011 Mobile 027 493 6631 hamish.mcintosh@woodwardstreet.co.nz

Our Profession · Our People

Environment Court under spotlight

Otago University senior law lecturer Ceri Warnock is the 2014 New Zealand Law Foundation International Research Fellow. Her research, which will be conducted in New Zealand, Australia and the United Kingdom, is entitled The New Zealand Environment Court: Importance and Limitations. The objective of the study is to conduct the first comprehensive objective legal

analysis of the New Zealand Environment Court in its 36-year history. “The general objective of this research is to fill that gap and to foster an informed debate about the future role of the court,” Ms Warnock says. It will look at the question “how do we make sense of the seeming paradox between the importance of the Environment Court in developing environment law and the limitations within which it works?” Following her research, Ms Warnock proposes to publish a monograph of it. The Resource Management Law Association (RMLA) has also expressed an interest in disseminating this publication through its website and Ms Warnock has agreed to present her research findings to a future RMLA conference. After being admitted in England and Wales in 1993, Ms Warnock practised as a barrister in Manchester from 1993 to 2003.

In 2005 she gained an LLM with first class honours from Auckland University. She then joined the Otago University Law Faculty in 2006 as a lecturer, becoming a senior lecturer in 2009. Ms Warnock is a co-author, along with Abby Suszko, of Butterworths Student Companion: Resource Management (2013) LexisNexis. She is also author of the forthcoming Resource Management Law in New Zealand, to be published in 2014 by LexisNexis. The New Zealand Law Foundation International Research Fellowship is New Zealand’s premier legal research award. Valued at up to $125,000, this fellowship is awarded annually to enable an individual of outstanding ability to undertake legal research that will make a significant contribution to New Zealand. The award was made at the Law Foundation’s Annual Awards dinner in the Grand Hall at Parliament on 4 December, presented by the Minister of Justice Judith Collins.

Cleary Memorial Prizewinner Sam McMullan is the 2013 winner of the New Zealand Law Foundation Cleary Memorial Prize. Mr McMullan graduated from Victoria University in 2010 with an LLB with first class honours and a BA and is currently studying towards an LLM at New York University. He has worked part-time for the Law Commission and has clerked for Justices Wild and Dobson and Associate Justice Gendall. From December 2012 until July this year he worked as a solicitor at Meredith Connell, primarily as a Crown prosecutor. His volunteer contribution has included significant work with ambulance services. After volunteering with St John Ambulance for around 12 months, he was a volunteer

Special Conditions

paramedic with Wellington Free Ambulance for more than two years. While in Auckland, Mr McMullan volunteered for Land Search and Rescue. His mentoring has included working in the Manaaki Pihipihinga Te Putahi Atawhai programme. While at university, he was student editor for Victoria University’s Journal of Public and International Law, was a student volunteer at the Wellington Community Law Centre and in 2009 was elected Education Vice-President of the Victoria University of Wellington Law Students’ Association. He was also involved in Just Speak. The Cleary Prize honours the memory of Sir Timothy Cleary, past President of the Wellington District and New Zealand Law

Societies and a Court of Appeal Judge until his death in 1962. It recognises the example Sir Timothy’s own life set for young people entering the profession.

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Firth Consultancy Ltd LawTalk 833 · 6 December 2013 ·

Our Profession · Our People industry, local government and community groups before councils, the Environment Court, boards of inquiry and the High Court in relation to major infrastructure works, plan changes and consent and appeal hearings. He is a founding co-author of Brookers Resource Management. Mr Hassan is an accredited independent commissioner and his personal interests include Forest & Bird (contributing financial member) and Life Thrust Trust (trustee and committee member). Sir Ian Barker has been appointed chair of the new Snapper 1 Strategy Group, which will work on a long-term plan to manage the fishery. Wellington lawyer Lucy Elwood has won the Wellington branch of the Institute of Directors’ Aspiring Director Award for 2013. A science graduate as well as a lawyer, Ms Elwood draws on experience in a major national law firm and as in-house legal counsel in both the public and private sectors. She and husband John Elwood are now principals in their own practice, Elwood Law. Lucy Elwood (right) receiving the Institute of Directors’ Wellington branch Aspiring Director Award from IoD Wellington branch chairman Phillip Meyer.

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A new alliance of senior practitioners working together to provide advice to the public sector, Interwoven Law was launched on 19 November. Interwoven Law is not a single law firm, but an alliance of lawyers from separate legal practices who have come together to share resources and experience. The members are Best+Hancock,

sole practitioners, Elwood Law, Jonathan Kaye Law, Palairet Law, Robert Buchanan Public Law and Van Rij Law. The members of each practice have worked in or around the public sector for most of their careers. The Interwoven Law members are particularly experienced in public law, procurement and contracting, technology law and governance.

ON THE MOVE

Nick Bragg has rejoined Buddle Findlay’s Auckland offi ce as a senior associate in the corporate and commercial team following several years practising in Tokyo and New York as well as in an in-house capacity at one of New Zealand’s largest banks. Nick has experience with cross-border transactions effected through a variety of corporate and financing structures. Continued on page 16...

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· LawTalk 833 · 6 December 2013

Our Profession · Our People

Thank you to the profession By Andrew Bridgman At this time of the year I want to take the opportunity to thank you all for engaging with us on a number of different issues during 2013 – your engagement has really made a difference. One of the biggest changes this year was the implementation of the Criminal Procedure Act 2011 on 1 July and we couldn’t have done this without your support. It was a testament to the way we worked together that on 1 July, things landed relatively smoothly. I want to thank all those who worked with us, attended our seminars and are applying the new legislation every day. In particular thank you to the Law Society, Christine Grice and Jonathan Temm for their constructive input and time invested in these reforms. I’m keen for the ministry to build on this way of working together. More and more, we need to be looking out and understanding

the needs of the people we work with and who use our services. We want to make it easier for people, so that if they do have an issue that needs to come before the justice system, we can help them deal with it quickly so they can get on with their lives. As I’ve said before, this isn’t just about speed, but it is a big part of it. People shouldn’t have to stay in the system for longer than they have to – and we need to work together to make sure we avoid unnecessary delay. We’ve started to turn the corner after several years of going backwards, and we’re now reducing waiting times across the board. Reducing waiting times further will be our focus next year as we work towards our target of 50% faster services by 2017. It’s an ambitious goal, but it’s necessarily ambitious as it challenges everyone in the ministry to think differently about our work. A big part of this is thinking about how we can work more effectively with you and the judiciary towards achieving this goal.

Report will focus on people with disabilities Acclaim Otago Inc, a support group for injured New Zealanders and their families with members throughout New Zealand, has been awarded the annual New Zealand Law Foundation Shadow Report Award. This funding will be used to produce and present a shadow report to the United Nations on New Zealand’s compliance with the Convention on the Rights of Persons with Disabilities. Shadow reports enable domestic organisations to draw attention to issues that New Zealand has excluded from its formal report to the UN on its compliance. The report will focus specifically on the experiences of

injured New Zealanders, particularly privacy, access to justice, integrity of the person and meaningful vocational rehabilitation. “By raising and addressing New Zealand’s lack of compliance with the convention, we aim to reform the law and improve the experiences and outcomes of people who have disabilities caused by injury in New Zealand,” says Dr Denise Powell, spokesperson for Acclaim Otago. “This could result in significant benefits for a large group of people who have virtually no ability to take action on their own behalf due to problems within the current legal framework. The report will provide

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Our relationship with lawyers is critical to us and we value it. Individually, and through the Law Society, you have some of the best ideas for improving justice and we want to hear from you. In the meantime and importantly, Christmas is coming. I hope you get to have a relaxing break with family and friends. I sincerely look forward to working with you in the New Year. Andrew Bridgman is the Secretary for Justice.

for a collective voice that consolidates the experiences of marginalised individuals who otherwise wouldn’t be heard. “New Zealand was one of the few developed countries that elected not to sign the optional protocol to the convention allowing individual complaints to the UN, and so a shadow report is one of the few means available for drawing international attention to this issue,” Dr Powell says. “Available evidence suggests that there are structural problems with the legal framework and substantive law around personal injury in New Zealand that affect the experiences and outcomes of injured people,” says lawyer Warren Forster, who will co-author the report with Dr Powell.

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LawTalk 833 · 6 December 2013 ·

Our Profession · Our People Richard Pidgeon has commenced practice as a barrister sole, having worked as a generalist litigator in several Auckland firms (including as partner at Sinisa Pidgeon Law and Pidgeon Law). He will be based at Walker Wayland Centre, and will continue his general civil litigation practice with an emphasis on administrative law, the civil aspects of family law, equitable remedies and urgent relief, property and company litigation (with a specialty focus on religious property dispute resolution). Tanya Speight has joined Wynn Williams as senior associate in the commercial team. Tanya brings corporate and commercial experience from national and international Tanya Speight positions. She specialises in commercial contracts, technology, construction contracts, trusts and, retail leasing. Tim Mackenzie has been promoted to senior associate in the litigation and dispute Tim Mackenzie resolution team. Tim’s practice incorporates a range of civil and employment litigation across a wide range

of industry sectors. Nadine Dahren has been promoted to associate in the private client team. Nadine specialises in property, small business and private law. Nadine Dahren She is experienced in property transactions. John-Luke Day has been promoted to associate in the litigation and dispute resolution team. John-Luke specialises in complex commercial and trust John-Luke Day disputes as well as debt collection. Henry Holderness has been promoted to associate in the litigation and dispute resolution team. Henry specialises in commercial dispute resolution, including Henry Holderness body corporate disputes arising as a result of the Canterbury earthquakes. Pip Allan joins as a solicitor in the insurance team and Jo Mechaelis-Wall joins as a solicitor in the private client team. Baldwins Intellectual Property Chief Executive Michael Vukcevic has stepped down for personal reasons. The firm’s chair, Sue Ironside, has assumed responsibility for day- to-day operations.

New committee convenor

Marcus Beveridge

In the last issue of LawTalk, we ran an incorrect photograph of Marcus Beveridge, who is the new convenor of the Immigration and Refugee Law Committee. LawTalk apologises for this error. The correct photo of Mr Beveridge is printed above.

Welcome to the profession The New Zealand Law Society welcomes the following recently admitted lawyers to the profession.

Nelson Lucy Leadbetter

Christchurch Jonothan Arthur Austen Gould Benjamin James Pryor

Hamilton Lucy Leadbetter who is pictured with her moving counsel Kim Starnes (left), was admitted in the High Court at Nelson by Justice David Collins on 6 November.

· LawTalk 833 · 6 December 2013

Tangiwai Baker

Jacqueline Rachel Coward George Henri Davies Kathleen Anne Douglas Chelsie Maree Foley Dew James Haley Mae Marama Mariu Ashniel Rai Prakash Louisa Anne Roe Graeme Peter Tanner Melissa Ann Tippett Nikhil Ullal

Our Profession · Our People

Iwi co-governance researcher wins award Rachael Harris, who is researching co-governance arrangements between iwi and the Crown, has won the New Zealand Resource Management Law Association’s scholarship. The Canterbury University postgraduate’s research is seeking to explore the future of co-governance of natural resources in New Zealand utilising two case studies where the Crown or their agencies have entered into co-governance arrangements with iwi. She is studying the history of Ngāi Tahu and Ngāi Tūhoe governance of natural resources from the Treaty of Waitangi, through each iwi’s Waitangi settlement to the co-governance they are involved with today. She will examine the effectiveness of two current co-governance arrangements in terms of how the partnership is working to promote iwi interests. The first case study is the partnership between Ngāi Tahu and the Christchurch Earthquake Recovery Agency (CERA) and the second being the agreement governing Te Urewera (formerly a Crown-owned National Park) now being jointly managed by the Department of Conservation and Ngāi Tūhoe. Her objective is to provide comment on how co-governance arrangements are developing and perhaps where the future of co-governance of natural resources in New Zealand lies.

From student to judge

The year in which the most famous example of an illegal number was developed. If a number represents information which is forbidden by law for one to possess or distribute, that number is said to be illegal. In 2001, the binary representation of a large prime number corresponded to a compressed version of C source code which implemented the DeCSS decryption algorithm. As this algorithm can be used to circumvent a DVD’s copy protection, the number used to generate the code was deemed illegal.

Auckland University student Joan Mosatalla is about to move straight from her studies to being a judge. The 37-year-old Masters student returns to her home in the Philippines this month to become the youngest trial court judge in the province of Albay. “I didn’t really expect to be appointed a judge,” she says. “Such an appointment is very political in the Philippines and I didn’t know anyone who could back up my nomination. When I found I’d been shortlisted from a field of about 20 applicants, I asked the Professor [Warren Brookbanks] to write a letter to the President for me and he was my main [referee]. I am very grateful for his support and I rang him straight away when I found out I had been appointed.” Joan is studying at Auckland University as a recipient of a New Zealand ASEAN Scholarship. She arrived in February and will complete her Masters studies specialising in Public Law early next year.

At the 2013 Wellington sentencing advocacy competition (from left) the winner Aric Shakur, Justice Clifford, Lisa Hansen from the New Zealand Bar Association and runner-up Sean Mallett.

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Aric Shakur emerged the victor in the recent Wellington High Court Sentencing Advocacy Competition. He defeated Sean Mallett in a closely contested final, judged by Justices Mallon and Clifford. The scenario involved a young gang member trying to step away from gang life who had committed motor manslaughter. This annual competition is sponsored by the New Zealand Bar Association and the Ministry of Justice. The competition is

run by judges’ clerks, in conjunction with Victoria University. This is the sixth year of the competition. The idea of the competition is to give students the opportunity to appear against each other and in front of High Court Judges in a sentencing exercise. The competitors receive a mock sentencing file, including a summary of facts, pre-sentence report and victim statements. They must file written submissions and present oral submissions. LawTalk 833 · 6 December 2013 ·

Practising Well

How business mentoring helped SMEs post earthquake By Peter Boyes The 7.1 magnitude earthquake which struck the South Island of New Zealand at 4.35am on 4 September 2010 and the subsequent aftershocks, notably the magnitude 6.3 on 22 February 2011, left 185 people dead and more than 1,500 people injured, 164 of them seriously. The total cost to insurers of rebuilding will be more than $40 billion and some economists have estimated that it will take the New Zealand economy more than 50 years to recover. Small to medium sized enterprises bore the brunt of the economic upheaval. Business Mentors New Zealand (BMNZ), the nation’s number one not-for-profit mentoring organisation, issued an alert immediately after news of the disaster broke to its 300 Canterbury based mentors putting them on standby to help the region’s SMEs get back on their feet after the earthquake crisis. Canterbury local BMNZ agent, Jill Taiaroa says: “It’s at a time like this that small and medium sized businesses really see the value an experienced volunteer mentor can add to their business. Our mentors are there to help them formulate a plan for getting their businesses running again. We were geared up to help them cope with this crisis and, with a business mentor, they didn’t have to face it alone. “Over the following months and sometimes years, SMEs in the Canterbury region needed advice on how to tackle cash flow issues and an analysis of where their business priorities should lie. Some business owners found it difficult to cope with a suddenly very challenging business environment, which is where our experienced business mentors were a real asset. “It is a key part of our function to enhance small business sustainability by mobilising volunteer resources, utilising the skills and experience of successful business people to meet community needs by supporting the creation and retention of employment, and the alleviation of financial

· LawTalk 833 · 6 December 2013

hardship in urban and rural communities.” BMNZ implemented a Government-sponsored free client code concession, which waived the usual $150 registration fee following the September 2010 earthquake. The funding provided by the Ministry of Economic Development enabled BMNZ to assist over 700 SME businesses with free payment codes up to the conclusion of the scheme at the end of December 2012. “Our team on the ground has provided fantastic advice, assistance and support to our clients,” Jill Taiaroa says. “They are committed, passionate, empathetic individuals who realised the need for

Running your own business can be a lonely place at the best of times but during a disaster it is even more so. Having trusted advisers to hand was vital their expertise in circumstances that the business community had not experienced nor dreamed would be an eventuality in Christchurch.” And it looks like the recovery is well under way. Recent news reports indicate that Canterbury businesses are bucking a nationwide drop in business numbers. According to Statistics New Zealand an average of 300 more businesses are opening their doors than shutting up each month. According to Jill Taiaroa, the key issue for SME businesses in the Canterbury region has shifted from one of very difficult business circumstances to one of uncontrolled growth opportunities. “This requires businesses to have

structure, discipline and capability which is not always available,” she explains. “So the focus of mentoring in Canterbury addresses issues of financial management, planning, compliance, sales and marketing. Unmanaged growth to SME businesses without a wide array of business skills can be just as challenging as an extreme business environment.” Dave Sewell, volunteer business mentor with BMNZ in Christchurch has kept a blog since the first earthquake. In it he says: “When disaster like this strikes, all I can say is that it really does test your commitment to your business to the absolute limit. “The biggest threat is the owner not being focused on moving forward. In times of disaster, it is amazing how many business owners quit because they have been offered another job ‘just until business picks up’. “As tempting as this may sound in the short term, they are removing their focus from their business, thus delaying that time when their ‘business picks up’. Do this at your peril. A divided focus will give you diluted results and diluted results may be the difference between your business surviving or becoming another statistic of the disaster.” Stephanie Evans, of Canterbury-based skincare specialists Oasis Beauty, used Business Mentors when she first set up her business 15 years ago and turned to a business mentor in the immediate aftermath of the earthquakes. “We had $22,000 worth of damage to our business premises,” she explains. “Just having someone to talk to that you could trust and have confidence in was critical. After any disaster, people are working together on little more than goodwill. You really have to build up those relationships and that goodwill before the disaster happens. “Running your own business can be a lonely place at the best of times but during a disaster it is even more so. Having trusted advisers to hand was vital.” Ms Evans points out that even relatively unaffected businesses in Canterbury faced

real problems with unpaid invoices and cancelled orders because the wider market assumed the whole region had stopped operating. “Many Canterbury businesses survived the quakes because of the determination of the business owners and their staff,” Ms Taiaroa adds. “The mentoring service saw a lot of cash flow related distress among SMEs in the region. There was a delay running through the whole system that caused the problems. “There were so many people in the chain, from the EQC, the larger players and then a lot of sub contractors, that there were inevitable long delays which impacted on smaller companies’ cash flow making it very difficult for them to retain staff until the work was approved. It got better as time went on, but some of these companies were on a knife edge – just managing to pay their staff and keep going.” Many survived in spite of being insured, rather than because of it. There are still serious issues around insurance affecting business in the region, in particular, the often crippling slowness of insurance payouts. About 85% of the businesses surveyed by Recover Canterbury cited insurance claim difficulties as a major issue. Even 18 months after the February 2011 event, 26% said insurance was still a significant issue. BMNZ says that a key lesson for businesses from the Canterbury experience is the need to have a disaster recovery plan. SMEs should become familiar with their local economic development agency, council agencies, tenancy tribunals, government agencies and chambers of commerce. As Ms Evans says, building strong relationships around your business makes an immense difference. Canterbury businesses that already had good relationships with their building owner were best able to make decisions, based on solid, rapid and honest communication. And Mr Sewell tells his mentoring clients: “One thing we have learnt from successive earthquakes is the absolute need for a financial buffer, money for that ‘rainy day’. “If you can put aside or have access to between three and six months’ worth of operating costs, you will be giving you, your staff and the business the best chance of surviving a major disaster.’

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Peter Boyes is a volunteer business mentor and director of Boyes Public Relations, a specialist marketing communications consultancy. For more information visit www.businessmentors.org.nz. LawTalk 833 · 6 December 2013 ·

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Law Reform Report

Proposed Social Security Amendment Bill measures lack justification Proposed amendments to the Social Security Act lack justification and may breach international human rights obligations, the New Zealand Law Society says. In its submission to the Social Services Committee the Law Society raised concerns over aspects of the Social Security (Fraud Measures and Debt Recovery) Amendment Bill. Under the changes, the spouse or partner of a beneficiary who has committed fraud will be liable for the full amount of money so obtained if they benefited, directly or indirectly, from the fraud knowingly, or ought to have known they were benefitting from the fraud. The proposed s127A will make it a criminal offence for a spouse or partner to knowingly or recklessly benefit from a beneficiary’s fraud. Professor Jeremy Finn of the Law Society’s Criminal Law Committee says while there is no objection to proper accountability in

relationship fraud, the amendment imposes Human Rights and Privacy Committee says a more stringent “ought to have known” the Social Security Act currently gives the standard on partners of fraudulent beneficiaries Ministry of Social Development discretion to compared to those partners of other fraudsters. whether welfare debt should be recovered. “The Criminal Proceeds (Recovery) Act The Bill proposes to replace that discretion 2009 establishes a carefully considered with a duty to take all reasonably practicable regime for the recovery of benefits derived steps to recover debt. directly or indirectly from ‘significant criminal It also proposes that in some circumactivity’. This proposed departure from the stances, MSD’s chief executive may disregard Act should be subject to careful scrutiny. No “relevant considerations” when recovering justification is apparent in the Regulatory debt, including the effect of recovery on Impact Statement for the proposed more living standards. stringent standard.” This may impact on New Zealand’s He adds careful scrutiny is also required compliance with its obligations under the for the proposed s127A as there are already International Covenant on Economic, Social laws in place to deal with such actions, and and Cultural Rights and UN Convention on the proposal represents a departure from the Rights of the Child. These include an the general principles of criminal law. obligation to realise the right of everyone “There exist a number of options to penalise to an adequate standard of living including positive acts or intentional omissions by a those on social welfare and their children. fraudulent beneficiary’s spouse or partner “In the Law Society’s view, there would to assist that benneed to be very compelling justification for eficiary to obtain a welfare debt recovery to take precedence benefit or level of over international human rights obligations The Law Society recently filed submissions on: benefit by fraud or and other relevant considerations. Such other offending, to justification is not evident,” says Mr Opie. • the treatment of expenditure incurred for dual income; conceal that offendThe Law Society says it has been con• Credit Contracts and Financial Services Law Reform Bill; ing or to launder strained in submitting on the human rights • Public Safety (Public Protection Orders) Bill; money received.” implications of the Bill as a consequence of • Sentencing (Protection of Children from Criminal Offending) Amendment Bill; Joss Opie of the apparent redaction of the human rights the Law Society’s analyses in the relevant Cabinet papers. • Vulnerable Children Bill; and • New Family Legal Support Service. The submissions are available at www.lawsociety.org.nz/news-and-communications/ Eat, play, work law-reform-submissions • The Law Society addressed the Social Services Select At Treadwell Gordon we think we have the Committee on 13 November, on the Social Security balance about right. It’s about supporting (Fraud Measures and Debt Recovery) Amendment Bill. great people to get the best out of life. If The Law Society is currently preparing submissions on numeryou want to have your cake and eat it then ous bills and government discussion documents. Members we want to talk to you. are welcome to contribute comments to the Law Reform Treadwell Gordon – people first Committee, specialist committees and sections preparing the submissions. For a full list of upcoming submission Contact Jacqui Powell 06 349 0570 deadlines and information about how to participate, visit http://my.lawsociety.org.nz/law-reform/work-in-progress.For more information on NZLS law reform activities, contact vicky.stanbridge@lawsociety.org.nz. Wairere House, Cnr Somme Pde & Bates St, Whanganui

Recent submissions & Coming up

· LawTalk 833 · 6 December 2013

Law Reform Report

Busy year for law reform It has been an exceptionally busy year for law reform. In the year to 30 June 2013, the Law Society made submissions on 32 bills (and appeared at 17 select committee hearings), and commented on 53 government discussion documents and three Law Commission papers. It also wrote on a number of occasions to ministers and the Attorney-General on various law reform, rule of law and administration of justice issues. As well as submissions on a wide range of technical reforms, the Law Society made some submissions of particular constitutional significance during the year. These were: A submission to the United Nations’ Human Rights Council on New Zealand’s 2013/14 Universal Periodic Review. The submission stated that “… the valuable mechanisms that promote and protect human rights in New Zealand would benefit from further strengthening”. The Law Society noted a number of legislative measures in the period 2008–2013 which in its view failed to meet New Zealand’s domestic and international human rights obligations, and recommended that these be revisited. The Law Society believes New Zealand must take action in a number of areas to ensure it ceases to infringe or jeopardise human rights and the rule of law. A submission to the Intelligence and Security Committee on the Government Communications Security Bureau and Related Legislation Amendment Bill. This outlined inconsistencies with the rights to freedom of expression and freedom from unreasonable search and seizure under the New Zealand Bill of Rights Act 1990 and with privacy interests recognised by New Zealand law. The Law

Society’s concerns about the absence of The Law Society’s statutory functions clear justification for these changes were under the Lawyers and Conveyancers Act exacerbated by the use of Parliamentary 2006 include “assisting and promoting the urgency. The Law Society is concerned that, reform of the law”. As a voice for the legal in the absence of compelling grounds for profession the Law Society aims to help creurgency, its use degrades the democratic ate better and more workable legislation by quality of the legislative process. The Law providing informed, reasoned and impartial Society recommended that more information submissions on proposed legislation and should be provided to the public regarding the reform proposals put forward by government justification for the changes, further debate agencies and the Law Commission. should be held regarding that justification, New Zealand Law Society law reform further safeguards should be incorporated relies on the hard work and commitment into the law if reforms were to proceed, and of committee members who volunteer their an updated s7 report should be sought from time and expertise for the benefit of the the Attorney-General. The GCSB Amendment profession and the wider community. Bill has now been passed into law. This is a substantial commitment of time A submission to the Constitutional Adviand effort, often under very tight time consory Panel on the Constitutional Review. The straints, and is greatly appreciated. submission outlined a range of views among Feedback indicates that select committees, members of the profession on possible ministers, officials and the Law Commission changes to New Zealand’s constitutional value the Law Society’s submissions. arrangements, and the Law Society’s recomThe Law Reform Report for the year to 30 mendations for strengthened human rights June 2013 is at my.lawsociety.org.nz/law-reform/ and constitutional protection mechanisms. work-in-progress/law-reform-report-2012-13. The Law Society also wrote to the Attorney-General HARMOS HORTON LUSK regarding the New Ze a l a n d P u b l i c Health and Disability Amendment Bill No 2, noting that a Since 2009, Harmos Horton Lusk have been supporting number of features students undertake an LLM at The University of Auckland of the bill, and the with the Harmos Horton Lusk Scholarship in Commercial way in which it Law. The Scholarship, worth $10,000, will be awarded to a student who demonstrates academic merit and the potential proceeded through to contribute to the legal profession. the House under urgency, caused the • Are you contemplating enrolment, or have you recently enrolled in an LLM specialising Law Society disquiet.

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LawTalk 833 · 6 December 2013 ·

Effective Practice

2014 outlook more optimistic than pessimistic

By Geoff Adlam

Over one-third of New Zealand lawyers responding to a New Zealand Law Society survey say they are optimistic about the market for legal services in 2014. Almost half the respondents believe there will not be much change. The survey was sent out with the 200th issue of the weekly LawPoints e-newsletter on 14 November. Lawyers were encouraged to respond with the opportunity to enter a prize draw, and Calina Tataru of Auckland law firm Morgan Coakle was the winner of a 32GB iPod Touch. There were over 200 responses, giving a margin of error of 6.73% at the standard 95% confidence level. Business confidence surveys are plentiful, but those which focus on the New Zealand legal profession are thin on the ground. Because participation was opt-in, the results don’t presume to be totally scientific. However, they are an interesting indicator that perhaps lawyers are more confident than pessimistic about 2014. Which do you think best describes the economic outlook for your legal practice over the next year? 60%

Much improved . . . 2.5% Improved . . . . . . . . . . . 29% About the same . . . . 42% Worse. . . . . . . . . . . . . . . 12% Much worse . . . . . . . .2.0% Unsure . . . . . . . . . . . . . 1.0% Not applicable . . . . . 10%

While almost half the respondents felt the outlook would be similar, a much higher proportion felt that it had improved and had not worsened. A higher proportion of older lawyers tended to feel it was worse, and men tended to feel more positive than women. What are the 2014 hiring plans for the organisation you are working in? It will hire more lawyers than it has at present . 23.3% It will keep the same number of lawyers . . . . . . . . 53.0% It will reduce the number of lawyers . . . . . . . . . 5.0% Unsure . . . . . . . . . . . 18.8%

60%

· LawTalk 833 · 6 December 2013

While a relatively high number of respondents were unsure about hiring plans, only a small proportion said their organisation would reduce its lawyer numbers during 2014. There seemed to be little difference between the views of lawyers in law firms and in-house counsel. How would you describe your views about the market for legal services in 2014? Very optimistic . . . . 2.0% Optimistic . . . . . . . . . . 34% There won’t be much change from the present . . . . . . . . . 46% Pessimistic . . . . . . . . . 12% Very pessimistic. . . . 2.5% Don’t know . . . . . . . . . 3.5%

Like the other two confidence-related questions, while the biggest number of respondents saw little change, the nextbiggest response was positive. Results varied little by age of respondents, but a higher proportion of women were pessimistic.

State of mind and lifestyle The survey also took the opportunity to gather information on how lawyers saw their profession and on recreation. Participants were asked which best described their feelings at present for several statements. The results … I love being a lawyer

60%

What keeps you awake at night? “Making mistakes that affect a client’s claim.” “Worrying about deadline for court processes and the pressure to get everything done on time.” Sound familiar? These are typical of the biggest worries of the lawyers who responded to the New Zealand Law Society LawPoints survey. The question was: “As a lawyer, what is your biggest concern (what keeps you awake at night?)”. The refreshingly honest responses are an insight into common areas of concern. Broadly categorised, the biggest concerns were (in order): workload, making mistakes, Family Court changes, practice management issues, securing enough work, and effectively working with clients. A sample of the comments: • Getting work done accurately within time constraints. Have I missed something! • Whether to take on staff and expand. • Juggling client needs with the admin of a small practice.

Definitely . . . . . . . . . . . 44% Sometimes . . . . . . . . . 46% Unsure . . . . . . . . . . . . 6.0% No . . . . . . . . . . . . . . . . . . 4.5%

60%

It seems that most of the respondents love their job at least some of the time. Women were more likely to love it all the time, and over 51% of respondents aged 51 to 60 love it all the time – the highest proportion for any age group.

•

• • • • • •

I used to worry about winning or losing a case that was about to be heard but now I am too tired and exhausted at the end of a day that I have no trouble falling asleep. Current changes to Family Law, reducing ability of parties to access lawyers at an early stage to try and reduce conflict and obtain a workable settlement with a minimum of delay. The poor salary for staff solicitors and making ends meet at home, without going backwards! Trying to keep up with turn around times because things need to be done faster than they used to. Email etc means people expect quicker responses. Whether my clients feel they are getting value for their money and time spent by me. The reliance of others on the cashflow I generate. The inevitable complaint because it is so easy to complain without justification. Nothing. I sleep like a baby.

Effective Practice I expect that I will work in the legal profession throughout my career Definitely . . . . . . . . . . . 51% Sometimes . . . . . . . . . 26% Unsure . . . . . . . . . . . . . 17% No . . . . . . . . . . . . . . . . . .5.0%

60%

Almost one in five were unsure. As could be expected, the older a lawyer, the more likely the expectation that they would stay in the legal profession. Of lawyers aged under 30, 27.0% were unsure. A higher proportion of men than women were definite. However, about the same proportion of men and women were unsure, with women more likely to respond “sometimes”. I would recommend becoming a lawyer to any young person at school 60% Definitely . . . . . . . . . . . 19% Sometimes . . . . . . . . . 44% Unsure . . . . . . . . . . . . . 9.5% No . . . . . . . . . . . . . . . . . 6.0%

Women tended to be more positive, with 20.8% of men saying they wouldn’t recommend law and 15.3% of women. A high

29.7% of lawyers aged under 30 would not recommend law. Lawyers are unfairly criticised in the media Definitely . . . . . . . . . . . 28% Sometimes . . . . . . . . . 56% Unsure . . . . . . . . . . . . . 9.5% No . . . . . . . . . . . . . . . . . 6.0%

60%

Barristers were far more convinced on this question, with 40.0% responding “definitely” and lawyers aged 51 to 60 were equally adamant, with 39.0% definite. There was little difference by gender.

Overseas travel… When asked if they travelled outside New Zealand in 2013 (or were planning to do so before 31 December 2013), almost two-thirds (62.9%) of lawyers had done so, with 55.0% travelling overseas for a holiday.

And sports! Respondents were asked which sports they had participated in, either socially or more seriously, during 2013.

Social media When asked if they had social media accounts (such as Facebook, Linked In, Twitter or Google+) that they logged into during their working day, almost one-quarter of respondents (22.9%) said they did not use social media at all. The highest number of respondents (37.8%) said they logged into social media on their work computer or smartphone and 18.4% logged into them on their own computer or smartphone during their working day. The remainder (20.9%) said they logged into social media in their own time. The responses show that just under 80% of respondents use social media at some time. Perhaps unsurprisingly, not a single lawyer aged under 30 did not use social media – unlike lawyers aged 61 to 70, of whom 57.9% did not use social media at all. Men were far more likely not to use social media, with 35.7% saying they did not use it, while only 15.3% of women said they did not.

The top 10 lawyer sports (*both indoor and outdoor)

Rank Women

Men

All Lawyers

Netball *

Golf

Skiing

Cycling

Golf

Running

Skiing

Running

Walking

Running

Cycling

Gym

Yachting/Sailing Netball *

Touch rugby

Football *

Touch rugby

Swimming

Tennis

Yachting/Sailing

Yachting/Sailing Bowls *

Football *

Cycling

Squash

Walking

Yoga

Swimming

Gym

CPD is here! Visit the Law Society website for up to date information, and resources such as a template Plan & Record.

lawsociety.org.nz/cpd LawTalk 833 · 6 December 2013 ·

In-House

Leadership in focus: CLANZmini 2013 Aspects of leadership were the focal point of CLANZ’s inaugural CLANZmini conference. The CPD event was held in Auckland and Wellington with over 230 in-house lawyers from around the country participating. The day was spilt into six sessions – what does leadership mean to me, young leadership, personal leadership, team leadership, ethical leadership, and community leadership. Each theme was explored through a mixture of practice and theory.

One of the more prevalent themes at both events was the importance of communication. Speaking in Wellington, Peter Hughes, Secretary for Education and Ministry of Education Chief Executive, described communication as being the “core oxygen” of leadership and how so many can get it wrong. “Most communication is based on not what you say but how you are as a person,” he said. “A colleague’s response to any speech or talk you deliver won’t be what you said but what you were like.”

The art of communication was also enforced during the personal leadership session with Martin Fenwick in Auckland. He said the moment a lawyer moves into a leadership role they can no longer be just a lawyer. “You have to wear two hats and know lawyering only works for lawyers. As a lawyer you probably don’t realise you speak in a different language. You can’t talk law to a human resources staff member for example, they just wouldn’t get you.”

Letters to the Editor Franchise agreements In New Guidelines relevant to joint ventures and franchises (LawTalk 830, 25 October 2013) the author viewed cartel prohibitions in the draft Competitor Collaboration Guidelines as applying to most franchise agreements. Franchise agreements are diverse in nature. They differ in subject matter and purpose and involve different distributions of power, interest and risk. Territory, or exclusive

· LawTalk 833 · 6 December 2013

supply restrictions may, for example, bring a franchise within the guidelines. Assessments must be made on a case by case basis. But franchise agreements are not generically captured by the guidelines. To be useful in a paper such as LawTalk, contributors should be encouraged to abstain from giving uniform answers to different frameworks especially in areas of law with wide business application that practitioners deal with on a daily basis. Garth Lucas Dunedin

Frank Neill, LawTalk’s Editor, responds When this article was published in LawTalk, the Competitor Collaboration Guidelines were in draft form and the Commerce Commission was seeking submissions on the draft. Submissions closed on 12 November. At LawTalk, we interpreted the comments of John Land on franchises as a specialist perspective on a matter or matters raised in these draft guidelines. We considered that a useful perspective, especially for any lawyer considering making a submission on the draft guidelines.

In-House Vanessa Stoddart, director at New Zealand Refining Company Ltd, spoke candidly about her leadership experience and addressed a common question she is asked about her time at Air New Zealand. “Many have asked me: ‘how can I be like (former Air New Zealander CEO) Rob Fyfe?’ I always say you cannot, you need to be yourself as a leader. "Great leaders are consistent, calm, confident, articulate, honest, trusted, prepared

for hard conversations, they deliver, develop and make time for others, lead from the front, are organised and efficient, always remember who they are and what the legacy is they want to leave behind.” One of the highlight speakers at the CLANZ 2013 annual conference provided another inspiring address to close both Auckland and Wellington CLANZmini events. Hastings District Councillor Henare O’Keefe, the “international ambassador of

love”, spoke about the importance of helping others and looking after the community. He talked candidly about how he and his wife have raised more than 200 foster children and how he confronts the challenge of violence in his beloved community, the Hastings suburb of Flaxmere. “Relationships are the currency of the future. Love itself is a powerful, powerful force and you can give without love but you cannot love without giving.”

Chief Censor Andrew Jack’s Guide to Leadership (from CLANZmini Wellington)

• • • •

Step up and take responsibility for your own personal development. Read widely and seek out opportunities. Be self aware. Do you really want to be a leader? Learn to suppress your ego so you can get the best out of other people. Care about your team. Exercise self discipline in stepping away from being a lawyer. From left: Richard Harker (Auckland Council), Troy Pilkington (Russel McVeagh), Charmian Oh (World Vision New Zealand)

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LawTalk 833 · 6 December 2013 ·

From the Courts

Courts holiday hours 2013/14 Urgent Family Court applications over the 2013/14 holiday period Family Courts will provide a national service for urgent applications over the Christmas and New Year holiday period. This year, urgent applications will all be dealt with via the National eDuty platform. Judges have been allocated to deal with applications via the eDuty platform on the days outlined in the table to the right. Principal Family Court Judge Ryan has directed that 2pm is the cut off time for applications to be placed on the eDuty platform each day. Applications placed on the platform after that time will be considered the following day. The date on which each court reopens after the statutory holidays is shown below. Normal operation procedures will return from Monday 13 January 2014.

Arrest courts Any decision about holding arrest courts on any of the days over the Christmas and New Year period is one to be made locally by the court manager who is the emergency contact over the Christmas and New Year holiday period. That decision would have to take into account the Bill of Rights, the urgency of the matter(s) to be dealt with and any other relevant considerations. The District Court Rules provide that Saturdays, Sundays and all public holidays are “court holidays”. A court may sit on a court holiday if a judge considers it desirable, but for the court to sit on a Sunday, Christmas Day, New Year’s Day or Good Friday, the judge must also be of the view that the business to be disposed of is extremely urgent.

Courts holiday dates 2013/14 Auckland Region High Courts Auckland, Whangarei Close: 5pm, Monday 23 December Open: 9am, Monday 6 January

· LawTalk 833 · 6 December 2013

Mon

Tue

Wed

Thu

Fri

Sat

Sun

27 Dec 30 Dec

31 Dec

6 Jan

7 Jan

3 Jan 8 Jan

9 Jan

10 Jan

District Courts

High Courts

Auckland, North Shore, Waitakere, Manukau Close: 3pm, Tuesday 24 December Open: 9am, Friday 3 January Papakura, Pukekohe Close: 3pm, Tuesday 24 December Open: 9am, Monday 6 January

Blenheim, Christchurch, Dunedin, Greymouth, Invercargill, Masterton, Nelson, Timaru, Wellington Close: 5pm, Monday 23 December Open: 9am, Monday 6 January

Central Region High Courts Gisborne, Hamilton, Napier, New Plymouth, Palmerston North, Rotorua, Tauranga, Whanganui Close: 5pm, Monday 23 December Open: 9am, Monday 6 January

District Courts Whangarei, Hamilton, Tauranga, Rotorua, Napier, Hastings, Gisborne, New Plymouth, Whanganui, Palmerston North, Masterton Close: 3pm, Tuesday 24 December Open: 9am, Friday 3 January Dargaville, Kaikohe, Kaitaia, Huntly, Morrinsville, Te Awamutu, Te Kuiti, Whakatane, Thames, Opotiki, Waihi, Taupo, Tokoroa, Taumaranui, Wairoa, Waipukurau, Levin, Dannevirke Close: 3pm, Tuesday 24 December Open: 9am, Monday 6 January Hawera, Taihape, Marton Close: 3pm, Tuesday 24 December Open: 9am, Monday 13 January

Southern Region Supreme Court Close: 3pm, Tuesday 24 December Open: 9am, Monday 6 January

Court of Appeal Close: 3pm, Tuesday 24 December Open: 9am, Monday 6 January

District Courts Wellington, Hutt Valley, Porirua, Nelson, Christchurch, Dunedin, Invercargill, Queenstown Close: 3pm, Tuesday 24 December Open: 9am, Friday 3 January Blenheim, Greymouth, Timaru Close: 3pm, Tuesday 24 December Open: 9am, Monday 6 January Chatham Islands, Westport, Kaikoura, Rangiora, Ashburton, Oamaru, Balclutha, Gore, Alexandra Close: 3pm, Tuesday 24 December Open: 9am, Monday 13 January

Special Jurisdictions All Employment and Environment Courts Close: 3pm, Tuesday 24 December Open: 9am, Monday 6 January

Māori Land Courts Close: 3pm, Tuesday 24 December Open: 9am, Monday 6 January

Coronial Services Close: 3pm, Tuesday 24 December Open: 9am, Monday 6 January

Tribunals Close: 3pm, Tuesday 24 December Open: 9am, Monday 6 January

The Bookshelf B O O K O F TH E MO NT H

g Editor

Full book title

Proof version

Trim size

sevic LLB, BA (Hons)

Immigration and Refugee Law

152mm Wide x 241mm High Yes

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Date created

Designer contact details

TBC

30/9/2013

Name: Tomislav Pinter Mobile: +385 95 8066 764

sevic@lexisnexis.co.nz

Email: tomislav.pinter@gmail.com

2ND EDITION • Doug Tennent Immigration and Refugee Law, second edition, is being published at a time when the Immigration Act 2009 has been in force for three years. There are now a significant number of decisions from the Immigration and Protection Tribunal and relevant instructions and procedures that have been put into place. This text looks at immigration and refugee law from the perspective of the current legislation and the issues, challenges and problems which have arisen. It also contains a detailed discussion on citizenship. In a world of ever-increasing globalisation and travel, migration and relocation, immigration law affects a growing number of people. Work in this area is challenging and often stressful for legal practitioners, immigration advisors and members of decision-making tribunals. This book attempts to give assistance and guidance to people working in this area of law. It also attempts, through critical commentary, to highlight some of the problems which have arisen in this field and provide some suggestions as to how these can be addressed.

Immigration and Refugee Law, 2nd Edition

Immigration and Refugee Law

2ND EDITION • Doug Tennent

Immigration and Refugee Law

About the Author and Contributor Doug Tennent is a lecturer in law at the University of Waikato and is a well-known and respected author on immigration and refugee law issues. He worked from 1984– 1992 as an advocate in the Highland of Papua New Guinea court and prison system under a joint project of the Anglican and Catholic Churches. He also taught in the Faculty of Law, University of Papua New Guinea from 1998–2002. He was also the Associate Dean. Doug Tennent was a legal advisor in the Solomon Islands from 2009–2011.

Immigration and Refugee Law

Katy Armstrong is a licensed immigration adviser and director of Armstrong Immigration Ltd. She is currently in her fourth year as a Director, Chair of Continuing Professional Development and Member of the Policy and Advocacy Committee for the New Zealand Association of Migration and Investment (NZAMI). She was a barrister in England and a human rights lawyer in Guatemala before migrating to New Zealand in 2001.

Related LexisNexis Title Butterworths Legislation Series: Immigration Legislation, 2nd ed, 2012

customer.service@lexisnexis.co.nz www.lexisnexis.co.nz

egislation Series - 18e

Proof version V8

Trim size 165mm Wide x 235mm High

Crimes Act 1961

ook, Crimes Act 1961, 18th edition, is current eviewed annually, the book includes the rence in practice or study.

18th Edition

n Series

n Series include: • The Evidence Code, 2nd ed

Spine width TBC

Date created 10/09/2013

Doug Tennent

The author considers immigration and refugee law from the framework of the current legislation and the issues which have arisen in the three years since it came into force. He says a certain amount of focus has been given to aspects of the legislation which have been shown to be problematic. Immigration adviser Katy Armstrong is acknowledged as a contributing author. LexisNexis NZ Ltd, November 2013, 978-1-927227-14-5, 601 pages, paperback and e-book, $167.00 (GST included, p&h excluded).

Designer contact details Name: Osmyn Morgan Mobile: 022 603 8794 Email: osmynmorgan@gmail.com NOTE: LN email address not in use

Crimes Act 1961, 18th Edition

The annual edition of the Crimes Act includes the New Zealand Bill of Rights Act 1990 and has been consolidated to include all amendments as at 17 September 2013. Each section is accompanied by an editorial note if necessary and a history of all amendments (including the text of many repealed sections). LexisNexis NZ Ltd, November 2013, 978-1927227-16-9, 426 pages, paperback, $63.00 (GST included, p&h excluded). Crimes Act 1961

• Family Law in New Zealand, 16th ed • Immigration Legislation, 2nd ed • R elationship Property Legislation, 4th ed • Securities Legislation

Colour Yes

2ND EDITION

Butterworths Legislation Series

By Doug Tennent

18th Edition

Principles of Real Property Law, 2nd Edition

NZ Charity and Legal Gazette, 38th edition

BY GW HINDE, DW MCMORL AND, NR CAMPBELL, PETER TWIST, JODY L FOSTER, THOMAS GIBBONS, STRUAN SCOTT Aimed at law students, this is an abridgement of the definitive looseleaf and online work Hinde, McMorland and Sim Land Law in New Zealand. Many of the footnotes have been omitted or condensed. The first edition was published in 2007. LexisNexis NZ Ltd, November 2013, 978-1-927183-87-8, 1382 pages, paperback, $150.00 (GST included, p&h excluded).

Publisher Michael Woolf has produced the latest edition of his handy guide to charities. As always, the objective is to provide a resource for use by lawyer clients who are considering making a bequest. Contact details and the objectives of each charity are provided. The Production House Ltd, November 2013, 1179-2930, 48 pages, paperback, $21.70 (GST and p&h included).

Dr Michael Gousmett, Ken Lord & Susan Barker

by Susan Barker, Michael Gousmett and Ken Lord Reviewed by Sarah-Jane Weir

This title fills the gap in the area of resources for those researching or advising on charity law. It provides the reader with a comprehensive up-todate compendium on New Zealand charities law. The book provides guidance on the ample change in the charitable sector over recent years with the establishment of the Charities Commission in 2005, and accompanying High Court decisions. The title also provides information on significant developments in other jurisdictions. The Charity Sector in New Zealand is large and branches into many aspects of society. The legal and accounting professions are developing better skills with which to understand how the sector works but there is room to improve. At a very practical level the title gives hands on guidance for lawyers and accountants when setting up administering and acting for charities.

great benefit to lawyers advising not only charitable entities but other entities with income tax exemptions. These would include public authorities, local authorities, friendly societies, Māori organisations, and amateur sporting bodies. Of particular utility to the charitable sector in general are those chapters aimed at providing a practical guide to forming and administering a charity. The primary focus regarding formation is charitable trusts, but there is also some guidance for the formation of an incorporated society as a charitable entity. For lawyers without an up to date precedent bank, there are some very useful suggested draft clauses for inclusion in charitable trusts. But most useful for the charitable sector in general are some detailed suggestions around governance matters, including governance policy guidelines, timeframes for retention of classes of documents, and board charters. These

About the Authors

are areas that in the reviewer’s opinion are generally not well understood by the many volunteers acting as trustees in the charitable sector who are willing and committed but may lack the resources or expertise to implement best practice governance. The text also provides a comprehensive outline of financial reporting and obligations for charities around anti-money laundering. Throughout the work some philosophical questions are posed around the statutory framework as it affects charitable entities, including the interplay between the Charities Act and the Income Tax Act, and suggestions are made for further reform of the law.

Susan Barker is director of Charities Law Ltd, a boutique law firm in Wellington specialising in charities law and public tax law.

Dr Michael Gousmett: Independent Researcher PhD(Cantab.) BCom(Hons) (Cantab) BBS (Massey) DipCM DipTchg

An up to date and practical guide such as The Law and Practice of Charities in New Zealand is a welcome addition to the reference materials available to lawyers and others involved in the charitable sector. The authors’ aim was a foundation text the sector will adopt as a guide before seeking professional advice when necessary. But there is no doubt the work will also be useful to those professional advisers who provide assistance to the charity sector. The text contains an extremely comprehensive and in-depth analysis of the statutory framework on taxation laws as they relate to charitable entities. This includes some interesting background on the history of taxation relating to the sector, but it is the comprehensive coverage of all aspects of taxation that the reviewer suspects is of

The Law and Practice of Charities in New Zealand

Dr Michael Gousmett, Ken Lord & Susan Barker

The Law and Practice of Charities in New Zealand

Michael has been involved with the charity sector since 1989, working in senior management roles in New Zealand in international, national and regional entities. Prior to that he taught in the secondary service, and worked as company secretary in the retail and manufacturing sector. He also teaches as a guest lecturer

at the University of Canterbury where he presents a series of lectures on charities and taxation. Michael is actively engaged in the sector nationally and internationally, and is a member of the Australian Charity Law Association. In this role he travels to Australia each year to make presentations at forums and conferences. Michael is a Fellow of Chartered Secretaries New Zealand. He has written extensively and made submissions in New Zealand and Australia on a wide range of charity-related issues. Ken Lord LLB; BA

The Law and Practice of Charities in New Zealand

Dr Michael Gousmett Ken Lord

Susan Barker

Current position: Partner, Parry Field Lawyers. Ken joined Parry Field in 1980 becoming a partner with Peter

customer.service@lexisnexis.co.nz www.lexisnexis.co.nz

Continued on following page... LawTalk 833 · 6 December 2013 ·

The Bookshelf THE L AW AND PR ACTICE OF CHARITIES IN NE W ZE AL AND Continued ... This reviewer found the presentation of legal information (such as a discussion on trustees’ indemnity and draft clauses for use in charitable trusts) interspersed with practical material (such as a draft board agenda and model forms for minutes and resolutions) not the easiest format to navigate. Obviously this is a matter of personal taste, but to obtain maximum usage the reviewer needed to read the chapters (and indeed the book) cover to cover, instead of using it as a reference text. The work perhaps assumes a working knowledge of what a charity is in a legal sense. For instance one matter which

surprised this reviewer was the lack of detailed discussion around the four “heads” of charity – although noting it does include overall discussion of charitable purpose. To this reviewer’s mind, an easy to find and more detailed discussion on these matters at a much earlier juncture in the text would have been useful. Perhaps it is because of the structure of the overall text (with the detailed discussion on taxation taking the first half of the book) and an outcome of having three contributing authors. It is respectfully suggested that some tighter editing in future editions would make a very useful reference text even more

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useful as these are matters which could easily be overcome. There is no doubt that the authors have much to contribute to the charitable sector in New Zealand, and particularly to lawyers advising in that sector. The effort in producing this work is to be applauded, and this reviewer hopes it is well taken up by the profession in New Zealand and that the text is updated regularly. Given its comprehensive treatment of matters such as taxation and financial reporting, and the increased public spotlight on the charitable sector in general, there is no doubt there will be further developments worthy of inclusion in the coming years. The Law and Practice of Charities in New Zealand, LexisNexis NZ Ltd, May 2013, 978-1927183-37-3, 739 pages, paperback and e-book, $149.50 (GST included, p&h excluded). Sarah-Jane Weir is a Consultant in the Nelson office of Anderson Lloyd. She is a member of the New Zealand Law Society’s Business Law Committee and provides specialist advice in charity law, intellectual property, information technology and contracts and tendering.

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· LawTalk 833 · 6 December 2013

The Bookshelf

Reform: A Memoir by Sir Geoffrey Palmer Reviewed by Geoff Adlam It is hard to find anyone who has been more influential in as many different parts of our justice system as Sir Geoffrey Palmer – Attorney-General, Minister of Justice, Law Commission President, law professor, prolific legal author, co-founder of a law firm, and latterly a Queen’s Counsel practising from Wellington’s Harbour Chambers. Each of these careers has its own substantial story and directions. Add to that Prime Minister, Deputy Prime Minister, Leader of the House, Minister for the Environment, MP, International Whaling Commissioner and ad hoc Judge on the International Court of Justice, together with his strong opinions on most things and it is clear why Sir Geoffrey has needed nearly 800 pages to fit it all together. Reform: A Memoir is an important outline of the influences and events which shaped the career of a man who has been involved in many of the important law reforms in New Zealand since the 1970s. “I have tried to reform things, to change how things were and to make them better,” he says. From the age of seven when he says his mother convinced him he should become a lawyer, Sir Geoffrey comes across as someone who has tested the framework and assumptions of the institutions around him and used his formidable intellectual powers to propose solutions. As Sir Geoffrey says at the outset, there are few rules for the memoir genre. This particular example sets its own course: we move in a chronological fashion from his early settler ancestor John Palmer to 1984 when Labour has won power and he has the opportunity to effect real reform. There are frequent diversions to examine the ideas, institutions and people involved. From then, for the remaining two-thirds of the book, the chapters become more like essays on a particular theme. Each is anchored by Sir Geoffrey’s lifetime experiences and recollections. The effect of the whole is a fascinating blend of personal anecdote and serious discussion from one of the key players in many of the major law reform initiatives of the last few decades. There are didactic moments (some rather lengthy), but the character of the author is ever-present – aided by his ability to produce a succinct observation. Cover: Geoffrey Palmer as a new member of Parliament, before his first Labour caucus meeting. Photographed 23 August 1979 by an unidentified Evening Post staff photographer. Alexander Turnbull Library EP/1979/2964-F Back cover: Geoffrey Palmer with his granddaughter Gwendoline, when he was admitted to the court as a silk, 2009. Dominion Post.

some perversity in this. More work came in since PALMER people thought if I charged that much I must be good.” On the administrative When describing his side of the law, Sir Geofselection for the safe frey says the only offi ce Christchurch Central seat he had ambition for when we hear: “I certainly had the he entered politics was to loudest voice. I made sure become Attorney-General. A MEMOIR that I mentioned the word As Attorney-General he was ‘socialism’ in my speech responsible for recommendas I had been advised that ing the appointment of A MEMOIR Jim Anderton would be three members of the Court looking for that.” of Appeal, 13 High Court A discussion of David Lange’s leadership judges and 32 District Court judges. New is followed by a poignant poem written Zealand’s judges are certainly not “raging when Sir Geoffrey heard of his death, one radicals” but they do try to be neutral appliers of a number sprinkled throughout the book. of the law to facts. “They are incorruptible, And on his first job in the law: “I resigned they are honest and they try hard to dispense as editor of Salient and got a job as a law justice according to the law”. clerk, the lowest form of legal life known. As well as discussion of his proposal for The salary was derisory but the experience setting up an Attorney-General’s Department invaluable.” for “organising of the law within governThere is obviously much in this book to ment”, we also receive some interesting interest a lawyer. Sir Geoffrey has produced comments on the management and appointan important resource about the framework ment of judges: “Another Family Court of much of New Zealand’s legal system, judge was the subject of a complaint that with insights into how the components he paraded around his garden in the nude developed and where they could develop. during weekends and I asked the Chief For younger lawyers there is an explanation District Court Judge to have a word.” He also of the motives and policy involved in some reveals that Sir Robin Cooke unsuccessfully of the key areas of our current law: accident sought appointment as Chief Justice while compensation, resource management, liquor sitting as President of the Court of Appeal. law, local government, the Treaty of Waitangi Another chapter looks at Sir Geoffrey’s and our constitution. five-year term as Minister of Justice and For older lawyers there is mention and how he views the ministry today: “The new often a pithy assessment of the many organisation has never amounted to even participants in the legal profession and a pale shadow of its predecessor, either in judiciary. Roy Stacey (“not a great lawyer, legislative achievement or adherence to firm but certainly a great advocate in front of principles for which it would fight within the a jury”), Dr George Barton QC (“among governmental system”. the finest lawyers New Zealand has proThis is a lengthy book, but I believe anyone duced, completely ethical and absolutely in the legal profession will find it highly thorough”), Sir Thomas Eichelbaum (“an entertaining and insightful. Whether it is read excellent and highly efficient Chief Justice”) for background and context on our justice and Lord Cooke (“the greatest judge that system or for its reflections on the people and New Zealand has produced”) are among events in the legal world, it is an important the large cast of characters with whom Sir addition to the relatively small collection of Geoffrey has interacted. legal and political memoirs. An extensive and The establishment of the boutique firm accurate index is provided. Chen Palmer gets its own entertaining chapter, showing how an intellectual vision Reform: A Memoir, Victoria University Press, was turned into a working reality which was November 2013, 978-0-864739-05-6, 800 pages, “great fun and lucrative”. Reflections on the hardback, $80.00 (GST included, p&h excluded). people involved and the public law focus of the firm are enhanced with an interesting Geoff Adlam is the Law Society’s Communicadiscovery on pricing: “The point of putting tions Manager. In his working life as a journalist, up the charge-out rate was to decrease lawyer and legal publisher he has been an the workload, as we assumed price would interested observer of the achievements of be a disincentive to clients. But there was Sir Geoffrey. GEOFFREY

REFORM

Sir Geoffrey Palmer QC is a member of Her Majesty’s Privy Council. Born in Nelson in 1942, he was a law professor both in the United States and New Zealand before going into politics. He was elected MP for Christchurch Central in 1979 and became Deputy Leader of the Labour Opposition in 1983. When the Fourth Labour Government was formed in 1984 he became Deputy Prime Minister, Attorney-General, Leader of the House and Minister of Justice. After the 1987 election he ceased being Leader of the House and became Minister for the Environment, a portfolio he retained when he became Prime Minister in 1989. He retired from politics in 1990 and then taught a semester each year at the law school at Victoria University and also at the University of Iowa. In 1994 he began with Mai Chen New Zealand’s first specialist public law firm. In 1995 he sat as an ad hoc Judge on the International Court of Justice in the case New Zealand v France. From 2005 until 2010 Geoffrey Palmer was President of the New Zealand Law Commission. For eight years he was New Zealand’s Commissioner to the International Whaling Commission. In 2010–2011 he chaired the United Nations inquiry into the Gaza flotilla incident. He holds honorary doctorates from three universities. Currently he practises as a barrister in Harbour Chambers in Wellington and is a Distinguished Fellow at the Victoria University of Wellington Law Faculty and Centre for Public Law. Geoffrey is married to Margaret and they have two adult children, Matthew and Rebekah, and seven grandchildren.

GEOFFREY PALMER

Reform has been a recurring theme throughout Geoffrey Palmer’s life, not only during his career in politics as an MP, Deputy Prime Minister and Prime Minister but also as a law professor and law practitioner. In this memoir, Geoffrey Palmer recounts the events and forces that shaped him, as well as his many adventures in reforming a wide range of institutions, laws and policies. He speaks of his early life and family background in Nelson and the eventful lives of his pioneering ancestors. He examines the intellectual influences on his thinking, particularly the nature of his education both in New Zealand and the United States.

REFORM

Geoffrey Palmer chronicles his life according to the issues: accident compensation, the Constitution, the Bill of Rights, the Law Commission, liquor law, Mäori issues, parliamentary reform, the Resource Management Act, law and order, prisons, and local government reform are all discussed in depth. International issues also come within the compass of the book, with extensive treatment of New Zealand’s antinuclear policy, the ‘Rainbow Warrior’ affair, the Gaza flotilla incident and Palmer’s diplomatic efforts to reform the International Whaling Commission. Meticulously detailed, engagingly written, and covering a wide variety of topics, Reform is essential reading for anyone interested in New Zealand legal and political history.

V ICTOR I A UNI VERSIT Y PRESS

VICTORIA UNIVERSITY PRESS

LawTalk 833 · 6 December 2013 ·

Legislation

The official word on online legislation Official electronic versions of New Zealand legislation will be issued from January next year. Chief Parliamentary Counsel, David Noble explains when, how, and what this means … From 6 January 2014 I will issue official electronic versions of legislation under s17 of the Legislation Act 2012, making the New Zealand Legislation website (legislation. govt.nz) a source of official legislation. This milestone will put New Zealand among the few comparable jurisdictions that provide free official up-to-date online legislation to their citizens. I expect it to save legal practitioners money, time, and effort. I’d like to acknowledge the dedication and hard work of Parliamentary Counsel Office (PCO) reprints and publication staff that has made this happen.

Legal effect of official versions The versions of online legislation that are issued as official versions, and printouts of those versions, will be taken to correctly state the law without any further proof of their accuracy in a court of law (ss16 and 18 of the Legislation Act 2012). At present, only the hard-copy legislation published by the PCO has official status.

Which versions of legislation on legislation.govt.nz will be official? It’s a simple test: only PDFs, and only if they display the New Zealand Coat of Arms on the first page. To achieve the accuracy required of official legislation, since 2008 when the website went live the PCO has been checking the legislative database we acquired for accuracy – a process we’ve called “officialisation”. All principal

(ie, not amendment) legislation back to 1931 has now been “officialised”, 1931 being the date of the most recent consolidated reprint of legislation. We have checked each document against the original text, confirmed every amendment, added history notes, and updated the format. We have audited and re-checked. Legislation enacted or made after the drafting and publishing system that drives the website went live in 2008 does not need officialising, as it has undergone the same scrutiny that printed legislation receives. In fact, printed legislation since 2008 has been derived from the XML database running behind the website, making the accuracy of the printed and electronic formats identical. The website retains all versions of legislation, so after every amendment both the previous and the new versions are accessible. For an Act enacted or a Legislative Instrument made after 2007, website users can expect every version of that legislation to be official. In addition, the latest version of every Act and Legislative Instrument enacted or made since 1931, if still in force, will also be official. How many of its earlier versions are also official will depend on when we officialised it. And finally, a few pre-1931 titles will also be official – most significantly, the Judicature Act 1908 and the Sale of Goods Act 1908. The Judicature Act 1908 was officialised back in May 2010, so there will be 20, and counting, official versions of the Act online from that date.

Immigration Specialist Suite 3, 9 Remuera Road P O Box 109-059 Newmarket, Auckland W: jaglalimmigration.co.nz

Phone: (09) 522 2407 or: (09) 522 2340 Fax: (09) 522-2405 Mobile: (021) 079 5143 E: jag@jaglalimmigration.co.nz

· LawTalk 833 · 6 December 2013

Practical implications For practitioners, access to official online legislation will save time and provide certainty. It is a simple matter to locate the relevant legislation on the NZL website and then identify the version with the appropriate “as at” date. If the version is official, the Coat of Arms will appear both on the PDF and under the “View whole” HTML tab; using the official PDF, relevant provisions or the entire document can then be filed electronically or printed and filed (eg, for the purposes of proceedings).

Changes to printing options Also from 6 January 2014, the website will offer “print on demand” – the ability to order commercially printed copies of any version (with any “as-at” date) of any legislation. If the online document is official, the printed copy will be too – just as it will be for a self-printed copy. With these changes, we have looked at what legislation we print, and why. The result is that the 2013 annual bound volumes will be the last to be produced by the PCO – though for those who love their bound volumes (even though they are out of date before they are delivered) Legislation Direct or other commercial printers may offer a publishing and binding service. Similarly, after our current reprinting programme is completed, we will cease publication of traditional hard copy reprints. They simply can’t compete against official online reprints, available every time an Act or Legislative Instrument is amended.

Quick Tips

With the emphasis on online legislation, it is important that practitioners know how to get the best from the New Zealand Legislation website. • Don’t just rely on Quick Search (or on Google) – get to know the options offered under Advanced Search. • Explore the home page – links here can save you time and give you the latest on website changes. • Use a document’s “Versions and amendments” tab (“Versions and SOPs” for Bills) – this is where you’ll find a document’s history and upcoming amendments, and its earlier versions. • To cut and paste provisions, use “Tagged sections/clauses”. • Check for the official Coat of Arms on PDF versions to determine if the version is official.

Technology

Use of iPads in Environment Court hearings By Judge Laurie Newhook Environment Court divisions will shortly be making increased use of iPads for storing and referring to evidence and other material before, during, and after hearings in Court. This follows trials of the use of iPads in large hearings by some divisions of the Court in the last 12 months, which have been considered highly successful by members of the Court, counsel, and others involved in those hearings. The Ministry of Justice has now supplied iPads to all Judges, Commissioners, Deputy Commissioners, and Hearing Managers of the Environment Court. This will enable use of these tablets in a broader range of hearings, starting in the near future. Advantages perceived include avoidance of the need to transport and make reference

to considerable quantities of paper material. It has proved possible to load almost all case materials into iPads. One of the few exceptions is some graphic materials which might remain to be displayed by other means, for instance on paper or on large screens in the Courtroom. The deployment of iPads will proceed on a case-by-case basis, with fair warning given by the Court in conferences and case management directions from early in the life of cases. This will allow counsel and others involved in hearings to suitably equip themselves. This can be important because hearings move significantly more quickly than when the Court and parties are required to navigate their way through large quantities of paper materials. The Court makes use of an App called GoodReader, a tool it finds appropriate and intuitive for uploading large quantities of materials, accessing them on the iPad,

LexisNexis Book Sale

highlighting, marking, noting, and otherwise managing them. It is recognised that parties may have preferences for hardware and software different from the above, but the Court recommends that to the greatest extent possible they adopt the same approach as the Court, because speed and efficiency of location of documents by many persons in Court will be aided by people working from identical page references and overall displays. The Court Registry can offer advice on the use of iPads and GoodReader for cases, but observes at this time that the hardware and software are intuitive and easily mastered in relatively short order. Contact Rachell Staunton, phone (04) 9188317, or email rachell. staunton@justice.govt.nz. Judge Laurie Newhook is the Acting Principal Environment Judge.

Have your cake and eat it too! Make sure your research isn’t half baked and rise to the top. With a dash of recently published titles, a splash of international content and a sprinkling of Practitioner Books Online, researching will be a piece of cake! The recipe for perfection: • 15% off recently published titles* The icing on the cake: • Purchase 3 or more titles receive a $100 voucher* • Purchase 6 or more titles receive a $200 voucher*

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LawTalk 833 · 6 December 2013 ·

Programme

Presenters

Content

CIVIL Programme

Presenters

CPDcalendar CPDcalendar

Content

Where

When

Where

When

CIVIL Immigration and Protection Tribunal

Melissa Poole Martin Treadwell

Webinar What separates a strong appeal from one that is not? This seminar will consider Christchurch what the Tribunal is looking for from lawyers and representatives, as well as Wellington CRIMINAL how they can best represent their clients. It covers all forms of appeals including Auckland both “on the papers” appeals and oral hearings. Webinar

17 Mar 18 Mar 19 Mar 18 Mar

CRIMINAL Introduction to Criminal Law Practice

Noel Sainsbury

Revised to include the Criminal law Procedure Act, this practical two-day Christchurch workshop will cover the fundamentals of being an effective criminal lawyer. Wellington The course addresses the steps that young lawyers need to know about to Auckland prepare for and run a Judge-alone trial in the District Court. FAMILY

17 - 18 March 31 Mar - 1 Apr 3-4 Apr

FAMILY Mediation for Virginia Goldblatt Lawyers: Part B Denise Evans – Family Law

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

Understanding Mediation – mediation for lawyers Part A

Virginia Goldblatt Geoff Sharp

Mediation knowledge and skills are an increasingly important adjunct to legal Auckland 1 practice. Many more clients are taking disputes to mediation (because it works) and Wellington the more that their legal advisers know about how it works the better. In addition Auckland 2 practice as a mediator extends the service that lawyers can offer the public.

28 Feb - 2 Mar 4 - 6 Jul 31 Oct - 2 Nov

FDR Training for Mediators

Denise Evans

Those mediators wanting to be appointed as an FDR provider by NZLS Christchurch need to complete this one-day workshop to add to their current mediation Dunedin knowledge and skills. Wellington Hamilton Auckland

17 Feb 19 Feb 25 Feb 26 Feb 27 Feb

The New Family Justice System – fundamental changes

Tim Black Alan Goodwin Nicola Grimes Emma Parsons

The Family Law Reforms introduce a new Family Justice System. This involves fundamental changes to family law processes, access to the Family Court and Family Court procedure. This seminar is a must for anyone practising family law. It will equip you with the information that you need, in order to operate effectively following the implementation of the Family Court reforms. The new rules commence in the first quarter of 2014. This seminar provides a valuable opportunity to understand the enormity of the changes and how they will affect the way you practise family law.

Wellington 1 Auckland 1 Wellington 2 Auckland 2

New Plymouth Nelson Palmerston North Christchurch Napier Rotorua Dunedin Hamilton Invercargill Auckland Webinar Wellington Whangarei Webinar

International Surrogacy and Adoption – family formation in the 21st Century

Chair: As international adoption involving surrogacy arrangements becomes more Christchurch Paul von Dadelszen common, development of NZ jurisprudence in this area inevitably will be Wellington influenced by international legislation and cases, together with information Auckland gained from studies of the effects of adoption and surrogacy on the children and their sense of identity. Medical frontiers are expanding possibilities for IVF and further legal complexity. Where is it all heading? It is vital that practitioners understand relevant law and current directions. The aim of this one-day conference is to pull together contributions from overseas, leading practitioners, relevant ministries, academia and Fertility Associates.

21 - 23 Feb 2 - 5 May 22 - 24 Aug 3 - 5 Oct

10 Feb 11 Feb 11 Feb 12 Feb 12 Feb 13 Feb 17 Feb 17 Feb 18 Feb 18 Feb 19 Feb 19 Feb 19 Feb 8 Apr 9 Apr 11 Apr

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.

Brochures for CLE programmes are distributed with LawTalk. If you have not received a brochure for any of the programmes listed, · LawTalk 6 December 2013 please833 see·www.lawyerseducation.co.nz or email cle@lawyerseducation.co.nz or contact CLE information, tel 0800 333 111.

Lawyers Complaints Service

Misconduct by taking fees in advance without a trust account Errol Hamilton Parsons, of Christchurch, has been suspended for 18 months by the Lawyers and Conveyancers Disciplinary Tribunal, following a short interim suspension. The suspension related to breach of trust accounting requirements. In [2013] NZLCDT 48, the tribunal found a charge of misconduct against him for not operating a trust account when required to do so had been proved. Mr Parsons had set up his practice arrangements in a way that he considered entitled him to an exemption from having a trust account. Section 110 of the Lawyers and Conveyancers Act 2006 (LCA) provides that money received for or on behalf of a client must be held in a trust account for the client concerned and subject to their direction. Section 112 provides certain exemptions to the requirement to keep trust account records. Mr Parsons believed that if he received no funds from a client other than in respect of invoices issued (generally for work yet to be undertaken or disbursements paid), he would qualify for the exemption from having a trust account, which he said was

Suspended for making false file notes Gary Edward Sawyer of Blenheim has been suspended for 36 months by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after he admitted forging client signatures and artificially reconstructing file notes. Mr Sawyer faced three charges in [2013] NZLCDT 47. He pleaded guilty to two charges, which took place in 2004 and 2011 and not guilty to a 2007 incident on the basis that it did not reflect on his fitness to practise or bring the profession into disrepute. In 2004 Mr Sawyer acted for clients in

provided in s112(2). The tribunal disagreed with Mr Parson’s interpretation. It said s112 did not provide an exemption from having a trust account. Rather, it provided a limited exemption from record keeping requirements for those lawyers who operated a trust account. The tribunal accepted that payment of invoiced fees and disbursements would not normally amount to receiving funds for or on behalf of another person, triggering the trust account requirement in s110. Similarly, record keeping under s112(2) was not required simply because fees and disbursements were received in payment of an invoice. However, the evidence showed that Mr Parsons received funds in advance. He therefore received those funds for and on behalf of his clients and they should have been paid into a trust account. The requirement to have a trust account is an example of a client protection provision in the LCA, and the tribunal made it clear that it did “not consider Mr Parsons was free to create a system that attempted to by-pass trust account obligations by billing fees and disbursements in advance”.

a transfer of property. He obtained their signatures on the transfer document but overlooked having the water permit transfers signed at the same time. The water permits that had been agreed to be sold were, in fact, incorrectly described. That, and the failure to provide all of the water permits in terms of the contract, became the subject of litigation. Having discovered his mistake of failing to have his clients’ signatures endorsed on the water permits, Mr Sawyer decided that rather than admit his error and in order to save the clients a journey back into town he would forge their signatures on the documents. “This was readily acknowledged by Mr Sawyer when it was discovered,” the tribunal said. “It is most unfortunate because in fact Mr Sawyer could have signed as his clients’ agent and on their behalf. However, Mr Sawyer was acting outside his usual area of

The tribunal agreed with the standards committee which had noted that such billing was likely in many cases to be contrary to clients’ interests, putting the funds at risk if work was not subsequently completed or disbursements not paid on their behalf. That, in itself, would amount to a breach of Mr Parsons’ solicitor/client duties to his clients. The tribunal noted that this was “a scheme that did not properly recognise duties to clients, and was an artificial and somewhat clumsy attempt to operate a practice system that bypassed trust accounting requirements”. It was not a matter of dishonesty and Mr Parsons clearly thought that he was able to operate his practice as he did. He now understands that he was incorrect. As a result, the tribunal decided that though striking off was available, it was not necessary in this case. Mr Parsons indicated that he would undertake the trust account supervisor qualification. He was ordered to pay the Law Society standards committee costs of $12,000, and tribunal costs of $6,000. The tribunal also found Mr Parsons guilty of unsatisfactory conduct in relation to failing to co-operate with the standards committee’s investigation. However, it noted that the conduct was not deliberate. Instead, Mr Parson’s records were so disorganised that he had been unable to provide some information, but that he had attempted to co-operate.

expertise, which was as a litigator.” In due course, the firm of which he was a partner was sued for negligence and the Court of Appeal treated the forgery aspect as an aggravating feature of this negligence. In 2007 Mr Sawyer represented clients who were personal friends on a proposed sale of a commercial property. The proposed settlement was to be deferred for some four years and thus was unusual and carried particular risks. Mr Sawyer recognised that “to some extent” and redrafted the agreement to provide for a much more significant deposit and a clause allowing settlement to be brought on with 12 months’ notice. However, in redrafting he failed to notice that an accruals clause that was in the original contract was not included in the new contract, which had particularly Continued on following page ... LawTalk 833 · 6 December 2013 ·

Lawyers Complaints Service

Censured for intemperate comments about judges and justice system Auckland lawyer Dr Tony Molloy QC has been censured by the National Standards Committee (NSC) for comments about judges and the justice system that were not made in a reasoned and temperate manner. The determination is subject to review by the Legal Complaints Review Officer. Dr Molloy made the comments while putting forward a proposal that the High Court would benefit from judicial specialisation. “The NSC was of the view that the issue of judicial specialisation was worthy of debate and it accepted that Dr Molloy’s views were honestly held and were made in good faith,” the committee’s decision states. “However any comments should be made in a reasoned and temperate manner (to be adjudged on the individual circumstances in each case).” If they were not made this way, the conduct may contravene a lawyer’s obligation under s4 of the Lawyers and Conveyancers Act 2006 and rule 2 of the Rules of Conduct and Client Care, which state that one of the

“fundamental obligations” of lawyers is to “uphold the rule of law and to facilitate the administration of justice in New Zealand”. The committee said it considered that some of the reported comments of Dr Molloy in an article entitled New Zealanders shafted by fraudulent justice system, says top QC, published in the National Business Review on 29 August 2012, were not expressed in a reasoned and temperate manner. Comments of Dr Molloy alleging a fraudulent justice system and alleging that judges were flouting their oaths and were sitting under false pretences were decisive in the NSC reaching this view. These comments included the following: “This is not an attack on the competence of judges, but on their delusions of omnicompetence.” “How would you like your brain surgery done by a gynaecologist or by an orthopaedic surgeon?” “You would balk at the stupidity of putting yourself in the hands of someone working

outside his field, yet New Zealand lawyers and judges do it all the time.” “For the so-called justice system to charge daily hearing fees for judges so badly mismatched to the cases in hand is fraudulent.” “What judges are doing is very wrong. They take an oath to administer justice according to the law.” “If they don’t know the law applicable to the case before them, it means they are already flouting their oath, which is pretty rich when it is considered that they can put witnesses in jail for flouting their oaths.” “But every High Court judge today is out of his or her depth in many fields of the law, and accordingly is sitting under false pretences when he or she is sitting in those fields.” “The law is being corrupted for want of judicial specialisation.” As well as the censure, the NSC ordered Dr Molloy pay $1,000 costs. A fuller version of the NSC decision is on the Law Society’s website at www.lawsociety. org.nz/for-the-community/lawyers-standardscommittee-decisions/2013/a-complaint-dated29-august-2012-regarding-the-conduct-of-drtony-molloy-qc.

SUSPENDED FOR M AKING FALSE FILE NOTES Continued ... significant GST and tax implications for the vendor and purchaser. Mr Sawyer had wrongly assumed the property was zero rated because a small portion of it was leased or that, if payable, GST would only be payable on the deposit. That was an error. An expert called by the standards committee identified a number of deficiencies, including failure to obtain or test information on the financial status of the purchasing company, ascertaining whether personal guarantees from the directors or others backing the company should be obtained and failure to obtain accounting advice about GST issues. In 2011, the clients from the 2007 transaction, where they had suffered very high losses, approached another solicitor. That lawyer provided Mr Sawyer’s firm with an authority to obtain the file so he could consider the clients’ position. On receiving the file Mr Sawyer, who was on leave, went into the practice one evening to tidy the file. He wrote a reconstructed file note to say he had considered personal guarantees and advised the client accordingly. He also added comments about accruals clauses, which he had not originally advised on. However he

· LawTalk 833 · 6 December 2013

dated the file notes 2010 rather than 2007. After noting the 2010 date, the second lawyer spoke with a senior partner of the firm in which Mr Sawyer was a partner. The senior partner discussed the matter with Mr Sawyer and went on to suggest there must be some reasonable explanation such as Mr Sawyer merely tidying the file notes. Mr Sawyer agreed with this suggestion. Subsequently his conscience prompted him to confess to his wife and then to the partner with whom he had worked closely, saying the file notes were an artificial reconstruction. The client subsequently issued proceedings against the firm. Mr Sawyer urged the parties to mediate and offered $200,000 of his personal funds to ensure the matter resolved. Settlement occurred in mediation. This misconduct, which Mr Sawyer admitted, was “the most serious under consideration”, the tribunal said. The tribunal “reflected for some considerable time” whether a strike off was required and decided “by a very fine margin” to impose the maximum term of suspension. Although it was of “utmost concern” that on two occasions while under stress Mr Sawyer had resorted to dishonesty, he

had taken proactive steps to address this. The tribunal also noted that Mr Sawyer was a “thoroughly competent lawyer in his area of expertise, which is litigation” and “there is no suggestion that he is not fit to practise in his usual areas of expertise”. He also had a clean disciplinary record and had a record of community contribution both through voluntary work and willingness to take on difficult cases on legal aid for clients who might otherwise not receive representation. As well as the suspension, the tribunal prohibited Mr Sawyer from practising on his own account until authorised by the tribunal. If he does practise again, he must make his practice available for inspections by a member or members of the Law Society branch Council at any time, and that order will remain in force for three years from the date he resumes practice. The tribunal also recommended to the Law Society that a condition of Mr Sawyer being issued a practising certificate be that he provide a written undertaking that he will not practise conveyancing and will confine himself to litigation work. He was also ordered to pay the Law Society tribunal costs of $5,335 and standards committee costs of $25,797.

Lawyers Complaints Service

Fined for failings in a legally aided criminal appeal A lawyer, A, has been censured and fined $1,000 by a lawyers standards committee for a series of failings in relation to an appeal lodged after the client was sentenced to six years imprisonment for historic sexual offending. The client’s counsel at the High Court trial filed a notice of appeal in the Court of Appeal. The notice did not specify the grounds of appeal, but it was handed over to A to conduct. The Legal Services Agency (LSA) granted A four hours to prepare a summary of issues to assist it to assess whether to grant funding to pursue the substantive appeal. Later that month A prepared a brief summary of issues for the LSA, which considered it insufficient. A sought, and was granted, an amendment to the grant which enabled him to travel to meet the client in person to discuss matters fully. At the meeting, the decision was made to instruct a private investigator to make enquiries which they hoped would uncover helpful fresh evidence. The private investigator was privately funded by the client. The investigator’s first report was emailed to A on the day before the Court of Appeal hearing. A was unaware of this until shortly before the hearing, when he had a telephone discussion with the investigator. As he had not had enough time to consider the report, A sought an adjournment, which was granted. However, the court directed that A had an obligation to advise the court by the end of the year whether there was any basis on which the appeal could proceed. A further report from the private investigator was commissioned, but after being

informed that the LSA had received a complaint from the client, A advised the client that he could not remain as counsel. The client instructed another barrister, who took over conduct of the appeal, including providing the LSA with an acceptable summary of issues and obtaining a grant to pursue the appeal, which was ultimately unsuccessful. The LSA conducted an investigation into A’s conduct. In its referral to a specialist advisor, the LSA noted that A was requested no fewer than five times to provide a more detailed summary in order to establish further funding. The standards committee determined that in failing to provide a summary of issues as required by the LSA, A had breached Rule 3 of the Rules of Conduct and Client Care. As well as not providing a summary of issues to the LSA, A had failed to provide essential information to the Court of Appeal. That was not in the best interests of his client, the committee said. It found that A had breached Rules 5.2 and 13 in failing to follow the directions of the court. The committee also found that A had breached Rules 5.2 and 5.3 by failing to exercise his professional obligations solely for the benefit of his client and failing to give objective advice to his client based on his understanding of the law. This included writing correspondence which gave the client the incorrect and misleading impression that funding was unlikely. Funding was in fact contingent on the LSA determining the merits of the appeal based on the summary of issues ,which A had failed to provide.

And the committee considered that A had breached Rule 4 in terminating the retainer. A did not complete the retainer as required by the rules, the committee said. He was not discharged by [the client] or LSA, nor did [A] and [the client] agree [the client] would seek other counsel under the legal aid grant. The committee made a finding of unsatisfactory conduct against A. As well as the censure and fine, A was ordered to pay the Law Society $1,500 costs. The client sought a review of the committee’s decision by the Legal Complaints Review Officer (LCRO). The client said he was “happy with the determination that there [had] been unsatisfactory conduct” but requested that A be ordered to pay $12,060.46 compensation for the cost of the private investigator’s report. The LCRO said that he did not consider a compensatory order should be made in relation to A’s failure to seek funding for the investigator’s report. The LCRO referred to previous decisions which drew on Hadley v Baxendale and the principle that to be recoverable losses must naturally flow from breach of the retainer or at least must have been in the reasonable contemplation of the parties at the time the contract was made. On this basis, the difficulty identified by the LCRO was that there was no certainty that the LSA would have approved the grant and A’s conduct in this regard had not fallen short of the standard of competence and diligence the public could expect from a reasonably competent lawyer. The LCRO confirmed the determination of the standards committee.

Not to be employed Aiysha Hornsby of Wellington is not to be employed by any practitioner or incorporated law firm in connection with their practice, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal has ordered. This order is to remain in force until lifted by the tribunal. Ms Hornsby was charged with stealing firm funds of $40 and $80 in [2013] NZLCDT 50. The standards committee provided

evidence from two previous employers of Ms Hornsby. “The evidence satisfies us on the balance of probabilities, having regard to the seriousness of the allegations, that the charges have been established and that it is more probable than not that Ms Hornsby is the person who was responsible for the deficit in petty cash funds which was the source of the stolen money,” the tribunal said. “The affidavits from the two previous

employers also depose to dishonest behaviour in the sense which reinforces our findings in terms of these thefts, because she had previously been, it seems, dishonest concerning the taking of leave entitlement and receiving funds for that in a way that established duplication.” There had been “clearly a breach of trust” and “a pattern of repeated dishonesty which is entirely unacceptable,” the tribunal said. LawTalk 833 · 6 December 2013 ·

Lawyers Complaints Service

Failure to provide timely e-dealing certification was unsatisfactory conduct A lawyer, A, complained about lawyer B’s failure to certify an e-dealing certificate before settlement. The lawyers standards committee that dealt with the complaint expressed some surprise that A chose to contact the Law Society when he discovered the failure to certify, rather than taking the matter up directly with B. However, A was within his rights to do so. B acted for the purchaser of a property and before settlement B obtained a guaranteed search. On settlement day funds were drawn down and paid to A’s trust account. It then

became apparent that B had failed to certify the e-dealing as required and registration of the transfer and mortgage took place some 14 days after settlement. The protection afforded to B’s clients and the lending bank by the guaranteed search lapsed before this. B advised that at the time of the transaction he was recovering from heart surgery and was confined at home with limited internet access. Local lawyers had been assisting him with his practice. B said that this was an isolated incident and on his return to work protocols were put in place so there would be no repetition of this incident. The

committee chose not to take any matters relating to the supervision of B’s practice further, given the circumstances. The standards committee found that there had been a breach of rule 3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 which requires a lawyer to provide regulated services in a timely manner. B’s failure to comply with rule 3 placed his clients and the bank’s interests at risk. A finding of unsatisfactory conduct was made and B was fined $500 together with costs of $500.

WI LLS

R E GISTRY The following people have applied to the New Zealand Law Society for certificates or approvals A P P R OVAL TO P RAC T I S E O N OW N ACCO U NT under s 30 of the Lawyers and Conveyancers Act 2006

Devoy Marie Elizabeth Forster Warren Ashley Guest Michael Richard Dexter Griggs Christopher John Harper Kirsten Gaye

Harris Caroline Ellen Insley Marcia Josephine Matehaere Mahony Thomas Brian Chadwick Manning Sarah Elizabeth Mary

Mitchell Shyrelle Bernice Munro Catherine Sarah Toohey Anne Marie Vertongen Baden Anthony

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 www.lawsociety.org.nz/for-lawyers/law-society-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 11 July 2013. Any submissions should be given on the understanding that they may be disclosed to the candidate.

LISA AT T R I L L , R EG I ST RY M A N AGER lisa.attrill@lawsociety.org.nz 04 463 2916 04 463 2989

0800 22 30 30

SI TUATIONS VAC ANT

KAREN SUZANNE FRANKLIN Would any lawyer holding a will for the above-named, late of Auckland, Saddler, who died on 9 December 2012 aged 62 years, please contact Lynn M Hearn, Franklin Law Limited: lynnh@franklinlaw.co.nz · Ph 09 237 0066 · Fax 09 238 7141 PO Box 43, Pukekohe 2340 · DX EP77029

MEREDITH MARGARET MARSHALL Would any lawyer holding a will for the above-named, late of 66 Yule Street, Kilbirnie, Wellington, who died on 30 August 2013, please contact Stuart Smith, Dorrington Poole: stuart@dorrington.co.nz Ph 06 374 7089 · Fax 06 374 5598 PO Box 69, Dannevirke 4942 · DX PC 78001

ZOO-MEI TSO Would any lawyer holding a will for the above-named, late of 18 Taratoa Street, Point England, Auckland, who died on 11 June 2012 aged 63 years, please contact Maurice J Burney: · maurice@mjblaw.co.nz Ph 09 527 1311 · Fax 09 527 1411 · DX EP80506 PO Box 14663, Panmure, Auckland 1741

COLIN IAN BROWN Would any lawyer holding a will for the above-named, late of Rarotonga and previously of Auckland, who died on 26 May 2013 in Rarotonga, please contact Steve Lunn, Lunn & Associates: steve@lunns.co.nz · Ph 06 834 1488 · Fax 06 834 1422 PO Box 846, Napier 4140 · DX MP70005

C&M LEGAL New Plymouth Senior ASSociAte A / PArtner Ate We are seeking a lawyer with particular interests and experience in: • General Property and Commercial practise, • Asset planning and trusts (further specialist training/ mentoring will be given), • Law firm management. Please contact Kerry Ayers at: kerry@helmores.co.nz Helmore Ayers, PO Box 8370, Christchurch 8440 phone 03 366 5086

· LawTalk 833 · 6 December 2013

Junior Litigator - 1-3 Years PQE We are the only specialist firm in Taranaki and are the office of the Crown Solicitor at New Plymouth. We are seeking an enthusiastic litigator with strong written and oral communication skills, who is able to manage workflow effectively. Our practice is varied and the successful applicant will be exposed to a variety of civil litigation, family, employment, regulatory and Crown prosecution work. Please apply in writing with CV to the Practice Manager, C&M LEGAL, PO Box 8217, New Plymouth 4342, or email tom.fogarty@candmlegal.co.nz Applications close 3 January 2014

WI L L S

GARY BERNARD READING Would any lawyer holding a will for the above-named, late of 3 Wade Avenue, Onehunga, Auckland, who died on 4 November 2013 at Auckland, please contact Rhonda Graham, Morgan Coakle Lawyers: rgraham@morgancoakle.co.nz Ph 09 379 9077 · Fax 09 379 9155 · DX CP20504 PO Box 114, Shortland Street, Auckland 1140

A J E S H N A R AYA N S I N G H Would any lawyer holding a will for the abovenamed, late of 62 Harrisville Road, Tuakau, born on 3 September 1964, who died on 25 September 2013 at Horsham Downs aged 49 years, please contact David Rice, David Rice & Associates: office@davidrice.co.nz Ph 09 295 1067 · Fax 09 297 7707 PO Box 72266, Papakura 2244 · DX EP76505

JOAN LORAINE SERVICE Would any lawyer holding a will for the above-named aka Joan Loraine Kozyro, late of Auckland, who died on or about 6 November 2013 at Auckland, please contact John de Lisle, Paddy Orr & Co: john@paddyorr.co.nz Ph 09 827 0840 · Fax 09 827 0873 · DX DP95029 PO Box 15525, New Lynn, Auckland 0640

PETER JAMES EDWARDS Would any lawyer holding a will for the above-named, late of Flat H, 51 Burns Street, Caversham, Dunedin, born on 2 July 1950, who died on 13 October 2013 at Dunedin, aged 63 years, please contact Kiran Prasad, Public Trust: Kiran.Prasad@publictrust.co.nz Ph 03 977 3911 · Fax 03 977 3962 PO Box 4549, Christchurch 8140 · DX WX11136

DEREK BRYCE GOODENOUGH Would any lawyer holding a will for the above-named, late of 2 Struan Place, Howick, Auckland, born on 17 September 1961, who died on 17 October 2013, interned at the North Shore Memorial Park on 25 October 2013, please contact Archel Jurial: archel_jurial@yahoo.com Ph +63 923 2702715 Callawa, Buhangin District, Davao City 8000, Phillipines

EDWARD JAMES TOFT Would any lawyer holding a will for the above-named, late of Wellington, who died on 9 November 2013 at Wellington, please contact Robert Anderson or Virginia Nelson, Morrison Kent Lawyers: virginia.nelson@morrisonkent.com Ph 04 472 0020 · Fax 04 472 7017 PO Box 10035, Wellington 6143 · DX SP20203

SANDRA JOAN HORNELL Would any lawyer holding a will for the above-named, late of 100A Gowing Drive, Meadowbank, Bank Mobile Mortgage Manager, who died on 13 October 2013 aged 55 years, please contact John Sellers, Barrister and Solicitor: john@johnsellers.co.nz Ph 09 521 0521 · Fax 09 521 3091 PO Box 87159, Meadowbank, Auckland 1742

S 40 P U B LI C WO R KS ACT 1 98 1

SA LU D L AC TAOTAO C L A R K Would any lawyer holding a will for the above-named, late of 9 Ferguson Street, Mangere, Auckland, formerly of 18 Kanohi Terrace, Mangere, Auckland, who died on 6 February 2013, please contact Deborah McNab, Vallant Hooker & Partners:

BETTY MARJORIE (MARGARET) FALLON

dmcnab@vhp.co.nz Ph 09 360 0321 · Fax 09 360 9291 · DX CP30015 PO Box 47088, Ponsonby, Auckland 1144

Seeking any information regarding the above-named who was the spouse of John William Fallon who owned property in Enfield, Oamaru in 1963. Please contact Chris Cochrane, phone 03-363-5068, Darroch Ltd, PO Box 142, Christchurch. Information is sought for the purposes of Section 40 of the Public Works Act 1981.

TO ROTO RO K A I TA I N A Would any lawyer holding a will for the above-named, late of 20 Hawick Street, Tokoroa, retired, who died on 22 September 1998 at Tokoroa, please contact R W O’Connor, Hassall Gordon O’Connor & Newton: tok.law@clear.net.nz Ph 07 886 6279 · Fax 07 886 8231 PO Box 76, Tokoroa 3444 · DX GA28501

C AT H E R I N E M A RY B A D R AU N Would any lawyer holding a will for the above-named, late of 21 Graham Street, Petone, Lower Hutt, Practice Manager, born on 22 March 1963, who died on 12 October 2013, aged 50 years, please contact Ashika Bali, Gibson Sheat Lawyers:

+64 (0)3 379 9787 Darroch Limited MREINZ REAA 2008 F O R LE AS E

ashika.bali@gibsonsheat.com Ph 04 916 6450 · Fax 04 569 4874 PO Box 31905, Lower Hutt 5040 · DX RP42008

CENTRAL CITY OFFICE SUITE FOR LEASE

A L L A N WAY N E G U I N E Y W I L S O N Would any lawyer holding a will for the above-named, late of 321 Paerata Ridge Road, RD2, Opotiki, formerly of Rotorua, New Plymouth and Whakatane, who died on 29 July 2013 at Opotiki, please contact John Norman, Potts & Hodgson, Solicitors: John@pottshodgson.co.nz Ph 07 315 6314 · Fax 07 315 7737 PO Box 444, Opotiki 3162

KI NGSTON SUIT ES 4 Kingston Street, Auckland CBD

• • • • •

Recently refurbished office suite Great location, opposite Auckland District Court 23m² @ $240.00p/w + GST (incl. opex) Secure premises Flexible lease terms available

All enquiries phone Andrea on 09 309 5651

SIT UAT IO N S VACA N T

McWilliam Rennie Lawyers We are a boutique firm based in central Wellington. We are looking for an intermediate lawyer to join our family and criminal litigation team. We seek a person who is passionate about providing quality legal services within a fun and supportive team. You will have at least 3 years experience, with legal aid approval. You will have sound legal knowledge and skills in the areas of family law. You will also have the opportunity to practice criminal law. You will have an ability to work under pressure and to maintain a professional attitude. The position is available from the start of 2014. Enquiries to: McWilliam Rennie PO Box 24280, Wellington 6142 Phone (04) 924 2460 Email: leona@mcwr.co.nz

LawTalk 833 · 6 December 2013 ·

SI TUATIONS VAC ANT

Civil Litigation Lawyer Queenstown

A busy boutique Queenstown based law firm seeks a dynamic, proactive and motivated lawyer with at least 3 years PQE to complement its expanding practice. Our firm specialises in professional indemnity insurance litigation. We provide a supportive work environment with plenty of opportunity for professional development, training and supervision.

SOLICITOR Required for small busy practice situated in Whakatane, Bay of Plenty. The ideal applicant will have solid PQE, and will want to specialise in Family Law, Relationship Property, some work in Trusts, Estates, and Convenyancing. Remuneration is negotiable, as are work hours. Applications treated in strictest confidence and should be forwarded to: donna@mcecile.co.nz or Michelle Cecile Law Limited, PO Box 619, Whakatane.

The position provides the opportunity to work within a wide variety of Courts and Tribunals throughout New Zealand and to develop existing skills. We offer an excellent and competitive remuneration package in an unparalleled environment. To apply for this role, applicants will need to hold a current New Zealand Practising Certificate and full Driver’s Licence. If you think you have the ambition and enthusiasm to succeed in working with us then please forward your letter of application and curriculum vitae to: Parker Cowan Lawyers, PO Box 1052, Queenstown Email: admin@parkercowan.co.nz Phone: 03 442 6337 Please have all applications in by 19 December 2013

STAFF SOLICITOR We are an established firm situated at the gateway to the Coromandel and seek to employ in the New Year a solicitor to work in our general practice. We offer a challenging and interesting range of work in a supportive congenial working environment. Definite prospects for advancement exist for the right candidate. Applications with CV should be forwarded by email to rodney@millerpoulgrain.co.nz

Senior Solicitor – Rural/Commercial Property and Trust Law 5-8 years experience Waikato Imagine an idyllic rural lifestyle 20 minutes away from Waikato’s central hub, two hours drive time to mountains and hot pools and 50 minutes from some of the world’s best surf and beaches… YES this location exists! Servicing rural Waikato this unrivaled practice is a Member of NZ Law Group and has expertise in complex farm sales nationally. An opportunity with partnership prospects exists for a senior solicitor with experience across all aspects of rural, commercial and residential property, commercial and company law, financing, trust law and asset protection advice. Working alongside a collaborative and supportive team, the successful lawyer will take ownership for their own work responsibilities and will be skilled in building relationships and converting these relationships into real opportunities. They will take an active role in mentoring the younger members of the team and will ideally have a connection to or be in a position to commit to the Waikato long term. In return, this firm provides the latest in technology and places a commitment on the continued development of their staff. For more information about this role, please contact Jennifer Little at Jennifer@hrshop.co.nz for a confidential discussion. 0508 HR SHOP / Level 1 - 182 Vivian Street Po Box 7031, Wellington South

GENERAL PRACTICE LAWYER We are a small, friendly firm in the sunny Bay of Islands looking to expand our team and take some pressure off the partners with a graduate lawyer or lawyer with 1-2 years PQE. We can offer varied and interesting work, access to clients, a real opportunity for advancement and work/ life balance. We have a friendly, youthful, experienced team with high standards, who offer plenty of support. We are looking for someone with a great attitude, a good academic record, and ideally 1-2 years experience in a general practice firm. You must have a desire to live and work in a small town, to build good relationships with clients and to get involved with our community. Could this be you? If so, please send through your CV to our administrator Emma Webb at ejw@mcleods.co.nz, preferably by 30 November 2013. We strive to speak in plain English, so please leave out the jargon.

· LawTalk 833 · 6 December 2013

SI TUATIONS VAC ANT

IN-HOUSE COMMERCIAL PROPERTY LAWYER This position combines exposure to the best and largest commercial property transactions in New Zealand with an organisational culture refreshingly different from that of the law firm. Mansons TCLM Limited is New Zealand’s leading private commercial property developer. Examples of its developments include the 5 Green Star, 30,000m², Telecom Place in Victoria Street, Auckland, and the Lumley Centre office tower in Shortland Street. The successful candidate will be involved in all legal aspects of the development process, including site due diligence, development structure, construction contracts, development agreements, leases, and sale and purchase agreements. Despite the size of our developments, we are a relatively small team that works closely together. The position involves dealing directly with the principals and decision makers - and being in-house, you only have one client to deal with. Candidates should have at least 4 years’ commercial property law experience. The remuneration package will reflect the experience of the successful candidate, and based on 4 years PQE will, to start with, involve a salary of $85,000, plus company car and generous annual performance bonuses according to individual performance and company profitability. Applicants should submit their CV to the CEO Glen Heath at glen@manson.co.nz, prior to 20 December 2013.

SOLICITOR 3 – 4 years experience Willis Toomey Robinson Scannell Hardy is a well-established, progressive Legal Practice with offices in Napier and Hastings, delivering exemplary service to our growing, large client base. We have an exciting opportunity available for a Solicitor with 3 – 4 years post-qualification experience to take over the significant client base of a retiring practitioner. A keen interest in property, trusts, estates and general commercial law is a pre-requisite. Client relationship skills, an aptitude to deliver innovative solutions and the ability to work in a team offering a high standard of professional service, will be your strengths. This is a challenging position with excellent future prospects. We are committed to the ongoing education of all our staff and will assist you to develop excellent skills. To apply for this position, applicants will need to hold a current New Zealand practising certificate. Please post your Curriculum Vitae, together with a covering letter to: The Practice Manager Willis Toomey Robinson Scannell Hardy Private Bag 6018 Napier Applications close 12 December 2013 0508 HR SHOP / Level 1 - 182 Vivian Street Po Box 7031, Wellington South

CALL FOR EXPRESSIONS OF INTEREST FOR APPOINTMENT AS PRINCIPAL ENVIRONMENT JUDGE (AUCKLAND OR WELLINGTON) The Attorney-General wishes to hear from suitably qualified persons who would like to be considered for appointment as Principal Environment Judge. In addition to appointment to that position the successful candidate will also be appointed a District Court Judge and Environment Judge. To be eligible for appointment candidates must have held a practising certificate as a barrister or solicitor for at least seven years. Appointments to the Environment Court are made by the Governor-General on the recommendation of the Attorney-General following consultation with the Minister for the Environment and Minister of Māori Affairs. The Governor-General, on the recommendation of the Attorney-General, may appoint any Environment Judge as Principal Environment Judge. The Attorney-General is conscious of the value of increasing diversity on the District Court bench generally and therefore seeks to encourage expressions of interest from qualified women as well as those from under-represented ethnic groups. All eligible persons who complete an expression of interest form will be considered. Appointments are based on merit. The criteria for appointment include: • Excellent management and leadership skills. • Demonstrated knowledge and wide application of the law, in particular the Resource Management Act 1991, and overall high quality as a lawyer demonstrated in a relevant legal occupation. • Personal qualities such as honesty and integrity, impartiality, good judgement and the ability to work hard. • Excellent oral and written communication skills. • The ability to absorb and analyse complex and competing factual and legal material. • Awareness and sensitivity to the diversity of New Zealand society. • Knowledge of cultural and gender issues. A copy of the document setting out the process and criteria for appointment and a copy of the Expression of Interest form are available at www.justice.govt.nz Persons interested in appointment are asked to complete an Expression of Interest form, provide a Curriculum Vitae and submit them to the Judicial Appointments Unit by 5pm on Friday, 20 December 2013. All expressions of interest will be handled with the highest degree of confidentiality.

LawTalk 833 · 6 December 2013 ·