Lawtalk 841 by New Zealand Law Society

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Contents. The opportunity is there for talented lawyers and partnerships seem keen to recognise it, hear your ideas and allow you to give it a go. – Govett Quilliam partner Alice Tocher.

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

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Our Profession, Our People Practising Well

What are the signs to look for that indicate someone you care about may be experiencing problems with their gambling?

The business of law

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If lawyers work in high trust teams, not only will their lives be pleasanter, but their practices will be more efficient and more profitable.

Gallavin on litigation

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In one of the 20th century’s most publicised miscarriage of justice cases, Hurricane Carter was convicted of a triple murder not once but twice and served 19 years in prison before his exoneration in 1985.

Courtroom practice

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Jury practice – suggestions based on experience. Class action litigation – an important revolution in our legal culture.

Inspectors’ briefcase

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Feature

Reconciliations and certification.

Taranaki

Opportunity for talented lawyers

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30 32

Turei Mackey

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Financial markets law

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Raising equity funds under the new liberalised IPO. Financial Markets Conduct Act liability regime.

Law reform

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A summary of the new workplace safety regime.

NZLS CLE upcoming programmes Law Foundation

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Letters to the Editor Coming up

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Lawyers Complaints Service Classified Advertising

LawTalk takes a look at legal practice in one of New Zealand’s regions – Taranaki.

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LawTalk 841 · 9 May 2014 ·

From the Law Society Rajan Rai Practising law can be very rewarding, regardless of where you work. Just as there are particular attractions and rewards for those practising in the big cities, there are particular rewards and benefits for those who work in the regions. A good proportion of New Zealand’s lawyers work outside the four main cities of Auckland, Christchurch, Hamilton and Wellington (including the Hutt Valley). In fact 2,721, or 23.2%, of this country’s practising lawyers are based outside these main centres. An even bigger percentage, 35.6%, of New Zealand law firms can be found outside those four cities. In this issue of LawTalk, we feature a snapshot of what it is like working as a lawyer in one of the regions – Taranaki. The dairy industry probably comes to the minds of most New Zealanders when they think about Taranaki, and this – along with agriculture generally – is an important aspect for many lawyers in our district. So, too, is the oil and gas industry, which is the biggest contributor to Taranaki’s GDP. Over recent years I have heard or read the words “work-life balance” frequently. One of

· LawTalk 841 · 9 May 2014

the many appeals of working outside our four main population centres is that lawyers often find a preferable work-life balance. But that is just one of the attractions. Diversity of practice is another. Quite often, too, there is an opportunity to specialise in one area of law while spending some time in general practice areas. In my experience, and the experience of many others I have spoken to, working in the regions can provide a lawyer, particularly a younger lawyer, with exposure to a higher level of work compared with the colleagues they know who work in the four big cities. While that is not, of course, always the case, it does happen frequently. There is also something about collegiality in smaller centres that has a different quality. It shows in very many ways, again quite differently to the big city environment. Interestingly, one of the reasons I have come to call Taranaki home – and the place I definitely prefer to practise – came about because of the compulsory “country service” that used to be a feature of teaching in New Zealand. My father was a teacher and undertook his “country service” near Stratford. But there is anything but a compulsory aspect to my choice. I practise in Taranaki because that is my choice. There’s no other way I would like it to be. Rajan Rai New Zealand Law Society Taranaki branch 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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News Points Access to justice for disabled The United Nations will ask the Government to explain whether New Zealand law provides access to justice for people with disabilities engaged in the statutory dispute resolution process with regard to adequate funding, procedural fairness and reliable evidentiary procedures under New Zealand’s Accident Compensation scheme, Acclaim Otago said in a 23 April media release. Acclaim Otago received New Zealand Law Foundation funding to prepare a shadow report to the United Nations Committee responsible for the Convention on the Rights

of Persons with Disabilities. The Committee of Disability Experts met in Geneva in mid-April for a pre-sessional working group. It has selected the most pressing issues around access to justice from Acclaim Otago’s report and the New Zealand Government must now prepare a formal and detailed response for the committee’s consideration. “ACC was designed as a system to provide access to justice for all New Zealanders,” says Mr Warren Forster, the main author of the Acclaim Otago report. “We can now have a debate about how access to justice for people covered by ACC can be improved. The aim is to reconstruct ACC into a world-leading personal injury system that actually does what it was designed to do.”

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First justice symposium New Zealand’s first Leading Justice Symposium was held at Parliament on 29 April. This symposium brought high-calibre experts together to discuss and share “valuable insights on justice issues and how to address the changing nature of crime,” Justice

Minister Judith Collins said. International guests and panellists came from England, Australia and Singapore. Ms Collins asked the symposium to take a 10-year horizon approach and provide the Government with fresh thinking around reducing both crime and victimisation.

Judicial independence restored A Turkish court decision that preserves judicial independence and the separation of powers has been welcomed by the International Bar Association’s Human Rights Institute (IBAHRI). The Turkish Judicial Reform Act 2014, signed into law by President Abdullah Gül on 26 February, aimed to restructure the governance of the judicial system in Turkey. In particular, the law altered the regulatory powers of the High Council of Judges and Prosecutors (HSYK), transferring control from the HSYK to the Minister of Justice on

matters including the appointment of judges, the management of judicial disciplinary investigations and the selection of judicial training personnel and HSYK staff. The Constitutional Court of Turkey recently overturned controversial provisions of this act. “Judicial independence is an essential foundation for any democratic system,” IBAHRI co-chair Baroness Helena Kennedy QC says in a 25 April media release. This “fundamental principle”, she notes, is protected under article 159 of the Turkish Constitution.

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LawTalk 841 · 9 May 2014 ·

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Taranaki OPPORTUNIT Y FOR TALENTED L AWYERS Feature & photography by Turei Mackey

LawTalk 841 路 9 May 2014 路

Rajan Rai

The New Zealand Law Society’s Taranaki branch President, is a partner of Till Henderson in New Plymouth

ver since he arrived in New Zealand as a refugee from Idi Amin’s Uganda in the early 1970s, Taranaki Law Society branch President Rajan Rai has called the central North Island, and in particular the region of Taranaki, home. Originally settling in Stratford, his father served as a country teacher before moving his four children to Tokoroa where he worked in an accounting department. On graduating from the Otago University law school, Mr Rai began his legal career in Dannevirke before returning to Taranaki. “In Dannevirke I was learning to draft wills, and farm conveyancing yet I wanted to get into litigation but there just wasn’t the scope there at the time,” he says. “I really wanted to test myself in the area of litigation and gain further training in the profession. My uncle said his friend, a solicitor, was looking for a young lawyer to take on board

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at his offices here in Stratford. That was back in 1984. Within two to three years I was, at least compared with my friends who went to the cities, doing work at a much higher level in the courts.” He credits the support and network of lawyers around Taranaki and how he could approach senior solicitors with ease, asking if they could guide him on how to do various types of work correctly. “Even in court if you did something ‘wrong’, the senior lawyers would critique you in a constructive manner about your performance. “It just comes with the territory in a provincial area and while the young lawyers aren’t spoon feed, they will be helped after court on how they might have done something incorrectly or other ways to address a topic or issue, which is really the best education a new lawyer can receive.”

Areas of work for lawyers While there are lawyers who work in particular

fields, many still work in general practice to bolster the workload and in the provinces generally a lawyer will have skills across a broad range, says Mr Rai. “I could be doing a criminal law trial one week and the next, asset or estate planning with farming clients on substantial assets. The following week it might involve working on leases for the regional or district council, so totally different areas and not operating at a low level, which can bring about its own challenges. “It does mean lawyers have to put in long hours covering a range of areas whereas it could have been easier, although not as economically sound, to lock myself into one area of practice and just maintain that.”

Lawyer collegiality Robert England, who works as partner at the Eltham office of Thomson, O’Neil & Co, says while the collegiality among lawyers in the regions may not be as strong as it was in previous years, the tradition of assisting fellow lawyers is still there in some regard. “It works for the benefit of the clientele, I suppose, because it is a different situation when you know you can converse with fellow lawyers, particularly if you need to convey an issue which has arisen. “An example was when we had some company representatives visiting the area, we hosted a luncheon and invited fellow South Taranaki lawyers and gave a chance for us all as a group to discuss the important issues in Taranaki with the company. “Now that is not to the disadvantage of the client obviously, and the better everyone is with the knowledge of certain issues, the better the relationships are between client and lawyers and the lawyer fraternity itself.”

Limited resources? Mr Rai says the myth that resources for lawyers are limited because they work in a rural area or a small town is no longer valid in today’s world. “I think in the old days there might have been an element of truth there because libraries were so expensive to update and maintain. “Although every law firm had its library, and there was a Law Society library, it was probably not at the level of libraries in the big cities, so it was challenging at times to be able to put together the research. “Of course now we all access those same resources online via digital services.”

Location · Total practising lawyers · Average years in practice

New Plymouth · 122 · 17.4 years 65

57 Hawera · 14 · 21.6 years 9 5 Stratford · 6 · 27.1 years 5 1 Other · 12 · 13.4 years 8 4 Two biggest contributers to Taranaki's GDP Oil & Gas

Agriculture

LawTalk 841 · 9 May 2014 ·

New to the region If you had asked Alice Tocher in 2009 if a career move to Taranaki would see her working in a highly technical industry while also becoming a partner of a law firm, she would have queried moving to a part of the country she barely knew. “In all honesty, I had only been to the Taranaki once before and that was as a child on a family vacation. So when my husband had to move here for work I started asking family and colleagues in Wellington about legal jobs in a region I knew little about.” She was building her budding legal career in the Wairarapa and then Wellington, mainly in the area of property rights, when her husband had to move to Taranaki in 2010 for his work as a top dressing pilot. After a recommendation from her sister’s flatmate, she successfully applied for a job at Govett Quilliam’s Inglewood office and has since climbed the firm’s career ladder with success. Ms Tocher was recently made a partner at Govett Quilliam in New Plymouth at the age of 32 and has built a new career specialising in the oil and gas industry.

There is a huge client base out there in provincial New Zealand “I am really proud to have become a partner here at Govett Quilliam at such a young age, although I am aware that there are a few other partners my age at some of the other Taranaki firms,” she says. “When people ask me what are the differences to working in the provinces instead of a major city like Wellington I guess it would be that fast tracking in terms of career progression. The opportunity is there for talented lawyers and partnerships seem keen to recognise it, hear your ideas and allow you to give it a go.” She says that one of the reasons law firms in the provinces are seeking new lawyers to the region is providing a succession plan for their business.

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“I arrived at a time when the firm was looking around, wanting to create some long-term succession plans. The partners are very clear on that fact and I guess I was the enthusiastic lawyer who was proud to be here.” She adds that some provincial firms don’t have such succession plans in place and could be waiting for new lawyers to enter the region and come knocking on their door as she did. “Those lawyers who grew up in provinces will know that you don’t regress there. In fact the opposite. There is a huge client base out there in provincial New Zealand for those lawyers if that’s what they want and you can mix a lovely lifestyle with good practice.” Richard Natusch, 41, is currently in his first legal job after being admitted in 2008. After 14 years working for Wellington City Council in various regulatory roles while studying law parttime at Victoria University Mr Natusch decided it was time to make the career change in 2013. He joined Till Henderson in New Plymouth as a staff solicitor last year, covering the general law work of property, sale purchases, estate, wills, power of attorney, deeds and gifting. “I guess an advantage for me when I decided to become a lawyer was that I wasn’t fixated on staying in Wellington,” he says. “Finishing my law degree I saw the job market in the main centres was highly competitive with many law graduates wanting to work in Wellington or Auckland. “There has always been that hearsay of legal graduates who start a career in the provinces and say how they got more opportunities and responsibilities as a rookie lawyer. And for me my personal goal was to acquire as much experience and opportunity as possible, so I knew moving to the provinces was the best decision.”

Balance of work and life He views his life in New Plymouth as hardworking but also relaxing compared to the life of a professional in a large city. “The one enjoyment I’ve had moving to New Plymouth has been, in my opinion, the better lifestyle,” says Mr Natusch. “You do the work but I never stay in the office

Alice Tocher

Is a partner of Govett Quilliam in New Plymouth

or continue work into the night at home. It is usually finish at 5pm every day and enjoy the nice climate, or jog alongside the coastal area. Sounds rather simple but it does improve your output in work. “The reality is a legal career is a very stressful one and it doesn’t matter which city or town

you work in as a lawyer, there will be that level of stress. “You hear of horror stories about new or young lawyers being driven into the ground by work overload. But if you don’t have that balance between your work as a lawyer and life then really what’s the point?”

Farming, Oil and Gas “Economically speaking the region of Taranaki has always been in strong health, at least stronger than most regions,” says Rajan Rai. “This is due to the rural sector. The farming payouts are strong so the farmers have a lot of disposable income and they invest it. And the oil and gas industry is still going strong.” When it comes to provincial New Zealand, the economic spine is traditionally linked to

farming – in Taranaki’s case a strong dairy farming sector, and with that comes a lot of work for rural-based lawyers. “To be a rural lawyer you do need to have an interest in farming, because if you’re not then it probably isn’t worth it,” says Robert England. “The more you know about farming the better lawyer you will be. If you know how a farm actually works on a day-to-day basis you are

LawTalk 841 · 9 May 2014 ·

going to be that much better as a relationship property lawyer when it comes to giving advice to the farmer than if you didn’t.” However not all work is done just in Taranaki. Mr England says clients who started off with small dairy farms like to invest off the farm to balance their investment strategies, which includes everything from buying commercial property in the Waikato to extra farmland in Southland. “Our clients are all over New Zealand in the literal and commercial sense from Cape Reinga to the Bluff. And Taranaki is a lot like Southland in the respect that a lot of clients from the rural sector will invest outside of the provinces which opens our work beyond the borders of South Taranaki.” Alongside a strong agriculture industry, Taranaki is also home to the nation’s oil and natural gas production and is estimated to generate $nz 2.5 billion in GDP for the country, making it the most profitable Taranaki industry in terms of GDP. While Alice Tocher works in other areas, including rural law, the majority of her work these days revolves around the oil and gas industry. “Oil and gas is dealing with much of what I

already did in Wellington in property law, but in a much more specific industry. There is that huge focus around liabilities which has been a good area for me to sink my teeth into as well,” says Ms Tocher. “Just being willing to try areas of practice that you originally thought you might not be initially interested in is a huge step in a place like Taranaki due to its unique economy.” A secondment opportunity with two companies gave Ms Tocher an in-depth understanding of the oil and gas business and as a result she now helps manage a team at Govett Quilliam focusing specifically on the industry. “Those secondments meant that as a lawyer I was being thrown into the deep end of an industry that uses its own type of language. A wave of jargon, abbreviations and anagrams would be hurled in your direction every day,” she says. “I was the only legal person on the ground in Taranaki, working closely with a legal team of 30 based in Sydney. So I found it interesting with how Australian legal teams did things in comparison to New Zealand legal teams.”

Richard Natusch

Joined Till Henderson in New Plymouth as a staff solicitor last year

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Monica Ryan has rejoined Lane Neave as a partner after six years at another Christchurch law firm. Monica’s practice focuses primarily on commercial property, trust and asset management Monica Ryan and all aspects of rural and residential property transactions. Ashley Taggart has been made a partner of Lane Neave. Ashley joined the firm in 2006 and works in the commercial property team. He is experienced Ashley Taggart in commercial property and corporate law, franchising and the acquisition and divestment of businesses.

Anthea Coombes

Christina Lee

Anthea Coombes is now a senior associate in Glaister Ennor’s property team. Anthea was formerly a solicitor and then associate with the firm. New to Glaister Ennor is Christina Lee who joins as a solicitor in the family law team. Gus Stewart has joined Matthews Law as an associate, advising on competition, regulatory and consumer protection law. Before joining the firm, Gus worked as an

in-house counsel at 2degrees and solicitor at Minter Ellison Rudd Watts. Matthews Law is a specialist competition law firm based in Auckland. Kensington Swan has appointed three new partners. Ish Fraser is a property law specialist with particular experience in leasing, transactional and seismic issues. He has Ish Fraser been with the firm for 24 years and will continue working with the firm’s other property partners: John Meads and Matthew Ockleston. Nicky McIndoe practises resource management law. She Nicky McIndoe has experience in the transport, energy and local government sectors, and assisting with consenting and board of inquiry matters. Nicole Xanthopol is a banking lawyer with an established reputaNicole Xanthopol tion in institutional and corporate finance transactions. She comes to the firm from being a partner in the banking department at Linklaters in London. David Chisnall has returned to the partnership of Bell Gully. David is a commercial property lawyer who specialises in the structuring, procurement and delivery of large-scale development projects. He has led external legal teams advising public and private sector clients on many nationally significant projects and joint ventures across various industries.

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Our Profession, Our People

ON THE MOVE

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LawTalk 841 · 9 May 2014 ·

Our Profession · Our People On the Move, Continued...

Geoff Hosking

Lydia Wallis

Four lawyers have joined Anthony Harper’s Auckland corporate advisory team. Geoff Hosking joins the partnership, taking the number of partners in the AuckVictoria Bayly land office to 10. Geoff advises on all aspects of commercial law but with particular focus on mergers and acquisitions, IT and venture capital. Lydia Wallis and Victoria Bayly have joined the team Luke Bodle as commercial/corporate solicitors. Victoria relocated to the Christchurch office at the end of April. Luke Bodle has been appointed as an associate – corporate/commercial, specialising in intellectual property and technology, media and telecommunications. Thompson Blackie Biddles has promoted Sam Greenwood to associate. Sam is experienced in commercial property law, specialising in acquisitions, disposals, syndication, leasing, subdivision and unit title development projects. He has recently been engaged to lecture the property law paper for the Bachelor of Property at Auckland University. Kris Morrison has been made a partner of Parry Field Lawyers. Kris has been part of the Parry Field team since 2002 and is a leader in the firm’s commercial/business and immigration teams. He also has experience in property, trusts, charities and intellectual property.

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New Waikato Bay of Plenty President Hamilton sole practitioner Kerry Burroughs was elected the Law Society’s Waikato Bay of Plenty branch President at the branch’s annual meeting on 16 April. Mr Burroughs succeeds Bruce Hesketh, who stepped down after three years as branch President. Being a lawyer was something Mr Burroughs always wanted to do, but he did not begin his working life in the law. He took the opportunity to join the first intake of the then new Waikato University Law Faculty, becoming one of the school’s first group of graduates. He was admitted in 1994, the same year he married Nancy. He and Nancy have three children. Two are attending Otago University and the youngest is in year 12 at a local high school. In 1995, Mr Burroughs began practising, starting at Frankton Law. After three years there, he set up on his own account. He has been a Waikato Bay of Plenty District Law Society and then branch Council member on and off since 2004. He has also been the Law Society representative on the Hamilton District Court stakeholders committee. In 2011 and 2012 he served as the Vice-President of the Waikato Bay of Plenty branch. The major issue he perceives for the next couple of years is “ensuring that we can provide cost-effective professional legal education to our members”, he says. “Professional legal education is an issue that will concern all practitioners whether in sole practice, employed solicitors or in

partnerships. It is important that continuing legal education becomes a stimulating experience and not a burden. I believe that with some vision this can easily be achieved. “I would also like to encourage a reemergence of a sense of collegiality within the profession to enable members to enjoy productive relationships in a congenial environment. I am also concerned that the welfare of younger lawyers is promoted and that they feel connected to the profession.”

Court etiquette seminar The next Waikato Bay of Plenty Young Lawyers event will be a court etiquette seminar presented by Hamilton barrister David O’Neill. The seminar will be held at the Waikato Bay of Plenty Hamilton office on 22 May at 5:30pm. Attendance can qualify as one hour of CPD. The cost is $5 and drinks and nibbles will be provided. RSVP to Roxy Dhanjee at roxy.dhanjee@mccawlewi.co.nz.

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Empathy key to employment law success “Empathy” is a personality trait fundamental to a great employment lawyer, according to Dundas Street’s newest staff member, David Traylor. He speaks passionately about employment law, a field he went into fresh from law school in 2006. “Employment law is, second perhaps only to family law, in requiring empathy. A job is so connected to a person’s life and how they project themselves onto the world. It is very emotional and you need a good deal of empathy to deal with those situations.” Insight and compassion help to build a relationship as a trusted advisor who really understands a client’s business. A deep knowledge of a client’s business is crucial in order to be “very responsive, very accessible, and give clear correct advice,” he says. Mr Traylor’s employment law career began at Minter Ellison, when he joined the employment law team as a new graduate. He found the very human area of law a “nice fusion” of advisory and litigation work – and never looked back. Like many young lawyers, after five years

Insight and compassion help to build a relationship as a trusted advisor who really understands a client’s business

Dundas Street’s newest staff member David Traylor (right). This was taken in Uganda, one of more than 25 countries he visited during a seven month journey back to New Zealand from the United Kingdom.

on the ground in New Zealand, he decided to pack a bag and explore overseas work opportunities

(and see the world). And, like many young lawyers, he ended up living and working in London. Initially, he secured an in-house employment law advisor role at a “very large” financial services company. In this position he rose

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to the unique challenges presented through an in-house role at the same time navigating his own way through “key differences” in the United Kingdom’s employment law. After eight months, he moved to an employment law advisory position with the Treasury Solicitor’s Department. The department describes itself as “a non-ministerial government department providing legal services to the majority of central government departments, often representing government departments and other publicly-funded bodies in England and Wales.” Effectively, it is the government’s law firm, Mr Traylor says. Mid-way through 2013, Mr Traylor and his wife decided to make a slow journey back to New Zealand (there were seven months and more than 25 countries along the way). Now grounded at boutique law firm Dundas Street, Mr Traylor is re-establishing a place within the New Zealand employment law environment. LawTalk 841 · 9 May 2014 ·

Our Profession · Our People On the Move, Continued... Anne Toohey has joined Canterbury Chambers in Christchurch and is practising as a barrister sole. Anne previously practised in both civil and criminal litigation at Raymond Donnelly & Co in Christchurch and more recently at Crown Law in Wellington. Anne will be practising in all areas of civil litigation, including employment, insurance, judicial review and insolvency work. Wynn Williams has made Richard Hern a litigation and insurance partner and Ash Hill a corporate partner. Both Richard and Ash are based in Auckland. Richard was previously Richard Hern at a boutique insurance practice for 13 ½ years and before that was in-house at a major insurer. He is well known in the insurance market, particularly in the liability and health and life insurance area. Ash Hill He is also involved in litigation and dispute resolution. Ash joins from a large national firm. He specialises in corporate law including mergers and acquisitions, venture capital and private equity capital raising. He also has deal making capability and transactional experience. Guy Carter joins the Wynn Williams’ litigation and dispute resolution team as a solicitor. James Bull joins the Auckland corporate team as law clerk. Jackson Roland joins the Auckland corporate team as a solicitor. Gault Mitchell Law has made Lisa Fraser a partner. Lisa is originally from Invercargill and joined the firm in 2002. She has a particular focus on advising clients on the establishment of family trusts, estate planning,

Collegiality a priority for Nelson branch Newly elected Nelson branch president Rob Somerville’s main goal is to ensure the branch remains a collegial place to practice law. The branch’s lawyers have “reasonably good” collegiality already (25% of the branch turned up to the latest Annual General Meeting ) – but it is important the city’s lawyers continue to know each other, Mr Somerville says. Mr Somerville is well acquainted with most lawyers in the region, and has a broad understanding of the justice sector. In 1997, he moved to the area from Whanganui to work as a general litigator. He then narrowed his focus to criminal and family law in 2002 and for the last four years has worked exclusively as a family lawyer. However, he remains connected to the criminal justice system. He is Nelson’s Restorative Justice Trust chair. He says he holds this position because over the years he spent in the court “it is clear [to him] that victims need to have input in the justice system for everyone involved”. He is also the District Inspector of Mental

Health in the area, and is hopeful he will be reappointed when his three year term is up for renewal in June. People detained by the state need to have good access to their legal rights, he says. “It is an important role and I enjoy meeting with the users of mental health services.”

property development and relationship property agreements.

L AW F I R M N E W S

Erin Burke

Phil Hyde

Norris Ward McKinnon has appointed two new associates. Erin Burke is a senior member of the litigation and employment team, specialising in employment law. Phil Hyde specialises in commercial contracts and large-scale commercial property deals and is a senior member of the commercial corporate team.

Corin Maberly

Zoë Aldam

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· LawTalk 841 · 9 May 2014

Our Profession · Our People

Particularly special Rebecca Dempsey’s admission ceremony, in the Whanganui High Court on 23 April, was particularly special. Rebecca’s mother, Kathryn Crooks, moved the admission and the presiding judge was Rebecca’s aunt, Justice Sarah Katz. Rebecca graduated from Otago University last year with a first class honours degree in law, having completed her degree requirements in Canada. She Rebecca Dempsey (right) with her mother Kathryn Crooks (left) and aunt, will be working at Simpson Justice Sarah Katz. Grierson in Auckland. It is not just her mother and aunt whose Dr McElroy was also Mayor of Auckland from footsteps Rebecca is following. Her great 1965 to 1968. Rebecca’s mother is a partner grandfather was Dr Roy McElroy, a partner of Armstrong Barton and a former President of McElroy, Duncan and Preddle in Auckland. of the Law Society’s Whanganui branch.

Second annual moot The New Zealand Law Foundation is the primary sponsor for the Wellington Young Lawyers’ Committee’s second annual mooting competition. The competition, which is also supported by the New Zealand Bar Association, starts this month and will conclude in June. The

Bar Association will provide group training to all participants and mentoring for semifinalists and finalists. The mooting competition will simulate an appellate court hearing in which teams of two counsel will be pitted against each other. Counsel will be required to submit

$15,000 This was the award in the first New Zealand case to grant exemplary damages for negligent conduct causing injury following the implementation of the Accident Compensation Act 1972. McLaren Transport Ltd v Somerville [1996] 3 NZLR 424 was a case where a garage employee over-inflated a tractor tyre so negligently that it exploded, causing the plaintiff serious injuries. The award was upheld in the High Court by Justice Tipping. “Exemplary damages for negligence causing personal injury may be awarded if, but only if, the level of negligence is so high that it amounts to an outrageous and flagrant disregard for the plaintiff ’s safety, meriting condemnation and punishment,” Justice Tipping said in his judgment.

points of appeal and written submissions before the hearing. The heats will feature 12 teams. The four highest ranking appellant and respondent teams will compete in the semi-finals. In turn, the two highest ranking teams will compete for the title of the New Zealand Law Foundation YLC Mooting Competition Champions 2014.

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

Whanganui Rebecca Alice Dempsey Hannah Kathryn Smith

Auckland Aaron Maxwell Adams Lama Mamoon Kahil Ebrahim Almoayed James Thomas Ashwin Erina Margaret Baars Christopher Lee Baker Stephanie Rachel Ball

Sen Bao Nicolette Susan Barrett Harriet Amy Beattie Hamish Antony Beckett Luke Timothy Benson Peter Anthony Bevan Jessica Olive-Ann Walden Bevin Sarah Julia Bair Sophia Bogle Nicola Jane Brazendale John Quentin Broadbent Tallulah Rose Crowe Browne Kate Alexandra Michelle Bushby Henry John Cairns Stephanie Ella Cann Ashooja Chandra Rohan Chauhan Richard Chen Francine Ying Lai Chye James Cameron Cleland Rohan Stuart Cook Vaughn Akuhatu Ming-Fong Clyde Cooper

Delia Anne Cormack Mairead Cusack Luke James Cutfield Danielle Rebecca Duffield Charlotte Emily Forster Callum Stuart Frederic Richa Sulochana Gejji Malvern Gwizo Victoria Marijana Hadlow Nathan Edwin Hansen-Thorpe Kate Alexandra Haywood Kim-Sara Hope Hohaia Nicholas Mark Hornstein Xiao Huang Felicity Jane Hullah Richard Douglas Hutchison Samuel Leonard Jackson Marion Grace Kennedy Daniel Ki Hoon Kim Eddy KJ Kim Sohyum Kim Varoon Vikash Kumar

Anna Jean Sumei Lee Joo Yeon Leenoh Katherine Tessa Lynch-Watson Steffany Lisha Meredith Laressa Angela Mills Tafaogalupe Mulitalo Michael Alexander Mullins Thomas Nkomo Jared Graham Noonan Fiona Jane O’Malley Alice Louise Maie Osman Waruna Lasintha Padmasiri Arnan Pritesh Parbhu Mikayla Anne Plaw Sharmila Devi Prasad Sophie Evelyn Wyatt Riley Andrew Stewart Rose Edwin Jonathan Sheppard Minjoon Shin Alice Josephine Snedden Laura Ellen Stills Megan Louise Strickett

Katriona Lilla Tautau Raaniera Anaru Rawhio Te Whata Anneke Frances Theelen Andrea Pravina Thilliampalam Natalie Elizabeth Town Roderick John Turner William Peter Walsh David Matthew Webb Sophie Wharam Edward Robert Craig Willis Claire Elizabeth Wilson

Dunedin Maree Dawn Adams Rory James Barton Freiya Kathleen Campbell Emma Kate Hunter Bridget Victoria McClean Morton Maria Antonia Pozza

LawTalk 841 · 9 May 2014 ·

Practising Well

Gambling – when does it become a problem? By Melanie Shaw When people think of addiction or a problem behaviour they often think of substances such as alcohol or drugs, but another common addiction which can have devastating impacts on individuals and their families is gambling. Of course not everyone who goes to the casino on a Friday night or does the weekly lotto has a gambling problem. Like anything else, there is a broad spectrum from people who never gamble to people who lose everything because of their gambling. The different levels are: • Social gambling is casual and fun. The person may gain enjoyment from the gambling or social company associated with it. • Professional gamblers make their living by gambling and consider it a profession. They are skilled in the games they choose to play and are able to control both the amount of money and time spent gambling. Professional gamblers are not addicted to gambling. They patiently wait for the best bet and then try to win as much as they can.

•

Heavy gambling is when the person gambles often or with large amounts of money, or both. Their moods and emotions are likely to depend on gambling. • Problem gambling is when the person is less and less able to resist the impulse to gamble. The gambling affects their moods, relationships, work, study and finances in a negative way. • Compulsive gambling is when the person is unable to resist the impulse to gamble. The person is experiencing an addiction and their wellbeing is badly affected by the gambling. Some people progress through each level over time. Others may reach the level of problem or compulsion very quickly and some may stick within the social gambling realm without ever experiencing any problems. For those at the problem or compulsive end of the spectrum gambling is likely to also be affecting others around the person gambling. Gambling has become a problem if it affects a person’s wellbeing in any way and is also a problem if it is affecting those around them. So what are the signs to look for that indicate someone you care about may be

experiencing problems with their gambling? Gambling might be a problem if the person is: • spending more money and time than intended on gambling; • feeling life is boring when they are not gambling; • finding their family and friends are becoming less important than their gambling; • seeing gambling as a way to get out of debt; • taking unexplained absences from work; • constantly borrowing money to pay ordinary bills or expenses; • start selling personal items, like their TV or stereo, to get money or take other people’s property for the same reason; • becoming secretive about money; • becoming secretive about where they are and what they are doing; • starting to acquire new credit cards; • suddenly starting to avoid certain people (eg, they might owe them money); • dipping into savings or other assets; or • losing interest in social activities or refusing invitations they would usually accept. Someone with a gambling problem might try to cover up by: • coming up with rational and reasonable excuses to explain absences (eg, working late, car breaking down, visiting friends, studying at the library); • hiding bank and credit card statements, maybe saying the bank never sent them; • offering excuses or telling lies to explain how they have lost money (eg, computer error in their pay, losing their wallet, unexpected expenses, bank made a mistake); or • working overtime or getting a second job to cover debts.

But don’t despair, change is possible It takes persistence, patience and courage to change any behaviour, but it can be done and changing gambling behaviour is no different. Addictions can be a large part of people’s strategies for coping with other distress. That means that it is unwise to remove one coping strategy without replacing it with another. Recovery from addictions can

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therefore be a chance for people to reconsider their life as a whole, and – with the right support – change their life for the better. It is not uncommon for people on a journey of recovery from addiction to have relapses. While these may be painful, they can also be seen as great opportunities for the person to learn more about what things in their life make them vulnerable to the addiction and put further strategies in place.

What can you do to help someone you are concerned about? It can be hard trying to help someone who gambles, especially if they do not think they have a problem or do not want to stop. Discussing the issue directly can be confronting for both yourself and the person who gambles. So make sure you find a time that is suitable to have the discussion, focus the conversation on your concerns and their gambling behaviour. Talk about what you are feeling. Describe the behaviour that makes you feel this way and the reasons for this. For example: “I’m concerned about you coming home late at night and I don’t know where you’ve

been. I worry because anything could have happened to you, you might have been in an accident or you may have hurt yourself.” Avoid “you” statements, such as, “you should…” or “you must…” as this can sound accusatory and blameful, which can lead to defensiveness, creating a communication barrier between you and the other person. Ask for their feedback, for example: “What are your thoughts?” By asking the other person to contribute to the conversation and letting them discuss their perspective, you are demonstrating that you are open and willing to listen without judging them. Listen carefully and repeat back to them your understanding of what they said. This can help the person to feel understood. Don’t be surprised if the person you are approaching is not ready for this discussion and don’t blame yourself if this is the case. Try to remember that changing behaviour is a tricky process and people have to be ready to make the changes for themselves. But showing that you care enough to raise your concerns allows the person to know you are there for them when they are ready. You can also provide them with the number

of the Gambling Helpline, 0800 654 655, which is a free, confidential service open 24 hours where trained counsellors can support someone with their gambling issue as well as offering support to people affected by the person's gambling such as partners, colleagues and friends. So if you have concerns about your own or someone else’s gambling there is help and support available. Don’t feel like you are alone in your situation. Reach out and make today the day you make a positive choice about your future. Melanie Shaw has 20 years’ experience working in the mental health field and has specialised in trauma therapy work in the United Kingdom where she has spent most of her career. While in New Zealand, Melanie has worked in in-patient settings as a senior clinician specialising in mental health rehabilitation and recovery with service users with high and complex needs. Melanie is now the mental health specialist at Lifeline Aotearoa where she works to support, develop and oversee mental health services with a significant focus on the National Depression Initiative and peer support services.

TRUST SPECIAL INTEREST GROUP UPCOMING MEETINGS 20 May 2014/ 8-10am Where: By webcast or attend NZICA Conference Centre; 12-16 Nicholls Lane Parnell, Auckland. Speakers: Justice Fogarty of the High Court of New Zealand (8.00 am – 8.55 am). Topic: Unconscionability & the function of the maxims of equity; Prest v Petrodel Resources Ltd [2013] UKSC. Juliet Moses, partner TGT Legal (9.00 – 9.55am) Topic: Winding up an express trust – Issues to consider.

15 July 2014/ 8-10am Where: By webcast or attend NZICA Conference Centre; 12-16 Nicholls Lane Parnell, Auckland. Speakers: Panel – Bill Patterson, partner Patterson Hopkins; Vanessa Bruton, partner TGT Legal; Pieter Holl, Pieter Holl and Associates Ltd. Topic: Questions & Answers session: Trusts & property relationship; trusts & tax; trust issues generally.

WHO WEBCASTS/ATTENDS THE TRUST SPECIAL INTEREST GROUP? Members consist principally of accountants, lawyers and trust officers. Trust SIG is one of the larger Special Interest Groups run through NZICA. It has two lawyers and two accountants as coconvenors.

WHAT DOES IT COST? You can webcast or attend just one meeting for $60.87 + GST and $121.74 + GST for two meetings. Annual subscription for a lawyer or accountant (who receive a discount using the promo-code: LAW2) is $200.00 + GST. There are 6 meetings a year. A further discount is available for firms registering more than one member.

CPD? Yes it qualifies for CPD! If you have a question regarding trusts and will be webcasting or attending the 15 July panel seminar, you are invited to send your questions to david.blackwell@nzica.com by 1 July. For further information regarding TSIG visit their webpages at www.nzica.com/auckland. To webcast contact David Blackwell at NZICA, Auckland ph (09) 917 5915 or david.blackwell@nzica.com.

LawTalk 841 · 9 May 2014 ·

The Business of Law

Lawyers, teams and the speed of trust By Emily Morrow Someone asked me recently why I write articles and I responded “Because I like to write and am interested in the dissemination of good ideas, whether they are mine or someone else’s”. Ideas about high trust teams particularly interest me because team functioning is central to the success of any venture involving more than one person. Hence this article. I am a linear thinker and used to think: “Here I am at point A. What is the quickest way to get from here to point B?” Although this was a seemingly efficient way to practise law, I now realise that sometimes one must “spend” some time to “save” even more time. My personal definition of efficiency has evolved. Lawyers tell me they aspire to have an efficient team that does things right the first time, meets or exceeds client needs, has high morale, communicates well, has low turnover and so forth. Despite these good intentions, time is money in the practice of law. It can be difficult to have the time to invest in and develop one’s team members. If that happens, trust levels within a team can deteriorate. When trust levels drop, team efficiency, effectiveness and productivity also suffer and revenue decreases. Lawyers who are too busy to invest time in their teams do so at their own peril.

Speed of trust In his book The Speed of Trust, Stephen Covey posits that trust is not just a soft, social virtue but is, in fact, a hard-edged economic driver. It’s a skill that individuals and groups can learn, perfect and incorporate into how they work together to become more profitable, collaborative and competitive. In other words, if lawyers work in high trust teams, not only will their lives be pleasanter, but their practices will be more efficient and more profitable. When a team operates at the speed of trust, things get done more quickly and accurately, there is less “friction”, morale and

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retention rates are higher and people have the information they need to do their jobs. I often say that the only way I will now work with others is at the speed of trust. It’s just too inefficient, frustrating and downright unpleasant to work any other way. Once one has worked at the speed of trust, believe me, there is no going back. What differentiates teams that work at the speed of trust? Such teams are those in which every team member has consistently high trust professional relationships with every other team member. In other words, it starts one-on-one with each person and then generalises to the whole team. If even one relationship in the team is low trust, it will “infect” all of the other relationships and the team as a whole. It’s kind of like one rotten apple spoiling the whole basket. Whether you are the team leader or a member of the team, it is your responsibility to have high trust professional relationships with everyone in your team.

Elements of High Trust Professional Relationships Individual high trust professional relationships are based upon the following: Interaction The type of interaction that creates high trust professional relationships is that which occurs appropriately, frequently and is high quality. It must happen often enough that team members can rely on it. The highest quality interactions are, of course, face-to-face, as these involve not only verbal content, but also facial expressions, body language, tone of voice and other nuances. It’s not essential always to have faceto-face interactions, but it is essential that team members do so often enough that it sets the tone for telephone conversations, email correspondence and other remote communications. The team needs to invest ongoing time and energy to build high trust professional relationships. The occasional team retreat, meeting or lengthy discussion may be admirable, but it alone will not suffice.

This becomes both very important and challenging for teams whose members are geographically distant from each other and who work together remotely. Leaders of such teams would be well advised to invest regularly in getting the team physically together when possible and utilising video conferencing frequently. Disclosure An excellent way to erode trust is to fail to share critical information with someone else who is then surprised (often unpleasantly) to learn this information indirectly. Even if team members have had a relatively high level of trust in the past, this will undermine it. Conversely, if team members and, in particular, the team leader, shares appropriate information with others and explains how the information impacts them, the team will be building high trust relationships. This does not mean violating appropriate confidences, but it does mean giving people the information they will need to make informed decisions about themselves, their work and their role in the workplace. Flexibility Some team managers can be described as “my way or the highway kind of people”, which is not a flattering description. Flexibility that contributes to high trust means acknowledging that things can be successfully accomplished in various ways and being open minded when one collaborates with other team members. This does not mean compromising excellence or moving towards mediocrity, but it does involve recognising that high performance comes in many shapes and sizes. High trust team members tailor their interactions with each other to accommodate varied interests, capabilities and perspectives and they do this seamlessly and naturally. They listen to each other respectfully, consider others’ suggestions, critically evaluate various approaches and together decide how to proceed. This is flexibility and it’s important whether one is drafting a document, negotiating a settlement, making management decisions,

interacting with a client or really anything else. It’s particularly important for the team leader to be flexible. Inflexible leaders stifle creativity, intelligence and responsibility and often produce low functioning, anxious team members. Although in the short run low flexibility leadership might seem efficient, in the long run, it’s exceedingly inefficient and counter productive. Count on it. Consistency over time If you who have had a child and/or a pet, you will know it’s critically important to be consistent in raising them. If they are greeted with love and support on one occasion and then inexplicably experience anger and rejection later, they may develop low levels of trust with others. Adults are much the same. It’s important to be consistently consistent in your relationships with other people and to do so over time. Building trust is cumulative and iterative. Good intentions Interaction, disclosure, flexibility and consistency will not alone build a high trust professional relationship unless good intentions are part of the mix. You must genuinely seek positive outcomes, want to support the success of others and be a good team player. Merely paying lip service to good intentions is insufficient, especially if your actions are at odds with what you say. If that occurs, you will be perceived as a hypocrite. Hypocrisy and high trust are at opposite ends of the same spectrum. Trust can be destroyed quickly and abruptly. Probably all of us have experienced this in a professional or personal context. Conversely, building a high trust relationship usually occurs slowly and incrementally, based on multiple small and seemingly inconsequential interactions. When building high trust relationships, excellent communication, collaboration and “friction free” work experiences will, with practice and focus, increase over time.

Mary, the well-intentioned and motivated team builder Mary is a senior partner in a successful law firm and is a practice group head of department. She is clearly smart, hard working and wants to have a high functioning team. However, when I interviewed her team members, some concerning themes emerged. Although Mary can be delightful and accessible on a personal basis, she sometimes presents as being quite brusque, if not sharp,

when interrupted in her work. Team members find this off putting and anxiety producing. She is very focused on being highly efficient in doing her work and sometimes does not invest much time in providing information to team members. Although Mary enjoys her team members and sometimes circulates “motivational” congratulatory emails to the team, she invests relatively little time in developing one-on-one relationships with them, learning about their lives outside of work and can be perceived as somewhat remote and cryptic. When I provided Mary with this feedback, she was quite surprised. To her considerable credit, however, Mary turned to me and said: “My top priority is to build a high trust team. I want to do this for the right reasons; that is to make sure that the work experience for everyone in my team

You must genuinely seek positive outcomes, want to support the success of others and be a good team player is as good as it can be. This is important, not just for financial reasons but because it is intrinsically right to do.” She asked how she could enhance the level of trust between herself and her team members and among her team members. Mary wants to lead her team by example. We discussed the “speed of trust” concept, as well as the above five elements of high trust professional relationships. I asked Mary to “rate” herself, on a scale of 1 to 10 (10 being an excellent rating) on the five elements and she did so as follows: • Interaction: Social context 8; work context, especially under stress, 2 or 3. • Disclosure: Low stress context 6 or 7; high stress context 2 or 3. • Flexibility: 4 or 5. • Consistency over time: Consistently volatile in her moods 4. • Good intentions: 9 or 10. Clearly, there was a direct correlation between Mary’s stress level and her ability to be interactive, disclosing and flexible. She needed to replace her consistent emotional

volatility with consistent lower emotional reactivity. I then asked Mary to rate her motivation level to cultivate high trust professional relationships on the same 1 to 10 scale. She responded without hesitation “I’m at a 10 on that one”. Mary then identified specific ways to enhance her interactions with her team members. She correctly stated: “My team will respond to what I do, not what I say I am going to do”. She committed to: • investing time getting to know each of her team members better personally and professionally; • being regularly available to team members by setting “office hours” for them; • scheduling a weekly team meeting in which she would solicit team interaction and actively listen; and • monitoring her own stress level and identifying techniques to calm herself down. Mary has done well with these initiatives and has moved on to other techniques to improve her leadership style. Her team members have noticed and commented on this and the general level of functioning is improving. It is a work in progress and it is moving in the right direction. Although at first Mary felt her efforts made her less efficient when doing her own work, she now realises that it was an excellent use of her time to enhance everyone’s efficiency. How would you rate yourself on the above elements of high trust professional relationship building? If you perceive any deficiencies, think about what behaviours you will need to change, start making changes, and then watch carefully how others respond over time. You will know when the team begins to work at the speed of trust; it will, simultaneously, be both quite subtle and extraordinarily obvious. Emily Morrow was a lawyer and senior partner with a large firm in Vermont, where she built a premier trusts, estates and tax practice. Having lived and worked in Sydney and Vermont, Emily now resides in Auckland and provides tailored consulting services for lawyers, barristers, in-house counsel, law firms and barristers’ chambers focusing on non-technical skills that correlate with professional success; business development, communication, delegation, self presentation, leadership, team building/ management and the like. Emily can be reached at www.emilymorrow.com. LawTalk 841 · 9 May 2014 ·

Gallavin on Litigation

What to do when you see an injustice? By Dr Chris Gallavin Monday 21 April 2014 – while we were all enjoying a public holiday “Hurricane” Carter died in Toronto aged 76. One of the 20th century’s most publicised miscarriage of justice cases, Hurricane Carter was convicted of a triple murder not once but twice and served 19 years in prison before his exoneration in 1985. On releasing Carter, United States District Judge H Lee Sarokin stated that the prosecution of Carter had been “predicated upon an appeal to racism rather than reason, and concealment rather than disclosure”. A Bob Dylan song, many books and a Hollywood blockbuster all paid tribute to the man at the centre of a gross injustice the legal system seemed ill equipped to adequately remedy. Here, I do not attempt to draw parallels between New Zealand and the charged social and political environment of late 1960s USA. But miscarriages do happen and, despite the majority of cases that seem to progress uneventfully through our system every day, it is those cases that get stuck or are processed seemingly in defiance of logic and open justice that come to represent the strength (or weakness) of our system as a whole. Whatever one feels about the guilt or otherwise of David Bain, Peter Ellis, Mark Lundy, Scott Watson and Teina Pora, it is cases such as these that will and have come to represent our system. For many they become the poster cases for substantive and procedural unfairness the likes of which leave the system injured if not generally weakened in the minds of the populus. When combined with a growing problem of access to justice across all jurisdictions (criminal, civil and family alike), one is faced with a serious problem of public fatigue the likes of which can erode key elements of societal cohesion, trust and the “kiwi-way” of fairness and equality (if there was ever such a thing in the first place). Lawyers and particularly litigators play a significant role in maintaining faith and engagement in the system of justice. What does not seem to be understood by

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parliamentarians is that a well-run and well-resourced legal infrastructure (aka an accessible regime of practitioners) actually helps the system along. It works to prevent and not create backlogs and generally ensures that the mechanical components of the system are well oiled. As litigators you may be generally understood as the ambulance at the bottom of the cliff, whereas the truth is often the opposite. Dissuading clients from litigation, particularly in light of recent procedural changes in both the civil and criminal jurisdictions, is as much a part of your practice as is the filing and seeing through of litigation. But not all problems are capable of a “legal fix” and on occasion some problems are made or exacerbated by the application of abstract legal principles. Enter Hurricane Carter stage left. Rather than serving the notion of logic, the rational attainment of facts and a corresponding connection with some form of “truth”, the law can sometimes truly be an ass. In such circumstances an unfolding injustice will not be capable of remedy by the law. For these cases there is no assurance in the existence of multiple layers of appeal courts, the confinement of problems to principles and the facilitation of argument around which the truth may be discovered. In these cases the problem will often be with the base premise upon which the house of cards is built. The base problem may be with the quality of the science involved, the lack of training given to lawyers on how to deal with facts as opposed to abstract legal principles and ultimately the theory of cases from which the edifice of legal logic relies. The system of appeal courts in a common law system is poorly equipped to deal with such foundational issues, with their ever decreasing authority to look at anything beyond narrow points of law – or facts only deemed important by a lawyer’s theory of the case. So what of those cases that establish a far greater issue of fairness and justice than is possible to deal with through the application of the latest authority from the Supreme Court or Court of Appeal? Where

to for those problems? For many, they are already inexorably caught up in the litigation trap. The ball having started rolling it quickly becomes impossible to stop the hurried shuffle necessary to stay on top. This combined with the fact that most litigators are ill equipped, in my view, to recognise the frailties of junk science or shonky evidence that can result in a case built upon a foundation of sand – while “to a hammer everything that looks like a nail” some problems are more primal than legal and require non-legal skill sets. In the context of criminal cases, I advocate for the need of a criminal cases review panel. The resolution of many cases needs more than the application of legal minds. The multi-disciplinary approach possible through the likes of a criminal cases review panel is our best bet to avoid those cases that will, in 50 years, still come to define our generation. Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.

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Courtroom Practice

Jury practice Suggestions based on experience Details of what occurs behind the closed doors of jury rooms remain largely unknown to judges and counsel, as all are disbarred from serving on juries. As a layperson having performed jury service I offer a brief summary of my experiences, together with recommendations. The subject of jury competence has received attention in recent years. Judge David Harvey (quoted in LawTalk 806, 12 October 2012), spoke on the need for “a proper educative process for jurors”. In 1997 the Law Commission and Victoria University Faculty of Law undertook a survey of 48 jury trials with the broad aim of identifying problems that juries experience. Their 2003 report Guide to Jury Trial Practice covers much ground but did not consider the following three questions, which might have revealed significant problems in jury rooms: • Did all members of the jury understand and apply the judge’s directions? • Did the jury focus on considering evidence presented in court? • Did jury members work together harmoniously? In my limited experience, the answer to all three questions was “no”. My observations are based on service in two criminal trials, both of which eventually resulted in unanimous verdicts. Both trial A and trial B involved multiple charges, each charge embodying several elements. In trial B, each juror was provided with a flowchart summarising the elements of each charge. The jury found this feature helpful, but an element summary was lacking in trial A. In both trials the jury was provided with two copies of the transcript of court proceedings. In the jury room these transcripts were referred to occasionally, but not in detail. In both trials, few jurors took notes in court. Juries A and B encountered different sets of problems. In jury A, education levels varied widely. Four members of the jury were recent immigrants, and were to some extent handicapped by unfamiliarity with English in general and

with legal language in particular. In addition, there was unfamiliarity with legal concepts. For example, two individuals struggled to grasp the concept of presumption of innocence, as in their own culture arrest is almost synonymous with guilt. Two others were inclined to make decisions based more on character than on evidence: “I think he is a bad man, so he is guilty”. The foreman dealt patiently with these misunderstandings. Late in the evening, the entire court had to be reconvened so that the judge could repeat his explanation of the law underlying one element of one charge, a key point that the majority of the jury did not correctly recall from the judge’s closing remarks. Jury B presented a fresh set of problems, even though all jurors were well educated and competent in English. Four factors contributed to dysfunction in the jury room. 1. The judge’s directions were poorly retained. In particular, little heed was paid to his clear advice that if one witness or item of evidence was perceived to be implausible, that evidence should be put aside and attention should be directed towards other witnesses and other evidence. Instead, some on the jury tended to focus on the character and credibility of two witnesses (out of a total of eight witnesses), and on societal problems generally. 2. On the second day, the jury room became dominated by personal verbal attacks between different factions of the jury, on matters barely related to the trial or to evidence. These attacks were more related to personal ideologies.

LawTalk has been provided two statements which say that this article does not conflict in any way with the convention of jury deliberation inscrutability. One is from Professor Warren Brookbanks of Auckland University and the other from Judge Stan Thorburn. Professor Brookbanks added

3. The foreman was well able to see what was going on, but lacked the experience to control conflict between aggressively opposed individuals in the room. 4. There was considerable debate but no agreement around the term “beyond reasonable doubt”. On the basis of the above experiences, a few suggestions are offered. These changes could be in addition to – not instead of – instructions provided orally by any judge during any jury trial. I suggest the following four guidelines be provided in writing, available to every juror at the commencement of trials, and that judges should direct juries to pay close attention to these guidelines. Ideally this information should be written in plain English, be standardised nationwide, and be no more than one page long. 1. Advice on selecting a foreperson, on the importance of this process and on the kind of skills needed. 2. A reminder that a jury’s central task is to evaluate evidence presented in court and that societal generalisations should play no part in the process. 3. Advice on what path a jury should take if it believes any evidence implausible or any witness unreliable. 4. The meaning of the following key terms: • presumption of innocence; • onus of proof; • quality of evidence; • balance of probability; and • beyond reasonable doubt. Printed summaries of the elements that apply to each charge would greatly assist any jury. In addition, more care could be taken to screen out jurors with inadequate English. I have been called for jury service four times, and each time have heard the court official in charge of ballots announce to the pool of prospective jurors that anyone who did not Continued on following page ...

that the article does not reveal information relevant to a particular trial or trials, but is simply commenting on aspects of process. And Judge Thorburn said that: “there is a huge need for impediments that might reign to be revealed for what they are and be outed, surely!”

LawTalk 841 · 9 May 2014 ·

Courtroom Practice

Class action litigation An important revolution in our legal culture By Liesle Theron The traditional conception of litigation is a process by which private individual rights and remedies are determined by a passive judge on a one-off basis. The lawyer in this picture is an independent professional providing dispassionate advice and advocacy as an agent for clients. Class action litigation raises some hard questions about the appropriate boundaries of civil litigation and the roles that should be played by judge, lawyer, plaintiff and defendant. Resistance to this class action litigation may be explained, at least in part, by its incompatibility with our traditional notion of these roles. New Zealand does not have the large plaintiff law firms that are such an established presence in Australia and the United States. But there is no reason to think that firms that are capable of mobilising injured individuals into classes and have the skill and capability to conduct large litigation

Jury practice: Suggestions based on experience Continued... feel confident with their level of English could come forward and be excused. These single brief announcements were indistinct and easily missed. Also, new citizens may be unwilling to publicly admit to being less than competent in English. It may be better, at the stage when jury service notices are sent out, to provide a one-page summary of juror responsibilities and legal terms – including perhaps those listed above – in order to give prospective jurors an indication of the level of English needed. In order to reduce the possibility of the trials referred to in this article being identified, the name of the author is not given. The author of this article is a science teacher and writer, with teaching experience in Britain, South Africa and New Zealand; and with several New Zealand textbooks to his name. He has travelled widely in Asia and Africa and has had a number of travel features published.

· LawTalk 841 · 9 May 2014

will not emerge. Some smaller players in this field already exist and lawyers have proved themselves as adaptable to changing trends in New Zealand as elsewhere. A conservative New Zealand legal culture may frown on “entrepreneurial” lawyers, equating them with “ambulance chasers”. The lawyer’s role in this context and the dilution of control by the immediate parties is seen as in tension with the traditional conception of a lawyer and civil litigation. The values underlying the traditional approach have to be reconciled with the values which class action litigation promotes, in particular access to justice. Class action litigation can have social utility on a scale that is absent in most other litigation. Attitudes which stand in its way merit close scrutiny.

Important mechanism for achieving public interest goals The class action procedure empowers individuals to take proceedings in circumstances where the conduct which caused them harm would otherwise be left unchecked and the harm left without redress. It makes it possible for the courts to grapple with conduct which can only properly be comprehended and responded to by examining its consequences for a group of people. It enables private enforcement of consumer protection laws and investor protections, and redress to be obtained for harm caused to large numbers of individuals by product failures and other torts. It also has the potential to achieve significant collective good by enforcing environmental laws. A number of the most significant class action cases have sought redress for human rights abuses. High profile cases include Konneh v State of New South Wales, the class action commenced in Australia in 2011 on behalf of children and young adults who had been wrongly arrested and jailed because of out of date or incorrect bail information in the New South Wales police computer system1 and Hilao v Estate of Marcos 103 F.3d 767 (9th Cir 1996) where a class of 10,000 Filipino victims who were tortured, summarily executed or “disappeared” by the Marcos regime took proceedings against Marcos (and his estate

when he died) in the United States under the Alien Tort Claims Act and the Torture Victim Prevention Act. Class action claims were filed against various Swiss banks on behalf of a class of Holocaust victims whose assets were wrongfully retained by private Swiss banks during and after World War II. They were settled for US$1.25 billion. Native Alaskans whose lives were affected by the 1989 Exxon Valdez oil spill ultimately obtained a US$507 million settlement from Exxon after filing a class action proceeding. Class action litigation is a powerful tool for achieving social change because it provides collective interests, often disadvantaged and vulnerable, with publicity and access to the power of the judiciary, which can be a catalyst for legislative reform. Class action litigation in other jurisdictions has played an important role in raising awareness about health issues, such as faulty medical devices, dangerous impacts of medication and systemic failures in health monitoring. Improved standards in public health in Australia have been attributed to class action litigation regarding increases in exposure to Legionnaire’s disease.2 Class action litigation has been an important tool in advancing tobacco control in the United States.

Should we be concerned? Its opponents insist that if it is to be permitted, various safeguards should be put in place to guard against the “excesses” of United States-style class actions. But problems observed with the US system – where all the action takes place at the certification stage and the cases that are certified are often settled – are simply never going to be a feature of the New Zealand system with its modest punitive damages awards, absence of large jury awards, limitations on contingency fees and potential for adverse costs awards. The essential concerns appear to be that class actions, especially with the involvement of a litigation funder, pressure defendants into settling meritless claims and are unduly burdensome for defendants and the Court. In general our legal system assumes that there is no requirement of symmetry or “equality of arms” between litigants. However the reality is that vast inequality of resources between parties in the adversarial context can work great injustice, and imbalances of power that are perpetuated

Courtroom Practice in the courtroom can limit access to justice. Government and corporations are systematically better represented than the individuals who take them on. Class actions represent one means by which this imbalance can be addressed. As commentators have pointed out, it is therefore ironic that the concerns expressed about asymmetry created by powerful class plaintiffs putting inappropriate pressure on defendants have gained so much traction.3 The argument that class actions are unduly burdensome is also, at a minimum, unduly simplistic. If the alternative is the filing of thousands of individual claims then the class action is an important tool to ensure the efficient and effective use of court time and to avoid overburdening the courts and defendants. Class actions offer efficiencies by enabling economies of scale to operate in litigation. In New Zealand the courts have come under pressure from the large number of claims arising from the leaky building crisis and from the Christchurch earthquakes. Grouping claims together through a class action procedure is one obvious solution, especially if the determination of a preliminary issue

will lead to the resolution of the claims.

Tools exist to address abuses It is hard to believe that there is any real prospect that New Zealand defendants will settle meritless claims for large sums. Strike out and summary judgment are the obvious tools for preventing such an outcome. They are used to good effect by New Zealand defendants and place responsibility squarely on the judges to prevent meritless claims proceeding. An aspect of the concern about the burden on defendants is the concern about plaintiffs’ ability to pay costs. However this concern is not limited to class action litigation. It can be addressed within the existing rules by an application for security for costs, which the courts are well-placed to determine by reference to established principles which directly address the values at stake. In exercising its discretion the court balances the importance of the plaintiffs’ access to justice against the need to protect the defendant from unjustified litigation. In this context the court will consider the merits of the case. It is likely that security for costs will be sought in many class actions, giving the court an early opportunity to consider

these questions. Like any litigation, and any complaints procedure, there is the potential for abuse. There are mechanisms available to the parties and the courts for ensuring that class action litigation is conducted appropriately. In applying these measures, and determining whether additional safeguards are required, it is important that the potential for abuse be addressed proportionately and with sensitivity to the deterrent effects that relatively minor limitations can have. In this context access to justice is a core value, and it is important that it not be denied to some of the most deserving plaintiffs by regulating the procedure so that it becomes too difficult to use. Liesle Theron is a barrister at Thorndon Chambers. She has a wide-ranging civil and commercial litigation practice and advises clients on all aspects of commercial and public law. 1. For most recent developments, see Konneh v State of New South Wales (No 3) [2013] NSWSC 1424. 2. Australian Lawyers Alliance Submission to Australian productivity commission Inquiry into Access to Justice 8 November 2013. 3. AD Lahav Symmetry and Class Action Litigation 60 UCLA L. Rev. 1494 (2013).

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LawTalk 841 · 9 May 2014 ·

Inspectors’ Briefcase

Reconciliations and certification By Jeremy F Kennerley, Financial Assurance Manager This article covers several issues that have been the source of recent inquiries.

Monthly reconciliation documents As discussed in LawTalk 839 page 24, a law firm operating a trust account must ensure that all trust accounts, or their equivalents, are reconciled at least monthly. Some trust account reconciliations can be difficult for an inexperienced or unfamiliar reader to understand, let alone base any necessary corrective action thereon. This can often be the case when a lawyer’s attorney has to manage a practice under unusual circumstances. Even for more experienced users and current Trust Account Supervisors (TAS) the effectiveness and quality of the reconciliations they are using can vary. This problem can be further compounded when less common or older trust account software is being used. All of these factors can lead to situations where even though the account appears to be reconciling, all is not strictly accurate. Also it seems a number of law firms may not be following 7.3 of the Trust Account Guidelines, which can reduce the effectiveness of their month end reconciliation work and can mean that Law Society reviews take longer than should normally be the case. To mitigate this risk and to ensure that the effectiveness of all reconciliation work is retained, it is suggested that the following monthly work papers are prepared and collated for each trust account or equivalent: • the reconciliation itself; • the supporting cashbook/control account summary for the target month; • the end-of-month bank statement; • an unpresented cheques listing with numbers, dates and payees; • all adjustments for receipts not credited or lodgements in transit; • any other adjustments for errors, either in the control account or made by the bank; • a complete list of client balances, the net total of which should equate to the

· LawTalk 841 · 9 May 2014

control account; a printout of the journal transactions for the target month; • the target month’s transaction ledger for the firm’s float account/firm’s interest in trust/firm’s account; and • any printouts of relevant exception reports which could include debit balances, large balances, residual and dormant balances. Reconciliation papers for each interestbearing deposit (IBD) or term deposit facility would include the: • firm’s listing of all deposits by client; • end-of-month bank statement detailing each individual balance held; and • evidence of any total bank interest credited quarterly. A client-by-client allocation may be requested by an Inspector to ensure correct allocations are being made. If a firm carries out lending, then together with the above information, the following listings are also required: • all contributors or lenders; • all borrowers; and • any amounts of interest or principal in default. Firms are encouraged to retain their end-ofmonth collated documents in a folder with monthly indices separating the reconciliations to prevent loss or misplacement and to facilitate easy reference. A summary checklist or coversheet would further assist to act as a reminder for what documents need to be prepared and reviewed each month. This would also allow for the TAS to be advised of the reason for any missing information. One clear purpose of completing such a collation to a high degree of detail and precision for a sole practitioner is that, should anything happen to the lawyer, any attorney operating the practice would have a definitive starting position for the trust account operation, based on the last month end. It remains the Inspectorate’s experience that while many sole practitioners’ procedures are familiar to themselves, they are often confusing to locums or attorneys.

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Any lawyer reading this who is an attorney for another practitioner is advised to check that the practitioner’s trust account reconciliations and month end procedures are well presented. This might also provide the opportunity for the attorney to ask the practitioner to provide access to the latest review of the trust account by the Inspectorate to ensure all is in order.

Late Certification Under Regulation 17of the Lawyers and Conveyancers Act (Trust Account) Regulations 2008, every Trust Account Supervisor must certify to the NZLS by the tenth working day of each month (or in January the 15th working day) specific monthly information concerning the firm’s trust account operations. Since February 2013 this certification has been required to be made online. From time to time situations arise for practitioners that prevent them from being able to submit their certification on time. In all such circumstances, whether known in advance or arising at the time of filing, it is imperative that the first course of action is to contact the NZLS advising of that fact. Contact is best made through Lucy Wesley at trustaccountcertificates@lawsociety.org.nz, phone (04) 463 2974. Once contact has been made and the problem discussed then a course of action can be determined. Please do not ignore advising the Society. It is not permitted to allow another staff member to use the Trust Account Supervisor’s personal lawyer ID and password. Where a pattern of late filing arises with no communication or insufficient explanation, and/or knowingly false declarations made, then the matter will be referred to a lawyers standards committee for inquiry. If anyone has further questions or requires any assistance please contact the Law Society’s Inspectorate through the Financial Assurance Manager Jeremy.kennerley@ lawsociety.org.nz, phone (04) 463 2936.

Financial Markets Law

Raising equity funds under the new liberalised IPO By Miles Hayward-Ryan If a client company asks how to raise funds where debt is not suitable, there is a new answer to add to the mix available since 1 April. Perhaps an entrepreneurial company has an innovative product which still needs some development and the potential market looks attractive. Perhaps the company is relatively mature and very profitable and the owner wishes to sell some shares to realise the asset for personal purposes. Do the provisions of the Financial Markets Conduct Act 2013 [FMCA] provide any new avenue for raising funds? For the entrepreneur, for many years, the angel investment process has become well developed to provide funding for innovations. The angel process was necessary because the Securities Act 1978 prohibits public offers unless accompanied by a Prospectus and Investment Statement [P&IS] Disclosure. Costs made this route prohibitive for smaller amounts. The unintended effect was that entrepreneurial activity, wealth creation, job creation, and economic development were all hindered to a large degree for 35 years while the Securities Act has been in force. The FMCA has provided a faster and more convenient one-step process which is likely to compete strongly with the angel process if not replace it completely. The new process is actually an old process. It is an Initial Public Offer. These new IPOs are authorised under FMCA Schedule 1 Clause 6 which succinctly excludes offers to the public from P&IS Disclosure requirements but only if the offer is through the licenced intermediary. The licencee acts as a guardian gateway to prevent irresponsible promoters presenting

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inappropriate offers to the public. This device has to be praised as an excellent development allowing public fund-raising up to $2 million in any 12 months which should satisfy most SME and entrepreneurial companies [FMC Phase 1 Regs 2014 Schedule 1 Clause 4]. A rigorous FMA licensing process ensures the licencees are up to the task. Entrepreneural companies can now approach an intended licencee such as IceHouse associate company The Snowball Effect Ltd. The only requirement for the fund-raising company is completion of a public offer document. A template guide is provided for what investors typically want to know. The flexibility is important for start-up entrepreneurial companies which may need to emphasise different strengths in different areas. Anything which sells and everything that discloses should be included succinctly and accurately. [See FMCA Part 2 ss 19 to 23.] There are new protections for investors. One significant element about the crowd funding process is that investors are able to pose questions to companies. That will operate rather like buyers’ questions on the Trade Me auction site. The company IPO statement is therefore open to public scrutiny.

That could well prove a demanding process. Under clause 27 of the FMCA Phase 1 Regs 2014 Schedule 1, a condition for the crowd funding licence is to make a warning statement available so investors must read it. The warning statement includes: • Equity crowd funding is risky. You may lose your entire investment, and must be in a position to bear this risk without undue hardship. • Issuers using this facility include new or rapidly growing ventures. Investment in these types of businesses is very speculative and carries high risks. Omit these two sentences if the facility is confined to issuers for whom the sentences would be inapplicable (like a mature profitable SMEs). The older shorter version was “caveat emptor”. This warning must be seen in the light of the amount which an investor can invest. Consideration was given to limiting investors to, for example, $25,000 but picking any figure created demarcation problems. So no limit is given other than the $2 million which the company can raise. Continued on following page ... LawTalk 841 · 9 May 2014 ·

Financial Markets Law Financial literacy demands that education be the method for New Zealanders to grow wealth rather than the “prohibition” demand that people be protected from themselves. Licencees are free to add a warning that investors should limit investment to no more than 5% of their net worth. Such a warning would help protect licencees and applicant companies. The licencee will be wanting to ensure that only projects which have a significant chance of being funded are presented to the public. During this early stage of crowd funded IPOs, it is relevant that there is 35 years of pent-up public frustration at being denied access to such ventures. Public interest may be high. The new equity crowd funding system provides much more succinct disclosure and is much more transparent and accountable. It is culture changing legislation. A rare example of one prospect for crowd funding in the financial services sector is a system for comparing the performance of investment advisers. For 80 years in the United States and 30 years in New Zealand, consumer investors have asked how they can compare investment advisers. The industry has never had an incentive to supply an answer. A proposal by Investment Advisers Performance Measures [IAPM] is before licencee Snowball Effect to raise funds to provide just such a service. Lawyers and chartered accountants may be interested to find out just how that new service can help their referral process and risk management especially if also a trustee. It should firstly be noted that the previous prohibitions about secondary market selling, typically undertaken by owners, has been substantially tightened. Owners who are “controllers” may not sell their shares without full P&IS disclosure. This is seemingly in contradiction to the liberalisation contained in the FMCA to encourage business. However the owner no longer needs to attempt to sell shares though back street methods.

· LawTalk 841 · 9 May 2014

Owner “controllers” are now controlled by a new provision in FMCA Sch 1 Clause 33 which regulates sales made by controllers of the company which are not quoted / listed. Full P&IS disclosure is required. Clause 34 now regulates the work-around where a sale by a controller is made to an exempt co-conspirator party who then onsells. If the second sale is within 12 months and if that second sale was the intent, full P&IS disclosure is required. There is now very little point in looking for a work around. It is simpler and easier to get IPO funding. FMCA Phase 1 Regs 2014 Regulation 16 [1] defines the crowd funding service as having a “principal” purpose of matching companies raising funds with investors seeking to invest relatively small amounts. Reg. 16[2] goes on to specify that the service also includes any “broking service” and operating a “trading facility” for companies that have raised funds on that platform. This is a secondary market trading platform. It is a major advance for business everywhere in New Zealand which should be considered in advice to client companies. This is an SME / start-up stock exchange. This most important addition to the IPO process means that such companies have an immediate liquidity for all shareholders. It is possible that many SME companies could seek to obtain that liquidity advantage. It will be interesting to see how this new market develops and how it leads to more SMEs going on to the NZAX or NZX. For example, at this stage, the intent of the applicant start up IAPM is to move to a full listing. It should also be noted that NZX has announced that is it is developing a new growth exchange operating in the greater than $10 million market capitalisation replacing NZAX. After five years, start-ups should have achieved that level. It seems that there will shortly be a full stock exchange continuum from start-up to genesis. All investors who enjoy stock markets should be highly supportive of this development.

Commercial lawyers and chartered accountants should acquaint themselves with the new rules in order to help clients participate in the new evolution of growth capital markets. The first tranche of IPOs is expected to start this month when FMA will have completed the first licencing processes. Registering for updates is easy and available now at www.snowballeffect.co.nz. For the FMA and industry educators, the IPO investor warning includes the statement to “seek independent financial advice”. The problem is that no one is authorised in New Zealand to provide financial advice on start-up ventures. AFAs must pass exams or provide proof of experience. Those exams do not include start-up venture assessment. [Standard Set D Course 25648 Element 5]. Some unknown AFAs may claim their experience is enough but no such claim has been found. This topic requires further exploration by parties interested in the investment adviser industry and growth companies versus managed funds. A solution is needed for those angel investors who may be feeling the cold winds of change. Perhaps they could approach the powerfully developing licencees with the idea that the angels become mentors for the applicant companies. An agreement would be needed to protect applicants and the licencee. Angel availability and potential investment participation at the front end on day one or as underwriting of the IPO in the event of a shortfall or both and announced before the public round could greatly enhance the prospects for all. Co-operation is better than competition in many circumstances, especially when the law has gone against you. Angels will need to adapt. Miles Hayward-Ryan is an in-house corporate lawyer and founder director of IAPM which is applying for IPO funding. Any lawyer interested in further material about the issues raised in this article may contact Miles at (09) 413 5355, email miles@iapm.co.nz or see www.iapm.co.nz.

Financial Markets Law

FMC Act liability regime By Belinda Moffat 2014 marks the start of a new era for New Zealand’s financial markets – an ambitious and exciting period of change for market participants and investors. This is the seventh, and final, article in a series by the Financial Markets Authority (FMA) outlining the key changes, the impact they will have on the future of our financial markets and the role lawyers can play in helping achieve that change. In this article we discuss the changes to the liability regime and highlight some of the new regulatory tools available to FMA under the Financial Markets Conduct Act 2013 (FMCA).

Changing liability landscape The FMCA simplifies what has been a complex liability regime in New Zealand’s financial markets. It adopts a system of escalating levels of liability introducing a new set of regulatory powers and infringement offences, and increases the emphasis on civil liability for contraventions. Serious criminal offences, which may result in imprisonment, are reserved for the most serious violations of the law. A key focus of the regime, with the expanded regulatory toolbox, is to ensure that the regulatory response to actual or potential misconduct is proportionate to the contravention.

Part 8 While FMA’s powers and the offence provisions are present throughout the FMC Act, Part 8 specifically deals with FMA’s enforcement powers, the High Court’s enforcement powers, civil liability including civil remedies and defences, banning orders, infringement offences, asset preservation orders and appeals.

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Part 8 confers on FMA the power to make a range of orders including Direction Orders which may direct compliance with the Act and stipulate steps that must be taken to comply and Stop Orders which prohibits certain action. These orders are designed to enable FMA to proactively and swiftly respond to threats of harm to the market across a wide range of regulated activities.

Infringement notices The FMCA introduces the infringement notice regime which provides an effective regulatory response for minor compliance contraventions.

Civil liability regime While shifting away from an emphasis on criminal liability, the FMCA provides a broader range of civil penalties and remedy provisions where issuers contravene the law, and where directors and others are involved in these contraventions. In pursuing a civil claim, FMA may apply to the High Court for orders including declarations of contravention, civil pecuniary penalties, and compensation orders. These civil liability provisions are strict liability. A person who contravenes a civil liability provision is liable unless they make out a defence. People involved in a contravention may be liable if they were an intentional participant in the primary contravention and had knowledge of all essential facts. The FMCA provides robust defences for those who have good corporate governance structures and due diligence processes and procedures in place.

Criminal liability Criminal liability is now reserved for misconduct involving knowledge or recklessness. For example, offerors of products will be

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criminally liable for knowingly or recklessly making an offer where there is defective disclosure. Directors will only be criminally liable if the offer document was issued with their authority, permission or consent and they knew or were reckless about whether there was a defect.

What to expect FMA’s primary focus is to help market participants understand their obligations and to support honest and reasonable efforts to comply. The FMCA equips FMA with a wide range of powers enabling FMA to act swiftly to minimise harms to the market and to protect investors. Raising investor confidence and promoting the integrity of the market is at the core of the new regime and will guide FMA’s use of these powers. FMA encourages legal advisers to work with their clients to focus on high standards of corporate governance where the interests of investors are promoted and protected in the course of the financial services and products that are offered. Those financial markets participants, who have high standards of conduct, ethics and integrity at the core of their business activities, will be well placed to adapt to the requirements of the FMCA. Keep an eye on the FMA website www. fma.govt.nz for more details or sign up to the FMA’s engagement site www.talktous.fma. govt.nz to receive regular updates. Belinda Moffat is Head of Enforcement at the Financial Markets Authority.

Key dates 1 April 2014 – Part 8, Enforcement, Liability and Appeals came into force (excluding ss 470 to 473 which relate to certain FMA orders and ss 510 and 511 which relate to offences for defective disclosure). 1 December 2014 – The remainder of Part 8 comes into force (ss 470 to 473, 510 and 511). For more details about the timeline for change go to www.fma.govt.nz/keepupdated/the-future-of-financial-markets/ timeline-for-change/.

LawTalk 841 · 9 May 2014 ·

Law Reform

A summary of the new workplace safety regime By Philip McCarthy The much awaited Health and Safety Reform Bill has now been introduced into Parliament. The Bill is part of the package of changes that have been introduced following the Pike River Coal Mine Tragedy and various subsequent reviews which have observed a poor health and safety record in New Zealand. The Bill is before the Transport and Industrial Relations Select Committee and submissions close today, 9 May. The Bill is based on the Australian Model Work Health and Safety Act 2011 with some modifications for the New Zealand context. So what are the key changes proposed by the Bill, and what will be the likely impact of those changes in practice?

New defined terms Person Conducting a Business or Undertaking A key aspect of the Bill is the creation of a new duty holder, known as a Person Conducting a Business or Undertaking (PCBU). A PCBU means a person conducting a business or undertaking: • whether the person conducts a business or undertaking alone or with others; and • whether or not the business or undertaking is conducted for profit or gain. The PCBU is a broad concept, which will encompass the existing duty holder categories (such as employers, principals, and persons in control of a place of work) under the Health and Safety in Employment Act 1992 (HSE Act). A PCBU does not include employees or directors of PCBUs (directors are covered as officers – see below), volunteer associations, and occupiers of a home who employ or engage another person solely to do residential work. Worker A “worker” is defined as a person who carries out work in any capacity for a PCBU, including work as an employee, a contractor or subcontractor, an employee of a contractor

· LawTalk 841 · 9 May 2014

or subcontractor or an employee of a labour hire company who has been assigned to work for the PCBU, an outworker, an apprentice or trainee, a person gaining work experience or undertaking a work trial, a volunteer or a person of a prescribed class. The Bill’s definition is broad, and like the PCBU definition is designed to encompass a number of relationships that are typical in a work environment (such as employees, contractors, subcontractors, employees of contractors or subcontractors, volunteers and trainees).

A person conducting a business or undertaking must ensure, so far as reasonably practicable, that the health and safety of other people is not put at risk Reasonably Practicable The Bill will replace the current standard under the HSE Act (“All Practicable Steps”) with a new “reasonably practicable” standard. “Reasonably practicable” is defined as: “…that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including: • the likelihood of the hazard or the risk concerned occurring; • the degree of harm that might result from the hazard or risk; • what the person concerned knows, or ought reasonably to know, about • the hazard or risk; and

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ways of eliminating or minimising the risk; • the availability and suitability of ways to eliminate or minimise the risk; and • after assessing the extent of the risk and available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.” The new standard is broadly similar to the existing concept of “All Practicable Steps”, except that the assessment of costs must only be taken after the assessment of the risk and the ways to eliminate that risk. This means that costs will only take precedence over safety when the cost of taking a step is “grossly disproportionate” to the risk.

New duties Primary Duty to Ensure Safety The Bill introduces a new general duty on all PCBUs to ensure, so far as reasonably practicable, the health and safety of: • workers employed or engaged, or caused to be employed or engaged, by the PCBU while the workers are at work in the business or undertaking; and • workers whose activities in carrying out work are influenced or directed by the PCBU while the workers are carrying out the work. PCBUs must also ensure, so far as reasonably practicable, that the health and safety of other people is not put at risk from work carried out by the PCBU. There are also specific duties imposed on PCBUs in respect of: • the management and control of fixtures, fittings, and plant in the workplace; • the design and manufacture of plant to be used in a workplace; and • the supply, importation and installation of plant to be used in a workplace. Officers The Bill introduces a positive duty on officers to exercise due diligence to ensure that the PCBU complies with that duty or obligation. This is a key change from the HSE Act, where directors of a company can only be held liable where they have directly participated in, contributed to, or acquiesced in their company’s failure. Under the Bill, officers may be convicted for a breach of due diligence regardless of whether the PCBU has been

convicted of an offence. Due diligence includes taking reasonable steps to: • acquire, and keep up-to-date, knowledge of work health and safety matters; • gain an understanding of the nature of the operations of the business or undertaking of the PCBU and generally of the hazards and risks associated with those operations; • ensure that the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety; • ensure that the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards, and risks and for responding in a timely way to that information; • ensure that the PCBU has, and implements, a process for complying with any duty or obligation of the PCBU under the Act; and • verify the provision and use of resources and processes.

Offences The Bill creates three offence tiers relating to breaches of the health and safety duties. The offences and the respective maximum penalties can be summarised as follows: • Reckless Conduct (has a duty and exposes any person to whom the duty is owed to risk of death or serious injury/ illness and is reckless as to that risk) – fines up to $3 million (or $600,000 and/or up to five years’ imprisonment for individuals). • Failure to comply with a Duty (with exposure to risk of death or serious injury/illness) – fines up to $1.5 million (or $300,000 for individuals). • Failure to comply with a Duty (no exposure to death or serious injury/illness) – fines up to $500,000 (or $100,000 for individuals). In addition to the fines and imprisonment that may be imposed, the Bill provides for new orders which the court may impose at sentencing: • Adverse publicity orders – requiring the offender to publicise in a particular manner the offence, its consequences, and the penalty imposed. • Restoration orders – requiring an offender to take specified steps to remedy any matter caused by the offence. • H&S project orders – requiring an offender to undertake a specific project for the general improvement of work health and safety. • Court-ordered enforceable undertakings – adjourning the proceeding for up to

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two years, during which the offender undertakes to comply with certain conditions.

Where to next? Progress of the Bill through to legislation is already well under way. The Government has indicated that the Bill will be passed into law by the end of 2014, with an expected start date of 1 April 2015. Regulations necessary to support the new legislation will also be released for consultation this year. The implementation of the new regime will see more onus placed on managers and

company directors to proactively manage workplace health and safety. Together with stronger penalties, and wider enforcement tools for non compliance, it is hoped that this regime will see improvement to New Zealand’s poor health and safety record. Philip McCarthy is a solicitor with Auld Brewer Mazengarb & McEwen. Philip specialises in commercial litigation, employment law, and health and safety. Philip regularly advises clients in relation to investigations and enforcement action taken by WorkSafe New Zealand. LawTalk 841 · 9 May 2014 ·

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Presenters

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

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Auckland 1 Wellington Auckland 2 Christchurch

26 - 27 May 20 - 21 Oct 10 - 11 Nov 24 - 25 Nov

Dr Kathleen Callaghan The new Health & Safety Reform Bill will replace the current Act, bringing in the Simon Mitchell most significant reforms in 20 years and, with WorkSafe, there is now a new and Penny Swarbrick very different agency practitioners will need to understand and work with. This seminar will aim to provide a heightened awareness of the new Act, its wide ranging implications and its significantly increased penalty regime.

Dunedin Christchurch Wellington Hamilton Auckland

CIVIL LItIgatIon & EmPLoymEnt

Health and Safety Reforms

CPD HRS

Webinar

Using Human Rights Law in Litigation Expert Witness

Chair: Prof Paul Rishworth

Susan Hughes QC

Issues in Unjust Chair: Enrichment Prof Peter Watts QC

Litigation Skills Director: Programme David Clark

3 Jun 4 Jun 10 Jun 11 Jun 12 Jun 10 Jun

3.5*

CPD HRS

It is becoming increasingly important to know how Human Rights can properly Wellington be used to influence the outcome of a case. This intensive will provide practical advice and guidance that will help the litigator to know when to play the Human Rights card and how to do so to best effect.

25 Jun

This two-day day programme follows the same learning-by-doing methods that Wellington have proved so successful in both the annual basic level NZLS CLE Litigation Skills Programme and the advanced course. It is entirely focussed on working with expert witnesses and you will also receive mentoring from experienced faculty members. The course is designed for all litigators from civil, criminal, family and other specialist jurisdictions with at least five years’ experience.

26 - 27 Jun

Bringing you up to date with developments both here and abroad, this intensive Wellington takes stock of the law of restitution in New Zealand. Presenters will discuss key Auckland issues in unjust enrichment, how it affects obligations in contractual arrangements, including mistaken transfer, defences and restitution for wrongs.

23 Jul 24 Jul

This highly regarded residential week-long advocacy training course is open to Christchurch applicants with at least two years’ litigation experience. Selected applicants will perform exercises and be critiqued, observe themselves through video review and observe faculty demonstrations. It’s hard work, great fun and most participants say it’s the most effective value-for-money course they’ve ever attended! applications close Friday 6 June 2014

24 - 30 Aug

CPD HRS

13.5

CPD HRS

5.5

CPD HRS

ComPany, CommERCIaL & tax Introduction to Company Law

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

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

12 - 13 May 19 - 20 May 26 - 27 May 13

CPD HRS

CRImInaL Duty Lawyer training Programme

Local Presenters

Duty lawyers are critical to the smooth running of a District Court list. Here is a way Visiting to gain more of the knowledge and skills you need to join this important group. This centres workshop is made up of several parts. Visit www.lawyerseducation.co.nz for full around NZ course description, dates and locations.

Feb - Nov 11*

CPD HRS

EnVIRonmEntaL LaW Update on Environmental Case Law

Vernon Rive

This webinar will examine a number of recent, significant cases in the environmental field. It will also consider the key themes that are emerging from the case law in this area and reflect on what this means for practitioners on a practical basis.

Webinar

23 May 1

CPD HRS

FamILy mediation for Virginia Goldblatt Lawyers: Part B Denise Evans – Family Law

For those with recent approved prior mediation training, including our Part A Auckland 1 course. This programme will be an opportunity to practise mediation skills in the Wellington 2 family law area and then to be assessed on them. Strictly limited numbers with Auckland 2 pre-course work required.

2 - 4 May 22 - 24 Aug 10 - 12 Oct 15

CPD HRS

*CPD HRS may vary – please see brochure on website Online registration and booklet purchases (with cheque, direct credit and credit card payment options) available at www.lawyerseducation.co.nz

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

Programme

Presenters

Content

Where

Understanding mediation – mediation for lawyers Part a

Virginia Goldblatt Geoff Sharp

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

When

FamILy 25 - 27 Jul 31 Oct - 2 Nov

14.5

CPD HRS

PRoPERty & tRUStS Property Law Conference

Chair: John Greenwood

The ever-changing pace of property law places new demands on practioners. Wellington We recommend you attend this year’s conference and take the opportunity to indulge yourself by up-skilling your knowledge. The programme will provide you with two days of stimulating engagement on topics of importance and interest concerning property law. Areas for discussion include: leases, ethics, developer’s expectations, property relationship agreements, health and safety reforms, unit titles, insurance, dispute resolution and much more.

23 - 24 Jun

12.5

CPD HRS

Residential Property transactions

Debra Dorrington Simon Ellis Lauchie Griffin Nick Kerney Duncan Terris

This very popular two-day, limited-number workshop, for solicitors at the start Christchurch 30 Jun - 1 Jul 28 - 29 Jul of their property law career and legal executives with some experience, follows Wellington 28 - 29 Jul 13 three files, from client instructions to settlement and beyond. Hamilton 11 - 12 Aug CPD HRS Auckland

Elder Law Intensive

Chair: Catherine Atchison

Attend this intensive to be updated on the constantly evolving issues in elder Wellington law. The presenters will discuss: capacity; enduring powers of attorney; elder Auckland abuse; privacy; trusts; new relationships; and they will look at future housing options for an ever-increasing and diverse elderly population.

14 May 21 May

CPD HRS

PRaCtICE & PRoFESSIonaL SkILLS Stepping Up – foundation for practising on own account

Director: John Mackintosh

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

Christchurch Auckland 2 Wellington Auckland 3

15 - 17 May 3 - 5 Jul 4 - 6 Sep 6 - 8 Nov

18.5

CPD HRS

Lawyer as negotiator

Jane Chart

Building on your own experience, this one-and-a-half day workshop provides Wellington 1 20 - 21 May hands-on practice and feedback, as well as a conceptual framework for preparing Wellington 2 11 - 12 Nov for and undertaking negotiations. It examines different strategies and tactics, Auckland 2 18 - 19 Nov 11.5 CPD HRS and offers tools for dealing with difficult negotiators, breaking impasses, and for addressing specific issues which you might wish to raise.

trust account Supervisor training Programme

Jeremy Kennerley David Littlefair David Chapman Bob Eades Lindsay Lloyd

To qualify as a trust account supervisor, you must complete 40-55 hours’ Hamilton preparation, attend the assessment day and pass all assessments. Wellington Auckland 2 Christchurch

Irene Joyce

Understand the factors which make small to medium size firms successful, Dunedin analyse how well your firm measures up and how to start implementing changes Christchurch to improve your firm’s success. Wellington Hamilton Auckland

30 Apr 1 May 14 May 29 May 5 Jun

Dunedin Christchurch Wellington Auckland

9 Jun 10 Jun 17 Jun 18 Jun

Webinar

17 Jun

Since the Lawyers and Conveyancers Act 2006 came into force, lawyers have Auckland been able to incorporate their practices, rather than being obliged to practice as partnerships. There are significant advantages in doing so. This seminar will assist lawyers considering the benefits and limitations of various practice models; how best to structure an incorporated firm and the valuation and shareholding implications.

20 May

Secrets of Success

Financial markets Conduct act – an introduction

Liam Mason Jeremy Muir Mark Stuart

16 Jul 18 Sep 19 Nov 26 Nov

10*

CPD HRS

Join this practical and interactive seminar designed to provide a conversion course from the old Securities Act (and related legislation) to the new, radically different and all-encompassing Act. You will learn the concepts behind the new Act, understand the timetable for implementation, and recognise when the Act applies. For all general practitioners.

3.5*

CPD HRS

3.5*

CPD HRS

In SHoRt SEmInaR SERIES – aUCkLanD Incorporating your law firm? How to capture, transfer and retain value

Phil Creagh Jai Basrur

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.

CPD HRS

Law Foundation

Continuing the constitutional conversation By Lynda Hagen Overseas experts will take part in a Law Foundation-supported forum next month that aims to continue the national debate on our constitutional arrangements. The New Zealand Bill of Rights Act: Continuing the Conversation will take place on 3 June at the Legislative Council Chamber in Parliament, hosted by the AttorneyGeneral, Chris Finlayson. The forum follows last year’s thorough consultation process by the Constitutional Advisory Panel, involving 100 meetings and more than 5,000 written submissions. A continued constitutional conversation was among the key recommendations of its report in November. One of the forum organisers, Professor Andrew Geddis of Otago University, says that re-examination of the New Zealand Bill of Rights Act 1990 was another of the panel’s recommendations. “Those of us with an academic interest in the Bill of Rights thought it would be useful to pick up where the panel left off and engage those who think about these issues, including getting views from experienced overseas people from countries with bills of rights like ours, but with additional features,” he says. Back in 1990 the Government decided that New Zealand’s Act should have only limited rights, which possibly are not comprehensive

enough now. “For example, privacy is now a much more thought-about concept than it was back then. “It’s not clear the Bill of Rights is working properly in terms of legislation being passed. A lot of the time, Parliament doesn’t pay any attention to it. “There’s the question of whether the courts should have greater powers to use the Bill of Rights Act through, for example, a formal finding to Parliament that there are problems with a piece of legislation. “At the moment, the Bill of Rights Act can be changed by a simple majority. Should it be amended so that a super-majority is required for change? “The Constitutional Advisory Panel didn’t have a view on these things. It just said that they should be considered,” Professor Geddis says. Features such as privacy rights are included in bills of rights laws in Australia and the United Kingdom, as are parliamentary committees charged with examining the compatibility of legislation with their bills of rights. “This is a forum that enables professionals to agree on some things, if there is consensus to be found. If there isn’t consensus, that also tells us something. But you have to have the conversation,” he says. The other organisers of the forum are Professor Claudia Geiringer of Victoria

There’s the question of whether the courts should have greater powers to use the Bill of Rights Act

· LawTalk 841 · 9 May 2014

University and Professor Paul Rishworth of Auckland University. Last year the Law Foundation supported two events that helped promote debate around the Government’s constitutional review. These were a five-part debate series on National Radio in April and May, and a Victoria University Conference in August, Unearthing New Zealand’s Constitutional Traditions. Both were organised by the New Zealand Centre for Public Law. Lynda Hagen is the Executive Director of the New Zealand Law Foundation.

Event details 3 June, Legislative Council Chamber, Parliament. Morning session open to the public – three visiting experts will present papers: • Professor Stephen Gardbaum, McArthur Foundation Professor of International Justice and Human Rights, UCLA Law School; • Tom Hickman, Reader in Public Law, University College, London (note: Dr Hickman will also speak at Otago and Auckland law schools following this event); and • Joanna Davidson, barrister and former Victoria Government Special Counsel for Human Rights, Melbourne. To register, please visit: http://tinyurl. com/nzbora-conversation.

Letters to the Editor Law Society advice on operating trust accounts I am concerned that the Law Society’s message concerning lawyers handling large quantities of cash may have been over-simplified (Operating Trust Accounts, LawTalk 839, p24). The core message appears to be that when a client wishes to deposit cash “of a large or frequent nature” into a lawyer’s trust account, the lawyer should “place the onus on the payer to bank the money”, after which the lawyer will issue a receipt. The advice then mentions legislative obligations to report “suspicious transactions” under Financial Transactions Reporting Act 1996. However, asking the client to deposit monies directly does not necessarily remove a law firm from any obligation to report

suspicious transactions, nor potentially from the risk of facilitating money laundering. The increasing legislative restrictions on money laundering have made it much harder to conceal the origins of at least $1.5 billion laundered in New Zealand each year, making lawyers’ trust accounts (temporarily exempt from the stricter Anti-Money Laundering and Countering Financing of Terrorism Act 2009) a preferred conduit for “cleaning” dirty money. The message should be that all unusual financial activities (whether or not cash) should invite further enquiry by the lawyer involved; lest lawyers inadvertently get the impression they might receive a “get out of jail free” card by asking clients to bank their own cash about which lawyers harbour suspicions. Ashley Balls Legal Best Practice

Response by the Editor of LawTalk, Frank Neill The New Zealand Law Society would not at any time suggest that lawyers attempt

Coming Up... Sports law symposium

Litigation forum

The Australia and New Zealand Sports Law Association (ANZSLA) will hold a one-day New Zealand Sports Law Symposium in Auckland on 16 May. The symposium will take place at Minter Ellison, 88 Shortland St. ANZSLA’s inaugural New Zealand symposium, the theme is Key Legal Challenges for New Zealand Sport. See http://anzsla.com/ content/new-zealand-sports-law-symposium.

The IBA Annual Litigation Forum will be held in Montreal from 14 to 16 May. The conference theme is International Litigation: Crossing the Great Divide. See www.ibanet.org/Conferences/ conferences_home.aspx.

Sports law writing award Entries are open for the Paul Trisley Award, which will be presented at the 2014 Australian and New Zealand Sports Law Association’s conference dinner in Adelaide on 23 October. Paul Trisley was a highly regarded sports lawyer and one of ANZSLA’s most dedicated members for many years. Paul died in 2001 and this award acknowledges his tremendous contribution to ANZSLA and the area of sports law generally. Entrants must email their paper in MS Word format to ANZSLA’s Executive Manager, anzsla@anzsla.com by 5 September. See www.anzsla.com.

Criminology congress The 17th World Congress of Criminology will be held in Monterrey, Mexico, from 10 to 13 August. Organised by the International Society for Criminology, the congress has the theme Gangs, Trafficking and Insecurity: Empowering the Community. See http:// criminology2014.com.

ABA seasonal meeting The American Bar Association (ABA) 2014 Fall Meeting will be held in Buenos Aires from 21 to 25 October. This will be the first ABA seasonal meeting in the southern hemisphere and it is shaping up to be one of the best. See www. americanbar.org/groups/international_law.html.

to circumvent the provisions of any New Zealand legislation. The Law Society, in fact, supports the legislative obligation to report “suspicious transactions” under the Financial Transactions Reporting Act 1996 (FTRA). In the article, lawyers were advised that where there is “some suspicion” about the transaction, then a suspicious transaction report should be made to the Police Financial Intelligence Unit. The article said that where cash deposits were either large or of a frequent nature, it was “reasonable” for lawyers to put the onus back on the payer to bank the money. This suggestion was made in the context of advice on accurately recording the amount to be banked and that it also removes any potential risk to the firm and its staff in physically taking the money to the bank to be deposited. There was, and continues to be, no suggestion that lawyers could avoid any FTRA responsibilities by asking clients to bank cash themselves.

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

LawTalk 841 · 9 May 2014 ·

Lawyers Complaints Service

Conflict of interest was a breach of the Rules A lawyer, D, has been censured and fined for acting for a client, A, in respect of allegations made by A’s daughter at the same time as D was also acting for another client, B, who was alleged to have committed sexual offences against the daughter. A complained, and a lawyers standards committee has determined that there was a clear conflict of interest which D should have been careful to avoid. When A’s daughter alleged that A had assaulted her, he instructed D to act for him in relation to the resulting care and protection proceedings. At about the same time D had received legally aided instructions to act for B, who was charged with sexual offences against A’s daughter. A discovered that D was acting for B when he saw her at B’s sentencing hearing. He complained to the Law Society about the conflict of interest, and also that D had overcharged him and had not acted in a timely or effective manner while acting for him. The standards committee said its primary concern was in relation to the allegations about conflict of interest. D canvassed this issue only briefly in her response to the committee, but she did say that she believed A had known about her

instructions. A claimed, however, that he had known nothing about D acting for B until he saw her in court at the sentencing. The standards committee said there was a clear conflict of interest. It was reasonable to assume, the committee said, that there was a “real possibility” D could have held information in respect of one client which might be of significant interest to the other. This was, the committee said, a “clear breach” of Rules 6 and 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. Rule 6 requires a lawyer to protect and promote the interests of the client, within the rules and the law, to the exclusion of the interests of third parties. Rule 6.1 provides that a lawyer must not act for more than one client on a matter in any circumstances “where there is more than a negligible risk” that the lawyer may be unable to discharge the obligations owed to one or more of the clients. The standards committee noted that the appearance of independence was also important. The committee said A was justified in his concerns about D properly representing his interests when she was also acting for a person who had committed offences against his daughter. D was unable to produce a file note showing

she had advised A that she was also acting for B. The standards committee said that in any conflict of interest situation, a prudent lawyer would make a file note or record the issue in correspondence, with both clients. B had not complained, but the standards committee said it was as concerned about the independence of the advice B had received as it was about the advice to A. D said that B had pleaded guilty to the charges early on, and thus D’s primary role was concerned with B’s sentencing for the charges against A’s daughter. The standards committee’s investigation revealed, however, that D had been instructed to act for B before his plea, and that there had been some preliminary matters which had had to be dealt with before he pleaded guilty. Given the clear conflict of interest and established breach of the rules, the standards committee did not consider it was necessary to consider the other grounds of complaint. The committee found that D’s conduct was unsatisfactory. As well as the censure and a $500 fine, the committee ordered D to apologise, to refund the fees paid by the complainant and pay $500 costs to the Law Society. D was also required to attend the next ethics course that dealt with conflict of interest issues.

Acting for both parties not appropriate when interests differ S was a solicitor whose firm acted for the wife in separation proceedings. A transaction in the separation involved a conveyance of a new property to the wife, but the bank required the participation of the husband as a condition of providing finance. S acted for both parties in this transaction. A lawyers standards committee found this had breached the Rules of Conduct and Client Care and censured S. The husband was initially represented by other solicitors in relation to an application

· LawTalk 841 · 9 May 2014

for an occupation order of the family home made by the wife. After negotiation between the lawyers, it was agreed that one of the steps in the separation was to be a sale of the family home. The wife wanted to purchase another property with her share of the proceeds. When she applied to the bank for finance to purchase the new property (before the sale of the family home had been completed), the bank refused to approve finance without her husband joining in the application.

The husband did so without obtaining any legal advice. Before settlement, S met with both the husband and wife to attend to disclosure of the loan agreement, to which both were to be party, and related matters. The husband’s lawyers were not involved, and did not know about the transaction. Settlement took place several days later. When the family home finally did sell, the bank refused to release the mortgage until $7,772.98 had been paid towards the

mortgage on the wife’s new property. The wife agreed to repay the husband over time. The husband complained that, in the meeting with his wife and S, he had signed a number of papers that affected his interests without proper advice nor an indication that he should seek independent legal advice. He said he had not had time to consider all the implications of the transaction. Rule 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) provides that a lawyer must not act for more than one client on a matter where there is a “more than a negligible risk” that the lawyer may be unable to discharge the obligations to one or more of the clients. S claimed he had received the husband’s informed consent, referring to the exception in Rule 6.1.1. This provides that, subject to Rule 6.1, a lawyer may act for more than one party in respect of the same transaction where the prior informed consent of all parties is obtained. Rules 6.1 states that a lawyer must not act for more than one client on a matter in any circumstances where there

Barrister fined for failing to render invoices A barrister, D, failed to respond to queries about the manner in which he had charged his client $38,000 for representation in a criminal case. An investigation by a lawyers standards committee revealed that D had failed to render a final invoice and account of work undertaken and had deducted fees without rendering adequate invoices. The standards committee determined that this was unsatisfactory conduct. The committee fined D $3,500 and ordered him to pay $1,500 costs. The managing director of a company paid funds totalling $43,750 to the trust account of D’s instructing solicitor. The instruction was in relation to drugs charges against three individuals and two related companies. D acted for the clients for 18 months before the managing director of the client companies changed to new counsel. Client care letters were sent at the beginning of the instruction, in which D’s fee of $1,000 per hour plus GST was agreed.

is a more than negligible risk that the lawyer may be unable to discharge the obligations owed to one or more of the clients. S said he had advised the husband to obtain independent legal advice, but the husband said he did not wish to do so. S did not, however, have a file note to this effect, and the husband could not recall this part of the discussion. The standards committee commented on the “clear dangers for both parties in [S] acting for them both” in the circumstances of this particular case. S had clearly advised the wife of the risks to her in the arrangement. The standards committee said “the potential implications for [the husband]… could have been to his detriment and could not be protected satisfactorily by a practitioner who is obliged to act in the best interests of [the husband’s] former spouse.” As a result there was “more than a negligible risk” that S was unable to discharge his obligations to one or both of the parties. Further, the husband did not have a

However, the clients reported that they received no invoices, and that they sought invoices and the return of any amount which was surplus to the amounts on the invoices. Despite numerous telephone calls and email requests, the managing director received no response from D. The clients complained to the Law Society. The standards committee resolved to investigate, and appointed a costs assessor. Only one invoice for $10,000 was found. The file, however, did disclose a considerable amount of work had been done by D and his staff. The committee considered the detail of the file, the seriousness of the charges, the amount of work carried out, and noted that D’s fee had been agreed at $1,000 per hour. The standards committee was unable to say that a fee which would have left no surplus from the payment of $43,750 was excessive in the circumstances. However the failure to render invoices, and the failure to respond to the client’s queries were unsatisfactory conduct, the committee determined. These actions were in breach of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, in particular Rule 3.2 (failure to respond to clients in a timely manner), Rule 9.3 (debiting fees without rendering invoices), and Rule 9.6 (failure to render a final account).

proper understanding of the risks for him in the transaction so he could not be seen as having given “informed consent” for S to act for him. The committee found that S had breached Rule 6.1 by acting where there were more than negligible risks for one or both parties. The standards committee accepted that having one firm act for both parties to a separation on resulting conveyancing transactions can often be an efficient way to proceed, where the parties have a common purpose. However that is on the basis that independent legal advice is obtained to ensure that each party’s interests are adequately protected. This was not the case here. S had also communicated with the husband directly, without communicating with the husband’s lawyers, in breach of Rule 10.2. While the occupation order application had by that time been discontinued, S made no enquiries as to whether the husband’s solicitors were still acting. As well as censuring S, the committee ordered him to pay $1,000 costs.

Fined for not paying invoice A barrister, E, was fined $2,000 by a lawyers standards committee after he failed to pay an invoice from a forensic scientist. E had instructed a forensic scientist in November 2011 to provide advice in relation to a client matter. E had not paid the scientist’s fee of approximately $2,700, which was rendered to him by invoice in May 2012. The scientist complained to the Law Society. A standards committee found that E had breached Rule 12.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. This rule provides that where a lawyer instructs a third party on behalf of a client to render services, the lawyer is personally responsible for payment of the third party’s fees, costs, and expenses, in the absence of an arrangement to the contrary. E had failed to pay the invoice and the committee determined that the breach of the rule was unsatisfactory conduct. E had also failed to respond to the complaint despite being invited to do so. The committee ordered E to pay the outstanding invoice within 14 days. As well as the fine, E was ordered to pay $1,200 costs. LawTalk 841 · 9 May 2014 ·

WI L L S

M AT H E W L AU R I E N OV I S

XIAOJING CHENG

MORRIS DICK WELLINGTON

Would any lawyer holding a will for the above-named, late of Kaikoura, born on 20 September 1971, who died on 23 October 2013 at Tangimona, please contact Ian Farquhar Lawyer:

Would any lawyer holding a will for the above-named, late of Dezhou, Shandong, born on 21 June 1990, Student, who died on 11 April 2014, please contact Benazir Din, Amicus Law:

i.farquhar@farquharlaw.co.nz Ph 07 378 1859 PO Box 1239, Taupo 3251

bdin@amicuslaw.co.nz Ph 09 905 3688 | Fax 09 969 1492 PO Box 68804, Newton 1145 | DX CP27004

Would any lawyer holding a will for the above-named, late of 5/47 Puckey Avenue, Kaitaia, previously resident in Christchurch and Auckland, born on 7 October 1941, who died on 22 August 2011, please contact Andrea Miliona, David Shanahan, Lawyer:

SI TUATIONS VAC ANT

andrea@davidshanahan.co.nz Ph 09 430 0674 | Fax 09 430 0758 PO Box 1801, Whangarei 0140

M A L C O L M WAY N E F O W L I E Would any lawyer holding a will for the above-named, late of 153 Hokianga Road, Dargaville, who died on 15 February 2014, please contact Ron Warne, Hammonds Law, Solicitors: ron@hammondslaw.co.nz Ph 09 439 7099 | Fax 09 439 6464 PO Box 16, Dargaville 0340 | DX AA23502

Deputy Public Defender – Public Defence Service Christchurch (Vacancy 25540) and Wellington (Vacancy 25539) The Public Defence Service (PDS) provides high quality legal advice and representation in a full range of legally aided criminal cases, aimed at helping people access justice, and promotes the values of integrity, fairness, consistency and high quality service to its clients. It also provides professional leadership of the Duty Lawyer Service. We are seeking Deputy Public Defenders for both our Christchurch and Wellington offices, who will lead and continue to develop a high quality criminal legal aid defence service in those centres. As part of a professional and dynamic service, you will report to the Public Defender and be part of the Regional Management and Senior Leadership teams. The position requires excellent people management skills and the ability to run an office, including organisational planning and managing budgets. We are seeking applications from well respected lawyers who have proven credibility with judges, peers and others in the legal community, with a speciality in criminal advocacy. Your professional leadership and expertise in mentoring, coaching, training and criminal advocacy will ensure that lawyers within your Public Defence Service office are effective and well supported.

DAV I D A L B E RT N O R R I S Would any lawyer holding a will for the above-named, late of Christchurch, Retired Crane Driver, who died on 5 May 2013 aged 76 years, please contact Peter J Tatham, Hornby Law: pjt@saunders.co.nz Ph 03 349 5111 | Fax 03 349 4876 PO Box 16274, Hornby, Christchurch 8441

M A P U A T A G A L O A F E ’A O Would any lawyer holding a will for the above-named, late of 5 Heathberry Close, Papatoetoe, Auckland, born on 18 May 1949, who died on 17 November 2011, please contact Kimberly Knox, Pidgeon Law: kimberly@pidgeonlaw.co.nz Ph 09 337 0826 | Fax 09 337 0827 PO Box 6535, Wellesley Street, Auckland 1141

To apply, please go to the Ministry of Justice vacancies website http://careers.justice.govt.nz/Pages/Vacancies.aspx click on the position job title and follow the instructions. Applications close on Monday, 19 May 2014. TO LE AS E

Inhouse Insurance Solicitor

WELLINGTON CBD - OFFICES TO LEASE

Auckland Based

We are seeking a litigation solicitor with a minimum of three years’ PQE to join our busy team on a 12 month fixed term contract. You will need to be highly self motivated, extremely analytical, have proven problem solving skills, and be able to communicate succinctly across all levels within the business. Knowledge of insurance law would be highly desirable but is not a requirement. You will be required to manage Insurance litigation files which are run by our legal panel. The role is challenging and requires you to liaise closely with internal stakeholders including senior leaders across the business in NZ. You will be required to provide proactive, timely and practical advice on the litigation as well as liaising with our panel firms and senior external counsel. You will also be involved in providing advice on a wide range of issues relating to the Canterbury earthquakes and supporting the General and Life Insurance Team in providing advisory services to the business. Critical analysis, measurement and feedback on advice from our external legal partners will be expected. If you think you can meet the expectations of this challenging and exciting role, we want to hear from you. Vero is proud of our sensational staff culture. We are delighted to have achieved staff engagement and enablement scores above global high performing levels. Through our parent company, the Suncorp Group, we are part of one of the largest financial and insurance operations throughout Australia and New Zealand. Called Vero since 2003, we are a long-standing New Zealand general insurance company. We’ve been providing insurance products and services to help protect businesses and individuals against financial hardship arising from loss, liability or damage here for more than 130 years. Our four values - Integrity, Customer Focus, Excellence and Expertise are at the heart of everything we do. To submit your application for this role please visit our careers site https://careers.vero.co.nz/ and enter the job code 31762. Closing date for applications is Thursday 22 May 2014.

Integrity

Customer Focus

· LawTalk 841 · 9 May 2014

Excellence

Expertise

Zone Law, Intellectual Property and Business Law Firm currently have five to six offices available to sub-lease. The office sizes are around 8 – 9 square metres. This is high quality space including common areas of kitchen, meeting rooms and break out areas. The building is located in the Wellington CBD at Level 14, Kordia House, 109-125 Willis Street. The earthquake rating is 88%. The offices are modern, with a great view and lots of natural light. This space is $280/square metre plus GST plus incidentals on a pro rata basis. Please contact Karen Doucas at info@zonelaw.co.nz or call 04 801 5040.

The Classifieds

HEAD OF CORPORATE & INSTITUTIONAL LEGAL • Highly sought after leadership opportunity • Auckland CBD

WI L L S

KENNETH CLARKE TYE Would any lawyer holding a will for the above-named, late of Mangakino and Reporoa, fencing contractor, born on 24 May 1944 at Te Awamutu, who died on 18 November 2011 at Hamilton, please contact Ian Farquhar Lawyer: i.farquhar@farquharlaw.co.nz | Ph 07 378 1859 | PO Box 1239, Taupo 3251

REGINALD SYDNEY BROWN Would any lawyer holding a will for the above-named, late of Tauranga, retired, born on 4 March 1924, who died on 2 March 2014 at Tauranga, please contact Ian Farquhar Lawyer: i.farquhar@farquharlaw.co.nz | Ph 07 378 1859 | PO Box 1239, Taupo 3251

R EG I ST RY A D M I SSI O N Under Part 3 of the Lawyers and Conveyancers Act 2006

Bosselmann Heather Isobel Mary Samundsen Burke Emma Jane Howard Hannah Theresa Hyde Rachel Emma McKeown Julia Alice Partington Kar-Yen Alana Simpkin Tenille Jocelyn Trangmar Rachel Lisa Venz Anna Jane Wakelin Craig Matthew Wells Samuel (Sam) Raymond Williams Max Alan Curtin

A P P ROVA L TO P R AC T I S E ON OW N ACCO U N T Under s30 of the Lawyers and Conveyancers Act 2006

Cole Maria Ellen Harvey Miranda Caroline Miller Anita Kim Reuvecamp Iris Henriette Vera Tarsau Melanie Peti Akata

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 15 May 2014. Any submissions should be given on the understanding that they may be disclosed to the candidate. 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.

Here is an exceptional opportunity for a high performing lawyer with specialist knowledge of institutional banking, financial markets, securities, trade and corporate law to join this market leading bank. This is a key leadership role within the organisation. You will be responsible for managing a team and ensuring timely, accurate and high quality legal advice is provided to your internal clients. You and your team will provide transactional advice on the full range of financing arrangements offered by an institution of this calibre. In addition, you will advise on all nontransactional legal work falling within the corporate and institutional sphere: providing advice on issues of product development, regulatory change and input into submissions or policy decisions on law changes affecting the business units. You will also assist with other legal projects when required. You will drive performance across the wider legal team and contribute positively to the team culture. Ideally you will bring to the role: • Extensive legal experience gained in both law firms and in-house with a minimum of 10 years PQE along with staff management experience • Specialist institutional banking, financial markets and securities legal transactional experience • Strategic thinking and influencing skills with the ability to foster excellent working relationships • Impeccable work standards and attention to detail. Few senior in-house roles of this quality become available. With exposure to first rate work, a dynamic, high performance team culture and broad career development opportunities, this is a highly sought after position to seriously consider. For a confidential discussion about this opportunity and to obtain a copy of the position description, please contact Jennifer Williams at Williams Legal Recruitment on 09 446 6050 or email jw@williamslegalrecruitment.co.nz

L ISA AT T R I L L , R EG I ST RY M A N AGER lisa.attrill@lawsociety.org.nz 04 463 2916 0800 22 30 30, 04 463 2989

LawTalk 841 · 9 May 2014 ·

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