LawTalk 881 by New Zealand Law Society

Law Talk 12 F e b r u a r y 2016

881

Justice Panels Innovative way to achieve justice

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12 February 2016 · LawTalk 881

Inside

12 February 2016

LawTalk 881

Our Profession, Our People

Justice panels An innovative way to achieve justice.

20 Access to justice Three possible legislative responses that could enhance access to justice.

24 Te Rira Puketapu

Inside the law The courage of lawyers is saluted as lawyers’ organisations around the world marked another Day of the Endangered Lawyer on 22 January.

Practising well The brain and workplace motivation – using science to help your business.

Tell the world you're an expert Positioning oneself as a thought leader is an ideal marketing strategy for lawyers.

Scott Donaldson, who took part in the recent Lawyers Cricket World Cup. Photo: Fairfax Media NZ / Southland Times.

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36 A trustees guide to litigation pitfalls It is often a surprise for lawyers, who have cheerfully assumed the role of a trustee, to realise how easily they can be exposed to litigation risk.

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LawTalk 881 · 12 February 2016

News Points

Court fees affecting access to justice Ordinary people are being put off seeking justice because of court fees, three senior judges told the justice committee of Britain’s House of Commons on 26 January. Master of the Rolls Lord Dyson, together with Sir James Munby and Sir Ernest Ryder, told the committee that “ordinary people” who fell out of the safety net of fee remissions were being deterred from taking their cases to court. Small and medium businesses – “the sort this government says time and time again they want to encourage” – are also being put off seeking justice, Lord Dyson said. The judiciary warned ministers of the “real dangers” of both implementing and increasing civil court fees. Sir James Munby, President of the Family Division of the High Court of England and Wales, said incremental increases in court fees for divorce amounted to “another poll tax on wheels” and were disproportionately affecting women.

NZ falls in corruption index New Zealand has fallen to fourth place in the Transparency International Corruption Perceptions Index (CPI). This is its second consecutive drop in a survey it has previously topped seven times because of the corruption-free reputation of its public sector. Denmark, Finland and Sweden are now perceived to have the least corrupt public sectors. New Zealand, which was ranked number one in both the 2012 and 2013 surveys, fell behind Denmark in the 2014 CPI. “Our government must act immediately to re-establish New Zealand’s stand-out reputation for a trusted public sector,” says Transparency International New Zealand Chair, Suzanne Snively. “New Zealand trades on its corruption free reputation.” The CPI is produced each year to highlight the global importance of transparency.

Myanmar’s new lawyers’ association The Independent Lawyers’ Association of Myanmar (ILAM) wwheld its inaugural meeting on 20 January. Aung San Suu Kyi, President of the National League for Democracy in Myanmar, which won a sweeping victory in the 2015 general election, and International Bar Association President David Rivkin opened the meeting. ILAM is the first national, independent professional organisation of lawyers in Myanmar.

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12 February 2016 · LawTalk 881

From the Law Society

Enhancing our justice system Lawyers have a very important role to play in helping make Aotearoa/ New Zealand a better place for all citizens, individually and collectively. Many of us have been involved in recent initiatives that aim to enhance our justice system. In this issue of LawTalk, we look at one of these initiatives: Community and Iwi/Marae Justice Panels. These panels currently operate in Christchurch, Gisborne, Manukau and Waiwhetu (Lower Hutt). The aim of the panels is to better hold offenders to account for less serious offending by engaging them with a community-based, rather than a court-based process. Police officers have the discretion to refer people to a justice panel. Our experience in Gisborne is that justice panels are providing positive outcomes both for offenders and for their communities. Our experience is that offenders who are dealt with by justice panels are significantly more likely to move on to make much better life choices. That includes making choices that result in them no longer offending. The result of this is a lower recidivism rate. Reducing recidivism is not the only advantage either. As well as seeing people take completely new, and more positive, directions in their lives, we are also seeing relationships that were damaged by the offending restored. We have seen people working to mitigate the damage their offending has done, for example by making payment to victims. And these are just some of the outcomes. Over recent years, we have seen a number of developments that are enhancing our justice system, in particular our criminal justice system. One has been the introduction of justice panels. Another has been the move to develop solution-focused or problem-solving courts, such as alcohol and drug courts. Initiatives such as this, which – in the words of United States legal academic Professor Susan Daicoff – aim to transform law into a “healing profession” (see http://omeka. azsummitlaw.edu/items/show/24), are frequently described as “therapeutic jurisprudence”. The idea behind therapeutic jurisprudence is that, by altering the forms in which law is practised, the operation of the law can develop so that it can lead to outcomes that are healing and restorative, while at the same time holding people who break the law to account. Initiatives such as justice panels and problem-solving courts have another advantage also, and this is one of the big factors in their success. This advantage is that these initiatives have significantly lessened the cultural and subcultural divide that so frequently exists between those who enter the justice system as defendants and the system itself. Reducing this cultural divide leads to enhanced engagement with the system and opportunities for healing for both defendants and their communities. Transforming the law into a “healing profession” that is appropriate to our country’s cultural diversity is, therefore, a path that we must take to make Aotearoa/New Zealand a better place for all citizens, individually and collectively. Tiana Epati New Zealand Law Society Gisborne branch President

Our Profession, Our People

LawTalk 881 · 12 February 2016

Our Profession Our People Justice Douglas White has been appointed a Judge of the Court of Appeal of the Cook Islands, effective 1 February 2016. Justice White has recently retired as a Judge of the Court of Appeal of New Zealand. Justice White He was admitted in 1969, became a barrister sole in 1986, and was appointed a Queen’s Counsel in 1988. He practised as a Silk for 21 years before being appointed as a Judge of the High Court of New Zealand in 2009 and then as a Judge of the Court of Appeal in 2012. He was appointed a Law Commissioner in 2015.

On the move Wilson Harle has promoted Janna McGuigan to senior associate. Janna specialises in complex commercial and civil cases, and has particular experience in trust litigation, regulatory and competition matters, and Janna McGuigan directors’ duties cases. Before joining Wilson Harle in 2011, Janna took her LLM as a Grotius Fellow at the University of Michigan. She is currently Vice-President of the Auckland Women Lawyers’ Association. Webb Henderson has promoted Jordan Cox to senior associate. Jordan is a commercial and regulatory lawyer with a particular focus on the telecommunications, media and technology and electricity sectors. Jordan Cox He advises New Zealand and international clients on their commercial

1850 BC This is the date of the earliest known legal decision. A clay tablet reveals the murder of a temple employee by three men. The victim’s wife knew of the killing but remained silent. Eventually, the crime came to light and the men and woman were charged with murder. Nine witnesses testified against the men and woman and asked for the death penalty for all four. But the wife had two witnesses who told the court that she had been abused by her husband and that she was not part of the murder. The men were executed but the woman was not.

arrangements, including wholesale supply and the rollout of new fibre and satellite networks, products and services. Jordan’s regulatory practice is focused on regulatory frameworks, compliance and public policy in these sectors. Tom Hunt and David Raudkivi have been made partners of Russell McVeagh. Tom specialises in debt capital markets and financial services regulation. David will continue to focus on equity capital markets, Tom Hunt mergers and acquisitions, private equity and other corporate transactions. Russell McVeagh has also promoted Anna Crosbie in the property group and Ian Beaumont in the corporate advisory team to senior associate. David Raudkivi

Rebekah Revell has been made an associate at Norris Ward McKinnon. Rebekah is a specialist lawyer in the family disputes team. She has a focus on resolving disputes through direct negotiation and mediation. Rebekah Revell Trust and estate disputes, often with relationship property components, are also a focus for Rebekah and an area of particular interest. Rebekah also advises on contracting out (prenuptial) agreements and resolves disputes over the care of children.

Joshua Shaw has joined the Christchurch-based dispute resolution team at Wynn Williams as a partner. Joshua was previously a partner at another national law firm and brings prosecution experience. He Joshua Shaw will work alongside Jared Ormsby, Jeremy Johnson and Amanda Douglas to provide dispute resolution solutions to clients throughout New Zealand. Shannon Johnston has been made a partner of Fitzherbert Rowe Lawyers in Palmerston North. Shannon has been with the firm for five years having previously practised in Wellington, Melbourne and Shannon Johnston Palmerston North. Shannon has a background in resource management, local government and civil litigation.

Charlotte Houghton

Jessica Barnard

Charlotte Houghton, Jessica Barnard and Louise Trevena-Downing have joined Anderson Lloyd. Charlotte specialises in litigation and dispute resolution Continued on page 8...

Our Profession, Our People

12 February 2016 · LawTalk 881

Working with smart people a big plus By James Greenland Working with a “great team of smart people” is a real benefit of being in-house, says Department of Internal Affairs (DIA) legal counsel Tim Whiteley. Originally from the United Kingdom, Mr Whiteley (LLB (Hons) Lancaster University) was living in London and working for a United States-owned mortgage lender when he decided to visit to New Zealand “to have a look” with his now wife Angela – whose work visa had expired. They “never went back” and now have two Kiwi-born kids, George (16) and Xanthe (18), and call Khandallah, Wellington, home. Before joining DIA, Mr Whiteley was an in-house counsel with Contact Energy. “Leaving Contact created an opportunity to think about my career options and direction. I hadn’t worked in the public sector before and it seemed logical to look at this area for a new challenge, especially when one lives in Wellington,” he says. Mr Whiteley’s position at DIA is on the commercial side of the legal team, which has a strong focus on information technology. There is also a regulatory/public law part of the team, he says. The DIA has an incredibly wide-ranging portfolio of responsibilities, and is the government’s lead agency for ICT activities which are co-ordinated by the Government Chief Information Officer (GCIO). “The GCIO role is about transforming the way ICT is managed across Government, to support better public services for citizens. Given my interest and experience in the technology area in previous jobs this seemed a great combination.

Challenging and complex “I’ve quickly found that the work the team’s doing, and has been doing for the last few years, is really challenging and complex; in terms of products and services, and the manner in which they are delivered. “Fortunately, the team is great and really smart, so with their help I’ve been getting up to speed with what we’re dealing with and planning to do.” Mr Whiteley says his work focuses on the DIA’s commercial operations, which keeps him busy writing

Tim Whiteley

❝ In-house lawyers [are] more directly connected to their clients and have a more direct and ongoing interest in outcomes

contracts, reviewing terms, negotiating and interpreting – and helping staff to deal with other legal issues and questions concerning the Department’s operations. As with private sector in-house lawyers, he says, he still has to do a fair share of researching, learning and liaising with external service providers. “I’ve never worked in private practice so I can’t make direct comparisons to working in that environment. However, I think there more similarities between those who work in the different parts of the profession than people sometimes want to admit – albeit it’s clear that specific priorities and areas of interest may differ depending on which sector one’s in. “I think in-house lawyers tend to be involved more closely and collaboratively in the day-to-day work of their clients – who are their work-mates. And they can see and be a part of the overall business context. In this way, they’re more directly connected to their clients and have a more direct and ongoing interest in outcomes. Continued on next page...

Our Profession, Our People

LawTalk 881 · 12 February 2016

Interests of all

ON THE MOVE, CONTINUED...

“Private sector in-house lawyers have to understand the broader context, of course, but can probably be a bit more focused on their own organisation’s interests than public sector colleagues, where there is a focus on public service and broader interests of all New Zealanders.” There are other differences between working in-house with the public sector and his experience with private companies, Mr Whiteley says, although overall the types of work and expectations are much the same. “Essentially, there is an extra ‘layer’ that needs to be taken into account, which covers things like being a public servant, underlying policy, plans and protocols, public sector-specific legislation and rules, the position and requirements of other state agencies, the government procurement rules, official information and public records and privacy considerations,” he says. “Another difference is in scale. Major government departments are big and complex organisations. We work closely and collaboratively with other public sector lawyers and organisations; we have access to Crown Law and the Government Legal Network, as well as a range of other specialist practice groups and networks. “Private sector in-house lawyers have ILANZ of course, but don’t generally have such a broad level of collegial support, resources and facilities available to them, and, in New Zealand often work in small teams and for relatively small organisations or fairly autonomously from larger, offshore parent businesses.” He says he suspects that both private and public sector in-house lawyers are equally affected by their underlying professional obligations, the increasing expectations of clients, and general pressures on budgets and resources. “In all my jobs there have been strong drivers to get things done quickly, cost-effectively and simply. As we all know, complex transactions or activities don’t always result in those outcomes in practice, but I’d like to think I can use my corporate background to help the DIA get things done as effectively and efficiently as possible.”

with a particular specialty in personal and corporate insolvency, debt recovery, and security enforcement. Charlotte also has experience dealing with disputes between directors, shareholders and trustees, disLouise Trevena- putes involving negligent Downing valuations and commercial leasing disputes. Jessica relocated from Australia to join Anderson Lloyd’s commercial team, working as a solicitor in the Auckland office. Louise joined the firm as a law clerk earlier in 2015 and was admitted in November 2015. She is now a solicitor in the Dunedin resource management team where she advises on resource management, public works and local government acts. Robyn Daglish has become a partner of Brandons in Wellington. Robyn specialises in property, private client and asset protection matters and has been with the firm since May 2014. Robyn Daglish

Buddle Findlay has ap pointed three new partners. Based in Auckland, Miriam Andrews is a member of the banking and financial services team. Miriam has legal and commercial experience in portfolio sales and acquisitions, syndicated Miriam Andrews loans, property finance, agri-funding and acquisition finance. Nick Bragg, who is also based in Auckland, specialises in corporate and commercial law with experience across a range of mergers and acquisitions (including takeovers), capNick Bragg ital markets and securities transactions, commercial contracts and corporate governance matters. In Wellington Amy Ryburn specialises in technology, media and telecommunications (TMT), commercial contracting and procureAmy Ryburn ment. Amy works with a

ILANZ Scholarship applications open Applications are now open for the 2016 ILANZ Scholarship. The scholarship award is up to $10,000 and may be made to an applicant or applicants whose area of study has potential to benefit the in-house legal profession in New Zealand. Potential areas of interest identified by the ILANZ committee include, but are not limited to: research on privilege, ethics, independence, the impact of the shared services amendments, innovation and the use of technology in the in-house profession. The scholarship is only open to in-house lawyers and postgraduate law students. People considering applying can contact ilanz@lawsociety.org.nz to discuss their proposal. More information is at http://ilanz.org/resources/ilanzscholarship/.

range of clients from listed companies, large SOEs and government departments to startups, with a particular focus on large-scale ICT project work (from initial procurement phases through to contract drafting and negotiation). Meghan Nicholson has joined Crown Law’s Wellington office as an Assistant Crown Counsel in the Revenue Team. Meghan has a background in corporate/ commercial law and litigation and will be practising in Meghan Nicholson the revenue and public law areas at Crown Law.

Our Profession, Our People

12 February 2016 · LawTalk 881

A new take on opening a suburban office By Lorraine Lipman After 16 years in practice as a family lawyer it was time in March 2015 to leave the comforts of Parnell for an “old age” OE. After three months of travel, in June 2015 home became Warsaw, Poland. It is an exciting and vibrant city but “retirement” was never on the agenda. I am fortunate to have become part of Tag International Development (Tag) as their Director of Girls’ Empowerment. Tag (www.tagdevelopment.org) is an international development charity that deploys unique humanitarian expertise and proven social models to create sustainable solutions for developing countries. It shares expertise and builds capacities in developing countries around the world.

First advocacy centre These are exciting times as we work to establish our first advocacy centre in Ndhiwa, Kenya. This is a rural area where we already partner with Team Kenya, a United Kingdom registered charity on girls’ empowerment projects (teamkenya.org.uk). The proposed centre will provide a community-wide resource for advice and support on rights and prevention of gender-based violence, focused on girls and young women. In rural Kenya, gender-based violence, rape, child pregnancy, early marriage and girls not completing their education is common. The legal system, including the judiciary and police, and the complex male-dominated society create more imbalances against girls and young women. Recent examples from the Ndhiwa social worker’s report on the girls include: ▪▪ She was defiled by a school teacher where she was schooling before and the teacher is serving jail for the offence and this was a very good talk since the girl was able to share with other friends and give them tips of what they should do in such cases. ▪▪ This 15-year-old was engaged into sexual relationship with a man who was a houseboy in a neighbour’s home, due to her desperation to get the basic needs and being an orphan, the man could provide her with some things she needed. Later she discovered that she

The new building that will house the advocacy centre in Ndhiwa, Kenya.

was pregnant and told the boy who, instead of helping the girl, disappeared from the village and now the girl is asking for assistance of legal action taken upon the victim. The girl is six months pregnant and still in school. The centre will focus on three main areas: ▪▪ advocacy through empowerment education of the girls and young women, educating the judiciary, police and other civic authorities on the rights of young women and raising awareness in the community at large to reinforce and support respect for the rights of young women and girls; ▪▪ legal support for its clients, so that victims of gender-based violence and sexual exploitation will have access to the options available for resolution including community-based mediation, restorative justice and the Court process; and ▪▪ protection, including provision of counseling for victims of gender-based violence or sexual exploitation. We are fortunate that we will be able to share office accommodation with Team Kenya in their new office in Ndhiwa but need to raise initial funds to set up the centre with furniture, office supplies, computers, a vehicle – as this is a rural area – and salary to staff the office. Phase 2 will be to raise funds for the ongoing support of the centre.

❝ These are exciting times as we work to establish our first advocacy centre in Ndhiwa, Kenya

Getting ‘hands on’ We want lawyers in New Zealand to get “hands on” with the project. Of course update Continued on next page...

Our Profession, Our People

LawTalk 881 · 12 February 2016

Welcome to the profession In the last issue of LawTalk, the name of one of the recently admitted lawyers was spelled incorrectly. The lawyer is: Elisha Yi-Chiao Hsiao LawTalk apologises for this error, which was in the information provided to us.

A N E W TA K E O N O P E N I N G A SUBURBAN OFFICE, CONTINUED... and progress reports will be given but the challenge, both personal and professional will be for New Zealand lawyers to come out and see the centre and help out for a week or more and get involved with the community. In an article in Aljazeera on 3 Jan 2016, Gordon Brown, the United Nations Secretary-General’s Special Envoy for Global Education and the former Prime Minister and Chancellor of the Exchequer of the United Kingdom, said: “2016 must be the year of girl empowerment globally – the beginnings of a worldwide civil rights movement that focuses on freeing girls from the worst persecution in some of the poorest, most remote and most dangerous places in the world”. For more details on how you can get involved and contribute, contact lorraine@tagdevelopment.org.

Working to solve global issues Waikato University law and social science student Shaymaa Arif is one of 12 New Zealand delegates attending the Ship for World Youth Programme in Japan. This programme, operated by the Government of Japan, brings together more than 240 youth leaders from 11 countries to study and discuss global issues while living on board a ship for six weeks. They set out on 14 January. Delegates will attend workshops and seminars about disaster risk reduction, education, environment, information media, community Shaymaa Arif development and youth entrepreneurship, and will do aid work during stops in Chennai and Colombo. “Because everyone comes from a different culture and background, discussing these topics with them will give me a totally new perspective on things,” Shaymaa says. Working to solve some of these big global issues isn’t a new thing for Shaymaa. She and her family emigrated from Abu Dhabi to New Zealand in 1996 but they’ve travelled between the countries ever since. Shaymaa joined her first human rights protest when she was 13 years old, and subsequently sat on the Human Rights Council for the Abu Dhabi Model United Nations. Now in her fourth year of a conjoint Bachelor of Laws and Social Sciences, Shaymaa’s ongoing work in promoting justice and peace in Middle Eastern nations made her a finalist in the 2015 Waikato Women of Influence Awards.

Postgrad scholarship Applications are now open for the FMB Reynolds Scholarship in Law to Oxford. The purpose of the scholarship is to assist New Zealand law graduates to commence postgraduate law study at Oxford University. It has been established to recognise the support that Emeritus Professor Francis Reynolds, Worcester College, Oxford has provided to New Zealand law students at Oxford for over 40 years. Applications close on 28 February, and more information (including eligibility) is at www.universitiesnz.ac.nz/scholarships/fmbreynolds.

A f t e r 2 1 y e A r s w i t h C h A p m A n t r i p p, p h e r o z e J A g o s e h A s C o m m e n C e d p r A C t i C e A s A b A r r i s t e r f r o m thorndon ChAmbers. Chambers & partners: “excellent technical knowledge and strategic thinking” (2013); “his judgement is outstanding” (2014); ranked Band 1 litigator (2015). Legal 500: “highly professional and capable… a phenomenal intellect” (2015).

d d i : +64 4 460 0742 m : +64 27 241 2999 e : pheroze.jagose@chambers.co.nz

Our Profession, Our People

12 February 2016 · LawTalk 881

NZ presence in Lawyers' Cricket World Cup

Invercargill lawyer Scott Donaldson, who took part in the recent Lawyers Cricket World Cup. Photo: Fairfax Media NZ / Southland Times.

Two New Zealand lawyers, Scott Donaldson from Invercargill and John Dean from Wellington, took part in the recent Lawyers Cricket World Cup. With no New Zealand team in the contest, Mr Donaldson and Mr Dean played for the Commonwealth A team at the tournament, held in Brisbane from 31 December to 11 January. Although the Commonwealth team did not reach the final, won by Pakistan who chased down India’s score in the final over, the tournament was “a huge success”, Mr Donaldson says. The tournament has been held four times previously and is growing in popularity and extravagance every year. Teams this year included Pakistan, two from India, two from Australia, two from Sri Lanka, two from India, two from England and two Commonwealth teams. The tournament is as much a cricket tournament as it is a social gathering of cricket and law enthusiasts. The Australian hosts did a superb job of putting

on several events during the tournament including multiple cocktail parties, dinners, ceremonies, a conference and a very impressive fireworks display. Efforts are underway to put a strong New Zealand team together for the next tournament which will be held in Sri Lanka in April 2017. A provisional date has also been set for a trans-Tasman series against Australia to be held in January 2017. Cricket players interested in playing

for the New Zealand Lawyers Cricket Team should contact Scott Donaldson, Scottd@hewatgalt.co.nz, 022 623 0071. First or second grade playing cricketers or recently retired cricketers are being sought in the first instance, however Scott is keen to hear from anyone who wishes to participate. Participants must have a current practising certificate to be eligible.

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Justice Panels Innovative way to achieve justice By James Greenland 12

It is probably not controversial to write that New Zealand’s courts are overcrowded and our corrections facilities overflowing. Duty lawyers are overburdened, and justice staff are overworked. At the same time, legal aid is underfunded and the causes of criminal behaviour remain largely overlooked. The system is so stretched. It has become so impersonal in its attempts at equality and efficiency, some say, that for many in Aotearoa it represents only a veneer of justice that covers another institution of colonial oppression, a leviathan to battle against rather than contract with.

Mounting pressure on, and dissonance with, the traditional process of dealing with crime and criminals: arrest – prosecution – conviction – incarceration, ultimately institutionalisation, suggests that new systems for achieving justice, outside of the court system, ought to be explored. A joint initiative between Police and the communities they serve, Community and Iwi/Marae Justice Panels are an innovative attempt to personalise justice, to hold offenders to account in whatever meaningful way will most likely result in positive outcomes for all involved. LawTalk investigates.

LawTalk 881 · 12 February 2016

Going around the revolving door-jam New Zealand Police culture has been undergoing a paradigm shift. Since about 2010, a series of “common sense initiatives” have been introduced under the “Policing Excellence” programme, what Deputy Chief Executive Māori, Superintendent Wally Haumaha says was at the time “the largest strategically significant and operationally relevant change programme undertaken by New Zealand Police”. These initiatives were designed and implemented to make Police “more effective and more focused on prevention,” Superintendent Haumaha says. One of those initiatives, “Alternative Resolutions”, was a response to calls from all corners of the justice sector – including Police, the Law Commission and judiciary – “to develop better alternatives to hold offenders to account for less serious offending, without having to use the courts”. Through the “Alternative Resolutions” process, police officers are encouraged to consider and recognise opportunities for the constructive resolution of low level crime, which might mean engaging offenders with a non-traditional (outside-of-court) process. If an officer believes that formal court procedures are not as likely as other methods to result in a positive outcome for offenders and communities, then a referral may be made to a Justice Panel. Justice Panels (referring to both the community and iwi-led Justice Panels) are comprised of at least one Police staff member who sits as a panellist and manages the referral process. Remaining panellists are community leaders and volunteers; church leaders, sports coaches, kaumatua, counsellors, social workers, and school teachers. Individuals are held to account for their actions and are ordered to make reparations but without the stigma and associated consequences of a criminal conviction. As the panellists at Lower Hutt – the foundational Iwi Justice Panel – said during LawTalk’s visit, anyone and everyone is free to become involved, to have their say, so long as their intention is the restoration of the offending individual and the community around them. It’s not so much the rules by which the panels operate, as who sits on them and what they have to say.

Who gets referred? While the process might differ in each case, depending on the needs of the victim, the community, and not least the offender, Police follow clear criteria in exercising their discretion to select appropriate offenders for Justice Panel referral. Offenders must be adults (over 17 years), and must intimate guilt/admit the offence. Police’s understanding of the offence must meet evidential sufficiency and the offence must carry a maximum penalty of six months’ imprisonment or less. Family violence and methamphetamine offences are excluded.

❝ Individuals are held to account for their actions and are ordered to make reparations but without the stigma and associated consequences of a criminal conviction

Alternative Solutions “Alternative Resolutions” are focused on the “formalised use of discretion (in place of charges) to reduce the use of court processes for low-level offending, while ensuring crime is still addressed and victims are supported”. Police officers can employ any one of three alternative resolutions, if circumstances suggest that is the “best way to resolve offences in order to achieve positive behaviour change”: 1. pre-charge warnings; 2. written traffic warnings; and 3. Community/Iwi/Marae Justice Panels Currently there are four funded Justice Panels in operation across New Zealand. The first Community Justice Panel pilot was launched in Christchurch in 2010. Over the last year, three trial “Iwi Justice Panels” have served the communities of Manukau, Gisborne and Waiwhetu (Lower Hutt), with funding to June this year.

12 February 2016 · LawTalk 881

Waiwhetu Marae

Where to now?

If the arresting officer believes that alternate resolution could be considered, and that it is not in the public interest to proceed to a formal charge (at that stage), and if the offence itself or the circumstances of the offence suggest that avoiding court processes is the best way to achieve positive results, then an offender may be referred to a Justice Panel. To ensure consistency, monthly reports are prepared by police to monitor Panel referrals and to identify opportunities for system enhancements and adjustments, Mrs Wilson Tuala-Fata says. Police’s evaluation of the pilot Christchurch Community Justice Panel concluded in 2012 that that alternative resolution pathway has potential to reduce prosecutions of low level offences/offenders “and therefore reduce the burden on Courts and the justice system for less serious offences”. The report found the panel had achieved reasonable offender compliance, demonstrated strong community involvement, reduced re-offending rates of those who went through the process, and, perhaps most importantly, provided the opportunity to address offenders’ underlying behaviour and to support victims’ restoration.

❝ Talk within the communities is that a national rollout, or at least expansion, is imminent

The iwi/Māori-led Panels in Manukau, Gisborne and Waiwhetu were subject to formal evaluation late last year, with reports expected to be finalised by February, and a Justice Sector Fund bid has been made to continue the three trials through 2016/17. Meanwhile, government agencies are considering the next steps, “in terms of development, implementation and management”, for the existing Panels and, potentially, more. Talk within the communities is that a national rollout, or at least expansion, is imminent. The Ministry of Justice’s Aphra Green says it’s fantastic to have witnessed such a “groundswell of enthusiasm” for Iwi and Community Justice Panels, which he describes as an “innovative way of empowering individuals and communities to address the causes of crime”. “These panels are a promising alternative response to low-level offending. “We know that once people formally enter the criminal justice system it becomes harder to address the multiple factors that contribute to their likelihood of offending.”

LawTalk 881 · 12 February 2016

Te Rira Puketapu

However, “it’s important the fundamentals are in place” before any decisions are finalised, she says. “This includes consideration of the role and fit of panels in the wider criminal justice system.” Justice Minister Amy Adams shares the enthusiasm. “Iwi and Community Justice Panels appear to hold real promise for holding people to account, while keeping them out of the formal criminal justice system and putting in place the support they need to avoid future criminal behaviour,” Ms Adams says. “We know that once people come into the formal justice system it becomes more challenging to address the root causes of their offending and reduce their likelihood of future offending.” Impressed by the pilot in Christchurch, Ms Adams nevertheless says that no formal decisions have been made to expand the trials nationally as operational issues continue to be refined. “There will be no new panels established until justice sector leadership have considered any future expansion of panels in terms of their benefits, effectiveness and alignment within the wider justice system.”

Optimism at the coalface While Government is naturally cautious to ensure consistency of operation and “fit” within the wider system before committing to a national roll out of Justice Panels, those on the ground are encouraged by the growing volume of,

❝ Justice Panels appear to hold real promise for holding people to account, while keeping them out of the formal criminal justice system and putting in place the support they need

and number of voices in, the conversation, and are convinced they’ll soon get the green light to share lessons they’ve learned with new panels in other parts of the country. Neville Baker is Chairman of Te Rūnanganui o Taranaki Whānui ki te Upoko o Te Ika, which operates the panel at Waiwhetu. His optimism extends far further than the next round of funding. Long having worked within te ao Māori (the Māori world), Mr Baker considers the Justice Panel to be a long-awaited response to the then-Ministry of Social Development’s Puao-te-ata-tu or Daybreak Report, which identified systemic causes of Māori socio-economic deprivation. Nearly 30 years ago, that report recommended a new approach to engaging with Māori who had ended up “in the system”, and were unmotivated to break the cycle of hardship and poor decision-making that had led them there. Proper engagement would require utilisation of people in the community who understood families and whakapapa, and the benefits of talking to people in their own environment, the report noted. Its conclusions are now tuned into

12 February 2016 · LawTalk 881

official policies such as Whanau Ora, and they resonate in harmony with the very raison d’être of the Justice Panels. Funding and national rollout decisions aside, to Atiawa, dawn is finally rising on the Daybreak Report.

Prophecy and personalised justice To understand how Atiawa’s Justice Panel at Waiwhetu works it’s important to know something about Parihaka, the hallowed resistance that is said to have inspired similar movements by individuals as revered as Mahatma Ghandi a world away in India with its belief in passive protest and tenet “goodwill to all”. Descendants of those who led the Parihaka resistance remain guided of the hybrid-Christian and Māori values that their ancestors stood for and hoped could thrive in Aotearoa, a land rich enough to sustain both new and traditional ideas. And those values – pivotal to Atiawa – continue to influence Waiwhetu Justice Panel members today. Kaumatua Te Rira Puketapu and his wife Potiki are truly pillars of their community. Their marriage of 54 years has produced more than 25 grandchildren and it’s without exaggeration that they can claim a familial connection with most of Lower Hutt. Mr Puketapu, a proud descendant of Parihaka leaders Te Whiti and Tohu, says Atiawa’s tikanga or protocol is followed during panel sessions, just like house rules are followed by guests in a stranger’s home. However, he says it’s not just about being Māori, as anyone is welcome at Waiwhetu and offenders of all nationalities had been through the panel. Shortly before LawTalk’s visit, a young Samoan woman had been at the centre of panel discussions, with her church minister having led the processes of beginning to understand and learn how to help this

Te Rira (right) and Potiki Puketapu

❝ Offenders of all nationalities have been through the panel

woman change her behaviour and contribute to her community. While many referred are first time offenders and often young adults, the upper age is not restricted either. “A neutral venue provides mutual advantage,” Mr Puketapu says, comparing the warmth of a panel hearing discussion circle to the formal sterility of most courtrooms. Despite best efforts, the courts are not neutral but “Eurocentric”, he says. Western justice places great value on ideals like equality and consistency that value the individual, but inherently misses opportunities to engage effectively with

LawTalk 881 · 12 February 2016

communities, particularly Māori communities that traditionally have placed greater significance on family and social connections than the individual.

He tangata, he tangata, he tangata – “it is people” The Waiwhetu Panel’s Whanau Ora Hata Wilson says panel “sittings” can b e co m e “ rea l ly e m o tional”. The panel engages with offenders differently, he says, with respect or “manaakitanga” an integral part of the consensus-seeking discussion. Offenders are invited to talk about their life and circumstances. They may bring support people. The korero/talk starts, and both offender and the panel begin to identify and discuss how to address the causes of behaviour that resulted in the offender’s arrest. “We work out the best ways for the offender to better themselves,” says Police’s Iwi Liaison Officer Asher Hauwaho. “It’s about motivating them to want to contribute to the community, using terms they can relate to. For example, maybe they’ve had some experience with team sport like rugby. With help, they can hopefully see how offending against the community is like letting the team down.” The panel blends traditional hui/discussion structure with a contemporary approach, he says. It’s the “best of both worlds”. “A big part of why it works is it’s setting in the community,” Mr Hauwaho says. “Local knowledge, local connections. There are very few degrees of separation here. Everyone knows everyone.” The panellists aren’t likely alone in thinking that an “I’m disappointed in you” scowled by an unhappy grandmother

Hata Wilson

Julie Wilson

❝ It’s about motivating them to want to contribute to the community, using terms they can relate to

12 February 2016 · LawTalk 881

MUMA’s Marae Community Justice Panel

MUMA’s Marae Justice Panel in action.

will have more effect on a person’s behaviour than an unknown law man’s sentence. “It’s a matter of working smarter”.

Steering the waka toward restoration Julie Wilson is the panel’s “navigator” – a role that was carved out in the trial’s early days. To extend the metaphor, she helps guide the ship that carries an offender on their journey to betterment and community reparation. Mrs Wilson assists with completion of the “sentence” or sanctions ordered by the panel, which are designed to allow individuals to accept responsibility for their behaviour and address its underlying causes. This may involve assisting offenders to improve their lives, by leading them to training or education, therapy classes, counselling, or services to combat drug and alcohol abuse. Often, she says, it simply involves a trip together to Work and Income, where the person can learn they’ve long been entitled to support they’ve not been

receiving. Mrs Wilson’s role also often involves teaching offenders about their ancestry/ whakapapa and cultural identity. Discovering unknown relatives and whanau connections and learning just a little about their history can lift an offender from a state of hopelessness. It can motivate them to better understand their place within their community, Mrs Wilson says. “If you find out a person’s family dynamics and their needs – then you can start to make positive changes.” To Mr Puketapu, the wharenui/building at Waiwhetu and the establishment of a Justice Panel that is outside of the formal and institutionalised Western justice system fulfils the prophecy of Parihaka leaders Te Whiti and Tohu, who he says foresaw the eventual flourishing of Māori under the combined values of Christ and tikanga Māori. “It’s about goodwill. Quite often, the offender needs compassion, too,” he says. For Mr Puketapu, Justice Panels are more than a good idea; they are a vision realised. A prophecy fulfilled.

The Manukau Urban Māori Authority (MUMA) started delivering Enhanced Alternative Resolution Iwi Panels in September of 2014. While the current funding contract is set to expire in June, MUMA leaders say they are confident the Justice Panel service will continue into the future. Justice Sector Services Manager Irirangi Mako says MUMA has held over 180 panel hearings at Ngā Whare Waatea Marae and Papakura Marae. “We have dealt with a range of low-level offences, ranging from threatening behaviour, possession of stolen goods, driving offences (ie, driving while disqualified, etc), and trespassing,” she says. “Renamed ‘Marae Community Justice Panel’ by MUMA, the name promotes a shared responsibility with our community to take ownership of these matters, and establishes our urban marae as a place for everyone – not just Māori. “While the service primarily targets Māori adults 17 years plus and their whanau, the participants referred reflect the multicultural South Auckland community.” Ms Mako says outcomes and agreements from panel hearings are unique to each offender, but the panel follows a robust and identical process each time. “Some of the agreements made with offenders include volunteering at local marae or MUMA food bank, a formal apology to the victim or agreeing to make repayments for theft or damage. “Agreements can also include working with other agencies or services that support positive change such as counselling and anger management courses,” she says. “We acknowledge the impact that crime has on the community, and that negative behaviours have an impact on more than just the individual victim and offender. “The unique experience and opportunity we provide is our familiarity with the Whanau Ora model of working – developing whanau plans that address long-term aspirations and solutions for the whole whanau, not just meeting the short-term needs of the offender.”

Access to Justice

LawTalk 881 · 12 February 2016

Three possible legislative responses By Chris Patterson

“...as long as litigation, access to the courts, remains expensive, then anyone who has a right that stands in need of vindication should be able to obtain funding from anyone willing to offer it on whatever terms it is offered. The public policy rationale is simple in [Jeremy Bentham’s] opinion: access to the courts is a right, and the State should not stand in the way of individuals availing themselves of that right.”1 Improving access to justice is far from a new issue. As a profession we are obliged and have good reason to take positive steps to tackle the ongoing and growing problem of the lack of access to justice. Improving access to justice is far from a simple matter. The answer will never be found with simplistic responses such as lawyers doing more pro bono work. I do, however, believe that the profession does have an obligation to provide an appropriate level of pro bono assistance. Certainly we could follow the lead of other jurisdictions in terms of their approach in encouraging and managing pro bono schemes. In this article I will say no more about pro bono work. Instead, I focus on three barriers which impede access to justice that will require legislative intervention. Specifically, the exclusion of the right to enter into conditional fee arrangements for certain areas of work; the restriction of charging legally-aided clients supplementary fees; and the absence of a class action regime.

Conditional fees Conditional fees are regulated by ss 333 to 336 of the Lawyers and Conveyances Act 2006 (LCA) as well as Rules 9.8 to 9.15 of the Lawyers and Conveyances Act (Lawyers: Conduct and Client Care) Rules 2008 (RCCC). Section 335 of the LCA prohibits lawyers from charging conditional fees in respect to a number of areas of practice. These are broadly criminal, immigration and family

❝ As a profession we are obliged and have good reason to take positive steps to tackle the ongoing and growing problem of the lack of access to justice

Chris Patterson

proceedings. The majority of the excluded areas of practice can readily be justified on policy grounds. However, in my view, the general exclusion relating to proceedings within the Family Court jurisdiction cannot be so easily justified, if at all. In particular, relationship property and Family Protection Act claims are two areas that access – or more aptly a lack of access – to justice, is a growing problem. The exclusion in respect to relationship property claims is hard to justify on policy grounds alone. It creates an obvious absurdity where a lawyer is prohibited from acting for a client on a conditional fee arrangement in respect to relationship property but not in respect to disputes between a husband and wife or de facto partner over assets which are not relationship property. The exclusion not only discourages access to justice through limiting the number of lawyers willing to act for parties in relationship property matters, but it also leads to a great inequality of arms in such disputes. In my experience it is the norm, rather than the exception, that one party in a relationship property dispute will have a greater capacity to meet legal costs. Again in my experience, it is not uncommon for one party to a relationship property dispute to have limited or no real ability to meet legal costs at all while at the

Access to Justice

same time not qualify for legal aid. It is these individuals who struggle and in some cases are unable to secure the services of the lawyer of their choice. It is exactly those individuals who are thereby unjustifiably disadvantaged by the exclusion. The same arguments equally apply to some parties in Family Proceedings Act claims. An applicant with a meritorious claim but without the ability to pay for legal services, will be faced with the reality that accessing justice is often easier said than done. This is especially so when faced with a well-resourced opposing family member or members with a significant financial incentive in ensuring that the terms of the will under challenge are upheld. Many relationship property and Family Protection Act claims relate primarily, if not exclusively, to an economic contest. The resolution of how a fixed pool of assets is to be distributed does not involve any policy which could reasonably justify excluding a party from being able to freely contract with a lawyer on terms involving a conditional fee arrangement. While I can obviously only speak for myself, I suspect more lawyers would be willing to act for those who are not in a position to pay legal costs on a strict time and attendance basis if the exclusion was removed.

Legally aided parties

12 February 2016 · LawTalk 881

lawyers entering into supplementary fee arrangements with legally-aided clients. Rather, s 105 of the LSA prohibits lawyers from taking payments such as conditional fees unless they are “authorised by the Commissioner”. The LSA does not prescribe the process for obtaining authorisation or the factors that the Commissioner must or may take into account. Despite a couple of attempts, I have yet to successfully persuade the Commissioner to provide approval for the charging of a supplementary fee on a contingency basis. In particular, I have unsuccessfully sought approval to charge a fee that covers the difference between my legal aid and ordinary hourly rates in the event of a successful outcome for my legally-aided client. I have even offered to cap the success fee to the amount awarded for costs less repayment of the legal aid grant. Still no approval. When it comes to costs, the rule that costs follow the event places an unsuccessful non-legally-aided defendant in a better and lower risk position than if the successful party Continued on next page...

Many lawyers have either never had or have decided to cease acting for civil legal aid clients. One of the main reasons why civil legal aid lawyers are now a rare species is because for many lawyers undertaking civil legal aid work, the work is not at all profitable. Civil legal aid rates are divorced from the reality of the costs of running an efficient and effective legal practice. Recently I was somewhat alarmed and Expert Advice and Evidence concerned to learn that in the Auckland Ian Haynes ONZM is available to advise in region there are only 11 solicitors who are respect of claims against law firms or to approved to undertake legal aid matters provide expert evidence. Ian routinely accepts before the Court of Appeal and the Supreme instructions to provide expert opinions on Court. professional and property issues and has frequently given expert evidence in such cases. I do find it somewhat frustrating having to explain to an intending client who is Ian has a wealth of experience to draw on seeking help with an appeal to either the when advising. He has been in practice for Court of Appeal or the Supreme Court and many decades, is a long-standing member of the NZLS Property Law Section Executive requires legal aid that their non-legal aided Committee, and has been involved in the approved solicitor cannot instruct me. drafting of the Rules of Professional Conduct After explaining the reasons imposed by and other professional rules and regulations. Legal Services I then have to start ringing through or emailing the list of 11 to ask if Ian is a former Judicial Conduct Commissioner, and has served as President of the New any of them are willing to take yet another Zealand Law Society. reverse brief. While a relaxation of Legal Services requirements regarding instructing Ian is a consultant with Kensington Swan. solicitors would help, a more important area He can be contacted on telephone 09 375 1117 or 021 981 134, or email is that in respect of supplementary fees. ian.haynes@kensingtonswan.com. The Legal Services Act (LSA) does not contain an absolute prohibition against

LawTalk 881 · 12 February 2016

was not legally aided. This is due to the rule that an award of costs cannot be greater than a party’s actual costs. Legal aid grants are often less than scale costs, particularly in the High Court. I fail to see any justifiable reason why a successful legally-aided party cannot have a supplementary conditional fee arrangement whereby the lawyer is entitled to charge the difference between any legal aid grant and the costs that would have otherwise been awarded had they not been legally aided. One way of encouraging more lawyers to undertake legal aid work would be for the LSA to be amended to provide conditional supplementary fee arrangements with a cap that the supplementary fee did not exceed any award that the court would have made but for the client being in receipt of legal aid. I fail to see why an unsuccessful non-legally-aided party should escape ordinary costs consequences simply because the other party’s lawyer was willing, often at a loss, to act on legal aid. It appears to me that legal aid lawyers are not only subsidising their clients’ legal costs but also those who are not legally aided and unreasonably refuse to settle, necessitating the intervention of the Court.

Class actions New Zealand is very much the exception in that it does not have a class actions regime. One of the primary policy drivers for having a class actions regime is to promote and encourage access to justice. New Zealand, like Australia, has had a long history of representative actions. However, in my view, the shortcomings in the representative action regime fail to fully promote and encourage access to justice. The interlocutory warfare that plagued the Feltex litigation exposed some of the shortcomings associated with the representative proceedings process. Class actions enable individuals to have access to justice that they would otherwise not have due often to the small size of their respective claims and the large costs of prosecuting them.

Access to Justice

❝ The individuals who would benefit from a class actions regime have to wear the loss that they have sustained due to the wrong committed against them

The absence of a class actions regime results in otherwise meritorious claims simply not being brought due to economic considerations. The individuals who would benefit from a class actions regime have to wear the loss that they have sustained due to the wrong committed against them. Regulatory watchdogs such as the Commerce Commission, the Financial Markets Authority and the Serious Fraud Office cannot be expected and are unable to effectively prosecute every meritorious claim where large numbers of individuals have suffered losses. Since the introduction of a class action regime in Australia during 19922 there have been over 3203 class actions which have returned approximately AU$6 billion to class members that they would have otherwise not have received. I fully accept that our economy is smaller than Australia and I would like to believe that we are more law abiding. What I cannot accept is that High Court Rule (HCR) 4.24 provides an effective substitute for a class action regime in terms of promoting access to justice. HCR 4.24, all 63 words that make up the rule, is not designed nor could it ever carry the weight of a modern class action. Twenty-first century New Zealand society expects mass production and instantaneous service where it is efficient and effective to do so. We, as a society, are entitled to have procedural mechanisms that can efficiently and effectively give access to justice to large groups where the loss suffered

Access to Justice

by individual members is so small that it makes their rights practically unenforceable. Only having the option of HCR 4.24 is like restricting communications to the use of smoke signals while denying that the internet even exists. During 2007 and 2008 the Judicial Rules Committee provided the Ministry of Justice with discussion papers in respect to the introduction of a class actions regime which included draft legislation. On 10 November 2009 the then Minister of Justice received a briefing paper in respect to the Rules Committee’s recommendations. No substantive work has been carried out on the draft Class Actions Bill and Rules since then. While I accept there are competing priorities for the Government, the talk of promoting access to justice has been around for a long time now such that it is hard to understand the apathy on this front. The argument for the introduction of a modern class action regime could repeat the comments of a now retired Australian Judge who once, extra judicially, commented: “[W]e cannot be content with a legal system which prides itself on fair substantive laws, but laws which are not, in reality, available for enforcement by the ordinary citizen. If he does not know the law, is not informed of it, has no realistic access to legal advice, is too timid, apathetic or ignorant to enforce his rights, then the Rule of Law may become a cliché; or a shibboleth.”4 Lawyers doing more pro bono work is not the answer. We do it now and have been doing so well before I started practising during the mid 1990s. Increased funding of legal aid is unlikely to occur if the pattern of the more recent Government is anything to go by. Lets immediately stop talking about such “solutions”. Introducing a class action regime, changing the rules that relate to conditional fees and legally-aided parties are ready solutions to increase access to justice. Those three areas can and should be addressed

12 February 2016 · LawTalk 881

immediately. The removal of those barriers will not cost the tax payer nor require the profession to do even more work for no fee in return. Chris Patterson is the Director of Chris Patterson Barrister Limited and is a member of the New Zealand Law Society Auckland branch Council. 1 Lord Neuberger, “From Barretry, Maintenance and Champerty to Litigation Funding”, Harbour Litigation Funding First Annual Lecture, Gray’s Inn, 8 May 2013, 4. 2 The Australian Law Reform Commission (ALRC) issued a discussion paper in 1997 discussing the possible introduction of a class action regime. In 1988 the ALRC made a specific recommendation supporting a class action regime over continuing with representative proceedings. The ALRC took the position that a class action regime would reduce the cost of court proceedings to each individual class member, would enhance access to justice, would promote efficiency in the use of court resources, ensure consistency in determination of common issues and would make the law more enforceable and effective. 3 Between 4 March 1992 to 3 March 2014 there were 329 class actions filed – refer Prof Vince Morabito, An Empirical Study of Australia’s Class Action Regimes – Third Report, November 2014. 4 Kirby M, Reform the Law – Essays on the Renewal of the Australian Legal System (Oxford University Press, 1983), at 169.

Inside the Law

LawTalk 881 · 12 February 2016

The courage of lawyers saluted By Geoff Adlam Lawyers’ organisations around the world marked another Day of the Endangered Lawyer on 22 January. The purpose of the event is to call attention to threatened human rights lawyers around the world. The first such day was organised in 2010 and it has gained momentum since. In a statement released to acknowledge the day, New Zealand Law Society President Chris Moore expressed the Law Society’s support for lawyers around the world who risk harassment, persecution, and injury or death in their work. Mr Moore said New Zealand was highly ranked for its adherence to the rule of law and institutions which uphold human rights. “An important part of this is the ability to criticise aspects of the justice system, to advocate for change, and for lawyers to represent their clients without fear of arrest or violence. Sadly this is not so for members of the legal profession in some other parts of the world.” He said lawyers in countries such as Saudi Arabia, China, Honduras, Egypt and the Philippines experienced persecution and imprisonment from the authorities in 2015 because they were defending human rights. “The New Zealand Law Society applauds and salutes the courage of lawyers around the world who continue to represent people and to speak out in the face of oppression,” he said. Lawyers continue to be harassed and persecuted in many countries around the world. Three of the worst places to be a lawyer are:

Honduras Each year the Day of the Endangered Lawyer pays special attention to one designated country. In 2015 it was the Philippines and this year it is Honduras. At present more lawyers are murdered in Honduras than any other country in the world. The Inter American Human Rights Commission reports that between 2013 and

Geoff Adlam

❝ The New Zealand Law Society applauds and salutes the courage of lawyers around the world who continue to represent people and to speak out in the face of oppression

March 2015, there were 45 violent acts against lawyers, resulting in the deaths of 34 lawyers and six other people who were present. The problems stem from the inability of the Honduras government to respond to the extremely high levels of crime and violence in the country. Since 2010 the Honduras has had one of the highest murder rates in the world. The United States Department of State says transnational criminal organisations conduct drug trafficking and other criminal activity throughout the country. Lawyers are targets when they defend people hunted by criminal gangs or when they prosecute the criminals. In 2014 at least 20 judges received death threats and three have been murdered in the last two years. The police force appears to be involved in criminal offending and is unable to offer any protection.

Saudi Arabia In September 2015 Saudi Arabia’s UN ambassador in Geneva, Faisal bin Hassan Trad, was elected Chair of the UN Human Rights Council panel that appoints independent experts. However, this does not mean that Saudi Arabia is a good place to be a human rights lawyer. On 27 November 2015 Saudi lawyer Walid Abu al-Khair was awarded the 20th Ludovic Trarieux International Human Rights Prize. The problem is that he was not in Geneva to receive the award. Instead, he is serving a sentence of 15 years’ imprisonment after being found guilty of charges such as “harming public order in the state and its officials”, “inflaming public opinion and disparaging and insulting judicial authority”, and “publicly slandering the judiciary, distorting the kingdom’s reputation, making international organisations hostile to the kingdom, and issuing unverified

Inside the Law

12 February 2016 · LawTalk 881

Lawyers murdered in 2015 statements that harm the kingdom’s reputation and incite against it and alienate it”. Three other Saudi lawyers are serving 5-8 years in prison for using Twitter to say the Saudi justice system was “backwards”. Among other members of the Saudi legal profession in jail are former judge Sheikh Suliaman al-Rashudi (sentenced to 15 years in December 2012 after giving a talk on the legality of peaceful protest in Shari’a law) and former law professor Abdulkareem al-Khoder (serving 10 years for offences such as “disobeying the ruler” and “harming the image of the state by disseminating false information to foreign groups”). The former wife of Mr al-Khair, Samar Badawi, was detained overnight, interrogated and harassed by police on 12 and 13 January 2016 about activity on the Twitter account of Mr al-Khair.

China More than six months after the 9 July 2015 attack (“the 709 crackdown”) on the legal profession, Chinese lawyers are still missing, detained, held under residential surveillance or forbidden from leaving China. A joint statement by 115 worldwide organisations on 14 January 2016 noted that 14 lawyers and 22 human rights defenders are still being confined, with some having disappeared, and another 33 are banned from leaving the country. Bodies such as the United Nations Committee Against Torture and the International Bar Association continue to express deep concern at the treatment of the legal profession in China. In mid-January 2016 the Observatory for the Protection of Human Rights Defenders stated that human rights lawyer Shu Xiangxin had appeared before a criminal court on 8 January accused of defamation. He was sentenced to six months in prison and his lawyer’s licence was revoked. During the 30-minute trial Mr Shu’s defence lawyers were not allowed in court. He has been refused medical treatment and has been beaten and tortured by police while in custody.

Sadly lawyers continued to be murdered in a number of countries during 2015 because of their work. Some of those killed are remembered below. In most of the cases the murderers have not been captured. Indian lawyer Nabi Ahmed, 30, was shot dead in the Allahabad District Court premises on 11 March. Police Sub-Inspector Shailendra Pratap Singh has been charged with his murder, allegedly because of an argument over a court case. Pakistani lawyer Samiullah Afridi was murdered in Peshawar on 17 March by a Taliban-connected group. A couple of months earlier he had announced that because of death threats he would no longer be defending his cousin, Dr Shakil Afridi, who was convicted of charges related to assisting the CIA to kill Osama bin Laden. On 9 April lawyer Lorenzo Alberto Claris Appiani, 37, died after Claudio Giardiello opened fire with a pistol in Milan’s courthouse, methodically killing the lawyer, a co-defendant and a judge. Giardiello was on trial for fraudulent bankruptcy and Appiani was appearing as a witness against him. After police captured him Giardiello said: “I wanted to take revenge on those who ruined me”. Francisco Palomo, 63, a Guatemalan lawyer representing former dictator Efrain Rios Montt against genocide charges, was shot dead in Guatemala City on 3 June while driving home. Two men on a motorcycle pulled alongside his car and shot him 12 times. The body of lawyer Julio César Mejia Salgado was found near Chilpancingo, Mexico on 24 June with the bodies of three doctors. The four had been abducted while driving on a highway. Over 60 lawyers have disappeared or been murdered in the Mexican state of Durango alone since 2008. Some of the bodies have carried messages saying the lawyer should not have been defending certain clients. From Besant Nagar in India, lawyer Kamesh Srinivasan, 34, was shot and killed by his client Eshwaran of Tondiarpet on 6 September allegedly because of an argument over the payment of fees. The body of Malaysia’s deputy public prosecutor Anthony Kevin Morais, 55, was found stuffed in a concrete-filled drum near the Klang River in Selangor on 16 September. Six men have been charged with his murder, which has been strongly linked to his investigation of criminal offending. Ramon Elesteria, 68, was shot dead on his way to his car after attending a court hearing in Bayawan City, Philippines, on 29 September. The killer fired more shots at Elesteria as he lay on the ground before leaving the scene. Thair Elçi, 49, President of the Bar Association of Diyarbakir in southeast Turkey, was shot in the head on 28 November 2015 immediately after a press conference in which he called for an end to violence. He died on the spot. Elçi had been detained several times and received death threats after saying the banned Kurdistan Workers’ Party should not be regarded as a terrorist organisation. Lawyer Ejimofor Ozongwu was murdered in Okwojo, Nigeria on 23 December 2015. Police have arrested four people and a land dispute is suspected to be the cause. Aged in his 50s, he was Executive Secretary of the Movement for the Actualization of Adada State.

LawTalk 881 · 12 February 2016

Inside the Law

Notable quotes ❝ This question shows we’ve still got a long way to go toward gender equality. I am proud of my achievements as a leader and a lawyer but I doubt any of the former 16 former solicitors-general have been asked what leadership challenges they faced as men.” — Incumbent Solicitor-General Una Jagose answers the Dominion Post question “As a female leader, what is the biggest challenge you have come across?”

Rightful Claims/ Worthington Clark are genuine New Zealand lawyers who have received inquiries from clients approached by the Australian company Worthington Clark Pty Ltd or its Rightful Claims division can be assured the business is long-established and genuine. The increase in internet or email-related fraud has made lawyers and their clients increasingly cautious about approaches from hitherto-unknown people located outside New Zealand. The Rightful Claims type of business is relatively unknown in New Zealand, but is well established in Australia and the United Kingdom. Describing themselves as “asset recovery specialists”, Rightful Claims employees identify assets such as shares, bank accounts, insurance policies and inheritances which are unclaimed. After identifying the owner or presumed rightful owner, the company makes contact and offers to help claim and secure the asset. In return for a proportion of the asset value, the company acts through the whole claim process. Lawyers who have contacted the New Zealand Law Society about Rightful Claims advise that the company does not disclose the value or nature of the asset to the presumed owner. The Managing Director of Worthington Clark Pty Ltd, Richard Clark, says his company has been active in Australia for over 30 years. The Rightful Claims division is just a part of the business. He says Worthington Clark helps Australian lawyers, private and public trustees and executors to resolve genealogies for intestate estates. “We undertake the sometimes complex process of identifying, locating and proving the entitlement of persons according to the relevant intestacy provisions of the jurisdiction. We also specialise in finding missing beneficiaries and other proof of kin and tracing kin matters that arise in the legal context, particularly in estate work,” he says. Mr Clark says the Rightful Claims division stems from the company’s knowledge of unclaimed assets and their recovery process. “We are able to research long lost or unclaimed property, identify the rightful claimants and provide a success-based service to recover the benefits of the unclaimed property.”

❝ Judge Roberts earned the respect of counsel and the community with his firm but consistent approach in court. He was courteous to all those who appeared in his court, unless they were discourteous or were misleading the court, then look out!” — The President of the Law Society’s Taranaki branch, Rajan Rai, pays tribute to District Court Judge Allan Roberts, who retired on 28 January after sitting in Taranaki since 2007. ❝ He will not be applying and if he did it would not be granted, let’s be frank.” — Judge Bruce Davidson speaks to the duty lawyer for Mathew Kidman after Kidman allegedly removed his electronic monitoring bracelet, sparking a widespread manhunt in the Wellington region until he was recaptured. ❝ The 24 hours seems very odd and seems unusual to all of us, and of course it’s a delight for headline writers. Frankly, it’s pretty silly.” — Mark Fenhalls QC, chair of England’s Criminal Bar Association, leaves no doubt about his views on an Interim Sexual Risk Order which Yorkshire Police have obtained. The order requires an unnamed man to give police 24 hours’ notice before he intends to have sex. The man was acquitted of rape charges in 2015 but is believed to pose a risk to women. ❝ It is important that the legal profession reflects the society it represents and that talented young people from all walks of life can become lawyers.” — Christine McLintock, president of the Law Society of Scotland, calls for greater access to education in the Law Society’s list of priorities for the next Scottish Parliament. ❝ Shame on you, you should die of cancer, you’ve ruined a little boy’s life.” — One of the anonymous messages received by lawyer Len Kachinsky who has had leukemia. Kachinsky represented 16-year-old Brendan Dassey, the nephew of Making a Murderer’s Steven Avery, for six months after Dassey confessed to the rape and murder of Teresa Halbach under his uncle’s command. The television series suggests that Dassey did not get a fair trial because Kachinsky believed he was guilty and urged him to take a plea deal. Kachinsky was removed as Dassey’s lawyer for allowing him to be interviewed by police without an attorney. ❝ Another visit to Steven Avery. 38 boxes of files reviewed. He remains innocent & framed.” — One of several tweets by Steven Avery’s new lawyer Kathleen Zellner. Geoff Adlam is the New Zealand Law Society’s Communications Manager.

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Practising well

LawTalk 881 · 12 February 2016

The brain and workplace motivation Using science to help your business By Ken Trass For over a century motivational tools for the workplace have centred on job title, career potential and, perhaps unsurprisingly, remuneration. However, while businesses continue using these extrinsic workplace motivators they are no longer fuelling people’s desires to contribute to what is now a less industrialised economy. Instead, in the 21st century marketplace – an increasingly more fluid and creative space – it is intrinsic motivators like flexibility, autonomy, feeling safe and having a sense of purpose that are the driving factors for workplace satisfaction.1, 2 Significantly, there is scientific evidence that compensatory incentives are actually detrimental to performance and happiness.3, 4 In 2009, as an example, economists at the London School of Economics looked at 51 studies of pay-for-performance plans. Here’s what they said: “We find that financial incentives can result in a negative impact on overall performance.”5

Ken Trass

in motivation is dopamine. Dopamine is a well-known chemical which is passed from one neuron to the next, interacting with various receptors inside the synapse between two neurons. This happens throughout your some 1,000 trillion synapses which fire up to 50 times a second.7 Your brain is a complex wee beast. Initial studies of dopamine concentrated on its well-known connection to pleasurable feelings until it was noticed that dopamine release was triggered by high stress scenarios.8 It turns out this occurs before we obtain rewards, meaning that dopamine is actually encouraging us to act and motivate us to achieve or avoid something bad.9, 10 Research now supports dopamine’s impact on: ▪▪ memory and attentiveness;

Reduced effectiveness This is especially true when examining tasks that have a high degree of complexity. Studies done suggest that while repetitive and concrete tasks may respond well to extrinsic rewards, activities which require casting a wider net over an issue may actually cause the brain to narrow its focus and reduce effectiveness.6 Einstein’s once famously said: “insanity is doing the same things over and over and expecting different results”. Unfortunately, this seems applicable to the businesses world – persisting with this “carrot and stick” model when it comes to motivating and engaging staff. So why haven’t we changed our models of motivating and influencing others, given that the power of intrinsic motivators has been recognised and iterated in research for well over 40 years? The reason is simple. It would require a reframing our entire approach to business. And change is scary.

Motivation So what is motivation and can we influence it? To trace the source of motivation, we need to examine the brain. The brain is a myriad of interconnected yet independent chemical and electrical messages. Neurotransmitters spark these messages to keep us alert and on task. One specific neurotransmitter that plays a role

Here are a few simple ideas that may influence workplace motivation and personal health: ▪▪ Use positive language – saying a simple “good morning” is known to increase people’s motivation and sense of well-being. ▪▪ Keep connected – let people be part of, and know their role in, where your organisation is heading. ▪▪ Mix and match – when reviewing goals, mix up your teams. People may be more interested in feedback from outside of their area. New ideas may stem from these heterogeneous groups. ▪▪ Learning together – engaging in teams to learn new skills is engaging and increases your organisation’s skill base. ▪▪ Match tasks to talents – keep people engaged by helping them do more of what they are great at. ▪▪ Authentic praise – do this often and lead by example. ▪▪ Follow through – as a leader always follow through on a promise. Always. ▪▪ Open days – consider a day a fortnight where people can choose to work from home or where people decide what particular piece of work they will focus on. ▪▪ Chart it – have a team approach for attaining goals. Make a public and purposeful move to congratulate team members when they complete even the smallest of milestones.

Practising well

12 February 2016 · LawTalk 881

▪▪ positivity; ▪▪ social behaviours; ▪▪ creativity; ▪▪ sleep maintenance; and ▪▪ motivation.11

another neurotransmitter, serotonin – play a large part in the occurrence of depressive episodes.15

Restructuring your business

Pathway dependent Aside from the amount of dopamine released, it depends heavily on a person’s environment to where dopamine is passed to in the brain and, in regards to motivation, it matters which neural pathway dopamine takes. The mesolimbic pathway, which originates in the middle of the brain, is considered the most important reward pathway in the brain. This pathway goes via the nucleus accumbens – the part of your brain that predicts rewards and motivates you to do something. Low levels of dopamine and a poor or negative environment (which can reduce dopamine production) can influence mood, our ability to socialise and make people less likely to work for things. Dopamine has more to do with motivation and cost/benefit analyses than pleasure itself.12, 13 So for some people in the workplace, the rewards that are offered – performance pay, extra holidays or the kudos of a fancy job title – may be having far less of an effect on performance than those employing them had hoped. So what kind of intrinsic motivation can be developed in the workplace and can we train our brain in regards to managing dopamine?

❝ Positive workplace environments, where colleagues regularly praise each other as they work together, will have higher levels of ... motivation

Training your brain You can train your brain to increase your dopamine levels. Allowing yourself time out to “thank yourself ” for attaining small goals during the day, helps your brain generate a dopamine response. Positive workplace environments, where colleagues regularly praise each other as they work together, will have higher levels of dopamine, and therefore motivation, than people working in isolation.14 This knowledge is important, as dopamine levels – along with

1 O’Donnell J, 2015, “Stop trying to bribe your employees” at www.fastcompany. com/3042240/stop-trying-to-bribe-youremployees-and-do-this-instead. 2 Loder V, 2015, “How great leaders motivate their teams” at www.forbes.com/sites/ vanessaloder/2015/02/25/how-great-leadersmotivate/#2715e4857a0b37db858115c4. 3 Charmorro-Premuzic T, 2013, “Does money really affect motivation: A review of the research” at https://hbr.org/2013/04/doesmoney-really-affect-motiv. 4 http://blog.achievers.com/2015/09/why-youshould-identify-your-employees-intrinsic-andextrinsic-motivators/. 5 Pink D, 2009, “The Puzzle of motivation” at www.ted.com/talks/dan_pink_on_motivation 11’13”. 6 Pink D, 2009, “The Puzzle of motivation” at

www.ted.com/talks/dan_pink_on_motivation 6’50”. 7 www.human-memory.net/brain_neurons. html. 8 Tidey J and Miczek K, 1996, “Social defeat stress selectively alters mesocorticolimbic dopamine release: an in vivo microdialysis study”, Brain Research 721 (1-2) pp 140-49. 9 Nunes E et al, 2013, “Nucleus accumbens neurotransmission and effort-related choice behavior in food motivation: Effects of drugs acting on dopamine, adenosine, and muscarinic acetylcholine receptors”, Neuroscience & Biobehavioral Reviews, pp 2015-2025. 10 Imperato A et al, 1991, “Changes in brain dopamine and acetylcholine release during and following stress are independent of the pituitary-adrenocortical axis”, Brain

Creating a change in how your business recognises achievements and rewards may be a significant game changer in regards to workplace motivation and satisfaction. Career analyst Dan Pink suggests that intrinsic motivators like flexibility, autonomy and a sense of purpose are three of the most important motivators of the 21st Century. Now while a balance is good – and providing a good lot of extrinsic motivators are probably essential in this world of consumerism, with dopamine’s influence over mood and motivation, thinking of ways to develop a more positive work environment are important. Dopamine has a powerful biological connection to our levels of motivation. Any techniques we can employ at work that reinforce positive feedback will influence maintaining alert and healthy brains. This information, and the understanding that motivation is more heavily influenced by intrinsic rewards such as autonomy and purpose, may help us create more positive and productive workplaces for the twenty-first century. Ken Trass is the New Zealand Law Society’s Professional Development Manager.

Research 538 (1), pp 111-17. 11 Salamonel J, 2012, “The Mysterious Motivational Functions of Mesolimbic Dopamine”, Department of Psychology, University of Connecticut, Storrs, CT 062691020 USA. 12 www.psychologytoday.com/blog/mouseman/200904/what-is-dopamine. 13 www.theguardian.com/science/2013/feb/03/ dopamine-the-unsexy-truth. 14 Mehta M, 2013, “Why our brains like short term goals” at www.entrepreneur.com/ article/225356. 15 Salamonel J, 2012, “The Mysterious Motivational Functions of Mesolimbic Dopamine”, Department of Psychology, University of Connecticut, Storrs, CT 062691020 USA.

LawTalk 881 · 12 February 2016

It’s time to tell the world you’re an expert By Sarah McGregor and Anna Lundon

Anna Lundon

The concept of a visible expert or thought leader is not new. The term “thought leadership” was coined over 20 years ago by Joel Kurtzman, when as editor of the Strategy + Business magazine, he interviewed a number of executives and academics whose ideas he considered worth discussing. A thought leader is someone who demonstrates leadership within their particular industry through sharing compelling intellectual capital. Positioning oneself as a thought leader is an ideal marketing strategy for lawyers. By their very nature lawyers have specialist expertise. The key is to share that knowledge with more than just colleagues or a few clients and in doing so become visible. In other words, start telling the world you are an expert.

Sarah McGregor

❝ Positioning oneself as a thought leader is an ideal marketing strategy for lawyers

Powerful benefits Actively adopting a thought leadership strategy that positions you or your firm as experts will require time, drive, planning and the commitment to step outside your comfort zone. Warren Buffet, Jim Collins, Seth Godin and Sheryl Sandberg didn’t become go-to people overnight. It took real expertise and effort. The payback of a thought leadership position offers powerful benefits: It demonstrates your intellectual horsepower. By publishing your unique perspective on topics relevant to your area of practice, you provide potential clients with tangible evidence that you know what you are doing. And your intriguing, insightful pieces also provide affirmation for your existing clients. It makes it easier for potential clients to choose you. Clients take a risk when they engage a law firm and naturally do all they can to mitigate that risk – consider how much of your new business is referral-based. By offering written proof of your expertise, logic and ability to simplify complex matters via a topical article on your website, you have taken the first step in turning a website hit into a prospect. It allows you to stand out. What better way to position yourself as a specialist and differentiate your firm from your competitors than by establishing yourself as a thought leader in your chosen area of law. It will help potential clients find you. Google rates websites that have regular, relevant content. If your articles

are updated on your website on a regular basis, you will rank well with Google, making it easy for potential clients to find your website when they search for law firms. Additionally, if your articles are on specific areas of law, such as IT Security, and are written with “key words” in mind, those googling “specialists in IT security” will be directed to your site. Research shows those regarded as thought leaders within their fields command higher fees. Recent American research from the Hinge Research Institute, revealed clients will pay over 13 times more for a visible expert than a regular professional. Becoming a thought leader is a strategic, planned, cumulative activity that starts with defining your areas of expertise. No matter what area of law you practise in, what’s important is whether you are perceived as an expert within your chosen field. Having decided your specific area of focus and checked out how your competition stacks up, you then need to identify your audience. You don’t actually have to tell the world you are an expert, just a defined group within it.

Key influencers Defining who you are trying to influence will then drive your strategy, as it will determine where and how you communicate your knowledge. Potential clients are an

12 February 2016 · LawTalk 881

obvious target as your goal is to raise your profile, and inclusion of key influencers is also critical. Knowing where your expertise lies and who’s radar you want to be on is just the start. The real key to being a thought leader is how you make that audience feel smarter. You will need to start generating unique and original ideas that solve seemingly complex issues within your chosen area, followed by dissemination of those ideas in a planned and structured way. The exact method used to get the word out will be determined by where your target audience gathers to communicate and seek information. It will be a combination of blogging, social media and speaking engagements that drive your visibility. While this may sound daunting, the reality is you have probably already generated much of the content, which could be hidden

❝ Your aim is to provide compelling intellectual capital whatever the forum

in a client newsletter deep within your website or in an obscure publication your actual audience doesn’t see. Speaking engagements, keynote presentations and white papers are not new concepts. What is new is the idea of a planned strategic approach to refining and sharing your expertise, to ensure real return on the time you invest. The advent of social media, particularly in the form of LinkedIn and Twitter, has provided experts with a new arsenal of tools to reach their audience and cultivate a following. But remember, sharing everything you know is not thought leadership. Think insight – not information. Your aim is to provide compelling intellectual capital whatever the forum. Sarah McGregor and Anna Lundon established The Marketing Loft in 2014. This boutique marketing consultancy offers law firms experienced, energetic and business-savvy marketers who genuinely understand the needs of legal practice. For more information contact Sarah McGregor, sarah@themarketingloft.co.nz.

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Legal Information

LawTalk 881 · 12 February 2016

Lord Mansfield: Justice in the Age of Reason By Norman S Poser Reviewed by Peter Twist Norman S Poser, Professor Emeritus at Brooklyn Law School, has written the first full length biography in modern times of the life of William Murray, the first Earl of Mansfield (1705-1793), who sat as Lord Chief Justice of the Court of King’s Bench from 1756 until 1788. Many books on the lives of judges are dull, but Poser’s book is not one of them. Comprehensive and well-researched, his book is beautifully written with a rhythmic pace and racy style that brings to life one of eighteenth century England’s outstanding figures, not just in the legal profession but politically and socially. Following the preface, the book contains an excellent chronology with comparative dates of major historical events, events in Mansfield’s life, and his important legal decisions. The illustrations include portraits of Mansfield and other historical figures, as well as the portrait by Johan Zoffany of Mansfield’s grandnieces, Dido Elizabeth Belle1 and Lady Elizabeth Murray,2 which is famous for being the first known portrait to show both black and white subjects as equals.3 The first 180 pages in Part One (“Becoming Lord Mansfield”) are devoted to the background, skills and motivations of a man who was to become one of the western world’s preeminent legal thinkers, whose legal decisions are still respected and cited today.4 In Part Two (“Justice in the Age of Reason”) the book extensively discusses Lord Mansfield’s legal decisions under chapter headings, such as Slavery and the Somerset Case (Ch 17), Women and Marriage (Ch 20), and Religious Freedom (Ch 21); these legal decisions can be understood more clearly by the author’s earlier treatment of William Murray the man.

Taint of Jacobitism William Murray was the fourth son of David Murray, Viscount Stormont, born

at the Palace of Scone, near Perth, Scotland. Although William was a member of the Scottish aristocracy, his family was not wealthy and the Scottish nobles were not trusted by the English because of their support of the Stuart cause in the 1715 rebellion, after which William’s father and his brother David were fined and imprisoned. No one would have predicted that, when young Murray arrived in London in 1718 after having travelled alone by pony from Perthshire, he would one day rise to the position of Lord Chief Justice of the Court of King’s Bench. Murray attended Westminster School5 and Christ Church, Oxford, where he excelled in classics and became an eloquent speaker, though he never entirely lost his Scottish accent. Despite being the chosen educational institutions for the sons of the establishment, both Westminster and Christ Church were hotbeds of Jacobitism6 in early eighteenth century England, where toasts were drunk to the Old Pretender.7 We soon learn that Murray had a guilty secret: in 1725, while travelling in France as a 20-year-old, he wrote to his brother-in-law, John Hay, to offer his loyalty and services to the Old Pretender; he must have feared all his life that this correspondence would be discovered and he might be indicted for high treason, especially when, as Solicitor-General in 1745-1746, he assiduously prosecuted the rebel lords in the Jacobite rebellion for high treason, or when his arch-enemy William Pitt the Elder made innuendoes in Parliament that he secretly harboured Jacobite sympathies.

❝ This book is beautifully written with a rhythmic pace and racy style that brings to life one of eighteenth century England’s outstanding figures, not just in the legal profession but politically and socially

Rising lawyer and politician After obtaining his BA at Oxford University in 1727, Murray began studying

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law at Lincoln’s Inn, mainly by private study and observing court proceedings, since legal education was not formalised at the time, after which he was admitted in 1730. At first, business came slowly to Murray, but he soon began to build up a considerable practice arguing Scottish appeals in the House of Lords. After successfully representing the provost of Edinburgh before the bar of the House of Commons in order to defeat a harsh bill, his reputation as a gifted advocate was established and he began getting a flow of lucrative cases in the Court of Chancery. In 1738 he married Lady Elizabeth Finch, sister of the Earl of Winchilsea and granddaughter of the Earl of Nottingham, a former Lord Chancellor. Although Lady Betty was good looking, she was 34 at the time of her marriage, a year older than Murray, in an era when the average age of marriage by aristocratic noblewomen was under 25. Poser speculates that, despite having had other opportunities to marry, Lady Betty was willing to wait for an exceptional man like Murray, who was free of the common vices of eighteenth century noblemen: drunkenness, sexual promiscuity and gambling. Although the marriage was childless, it was a happy one and lasted 46 years until Lady Betty’s death in 1784. Murray held his intelligent and sociable wife in high esteem and must have recognised his good fortune in making such a choice. Although his marriage into the prominent Finch family would have assisted his entry into politics, the principal factor that launched Murray on his political career was his close relationship with the Duke of Newcastle, the leader of the Whig government in the House of Lords, who was chiefly responsible for Murray’s election to Parliament and his appointment as Solicitor-General in 1742. At the same time Murray took silk to become a King’s Counsel. Murray had been Newcastle’s private adviser and he continued to act as such after he entered Parliament. As Solicitor-General, Murray provided legal opinions to the government, drafted legislation, prosecuted major crimes, such as treason, and represented the government in law suits, all while he continued to conduct his own private practice of law. In Parliament, he still gave eloquent speeches

12 February 2016 · LawTalk 881

and debated with his rival, Pitt the Elder.8 In 1754, when Ryder was appointed the Lord Chief Justice of the Court of King’s Bench, Murray succeeded him as Attorney-General.

Lord Chief Justice After Ryder’s death, Murray was appointed Lord Chief Justice of the Court of King’s Bench in 1756 and raised to the peerage as Baron Mansfield. The canny Murray refused the appointment until King George III agreed to grant him a peerage. In 1776 he was created the Earl of Mansfield. Mansfield was a follower of John Locke and believed in political freedom, religious toleration, and economic individualism. One of his great achievements was assimilating mercantile custom into the common law whereby he constructed a settled system of principles and rules in commercial law that could be relied upon by merchants and lawyers. He also pioneered the development of the principle of unjust enrichment. Mansfield sought to limit the restrictions placed on Catholics and Protestant dissenters. On the other hand, his liberal leanings did not extend to freedom of the press and he went to great lengths to punish sedition. He also showed no clemency to forgers, whom he viewed as disruptive of commercial life, and he frequently prevailed upon the King not to commute death sentences handed out to them. During the American Revolution, Mansfield influenced Britain’s policy in the war by advising the King to be harsh on the American colonists, one of the few times his advice was erroneous. At the time, the doctrine of separation of powers had not developed to the extent it has today, and modern jurists will be astonished to see that an eighteenth century Chief Justice might sit in court in the morning, speak in Parliament in the afternoon, and advise the King on foreign policy in the evening.

Slavery Although Mansfield considered slavery odious, he was reluctant to make any decision on the status of slaves that might prejudice Britain’s commercial interests in the West Indies and the American colonies.

In the Somerset case9 a slave owner had abducted an escaped slave and held him onboard a ship awaiting transportation to Jamaica to be sold in the slave market there. Although Mansfield upheld a writ of habeas corpus preventing the slave owner from keeping Somerset in captivity and taking him out of the country against his will, Poser argues convincingly that Mansfield’s decision did not hold slavery to be illegal.10 Nevertheless, many people believed that Mansfield had put an end to slavery and the decision gave the abolitionists the impetus they needed to lobby Parliament to outlaw the slave trade in 1807 and eventually to abolish slavery altogether throughout the British Empire in 1834.

Gordon Riots In 1780 one of the worst disturbances in London’s history occurred, the week-long anti-Catholic Gordon riots. As a Catholic sympathiser, Mansfield was a target and his home in Bloomsbury Square was burned by rioters with the loss of most of his books and papers, which was an incalculable loss to history as well as his family. Two of the offenders were later hanged facing the shell that had been his home.

Later years After Mansfield’s wife died in 1784, his grandniece Dido, who had always lived at his country home Kenwood at Hampstead with him Continued on next page...

LawTalk 881 · 12 February 2016

L E G A L I N F O R M AT I O N , C O N T I N U E D . . . and Lady Betty, cared for him in his old age, as if he were her father. In 1786 Mansfield ceased to sit in court, but continued to act as Lord Chief Justice until 1788 when he resigned. Mansfield regarded Dido highly and she was a beneficiary in his will when he died in 1793.

Conclusion Not only is Poser’s book the definitive study of Mansfield’s life, but it is a looking glass into eighteenth century society and politics leading to an understanding of the development of our parliamentary democracy. It is hard to imagine that a better book on Mansfield could have been written. Lord Mansfield: Justice in the Age of Reason, McGill-Queen’s University Press, May 2014, 978-0-773541-83-2, 560 pages, £25.99. Peter Twist is an Auckland barrister who specialises in land law. He is a contributor to Hinde McMorland & Sim Land Law in New Zealand and Sim’s Court Practice. 1 Dido was the daughter of John Lindsay, Mansfield’s navalofficer nephew, and a West Indian slave. 2 Lady Elizabeth was the daughter of Viscount Stormont, Mansfield’s nephew. 3 For those who are interested, Mansfield’s fatherly relationship with his grandniece Dido is portrayed in the delightful 2013 film Belle, which stars Tom Wilkinson as Mansfield and Gugu Mbatha-Raw as Dido. Although Wilkinson gives a strongly believable performance as Mansfield, the film is fiction and the script is highly idealised, wrongly portraying Dido as influencing Mansfield on slavery issues in the Zong decision. 4 The United States Supreme Court has cited his decisions over 330 times. 5 In early eighteenth century England, Westminster School, not Eton College, was the preferred training ground of the élite. 6 The Jacobites were the supporters of deposed King James II and his descendants, who continued to claim the throne. 7 James Francis Edward Stuart, the son of James II, who claimed the thrones of England and Scotland after his deposed father died in 1701. The unsuccessful 1715 rebellion was raised in his name. His son, Charles Edward Stuart, the New Pretender, who is better known to posterity by the sobriquet “Bonnie Prince Charlie”, led the 1745 rebellion, which was defeated at the Battle of Culloden in 1746. 8 In 1748 he successfully defended the unpalatable Treaty of Aix-la-Chapelle made at the end of the War of the Austrian Succession on behalf of the government in the House of Commons. 9 Somerset v Stewart (1772) Lofft 1; 98 ER 499. 10 In the infamous case of the slave ship the Zong (reported in Gregson v Gilbert (1783) 3 Dougl 233; 99 ER 629), the ship owner had brought a lawsuit against its insurers for loss of cargo after it had thrown slaves overboard because they claimed that they had run out of water. Mansfield simply rejected the ship owners’ claim on the ground that it had not been necessary to throw the slaves overboard because it was possible that there was water available for the slaves.

Important information about CPD If you are new to the profession or you have some questions about your CPD declaration or your CPDPR (CPD Plan and Record) the following information may prove useful.

The essentials Do the CPD Rules apply to me? If you hold a practising certificate the Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education–Continuing Professional Development) Rules 2013 (CPD Rules) apply.

Are there exemptions? No. But in exceptional circumstances individuals may apply for a deferment.

The CPD year The CPD year runs from 1 April to 31 March.

When do I need to have a CPDPR (CPD Plan and Record)? A lawyer’s CPDPR (CPD Plan and Record) is a continuous running record of learning and does not have an end date. It needs to be maintained throughout any CPD period and updated regularly. It should be kept for three years.

When do I make my CPD declaration? Declarations of compliance with the CPD requirements can be done at any time – once you have met the requirements – but no later than within five working days of the end of the CPD year (31 March). Declarations are made online.

Can I carry forward hours from the previous CPD period? Yes. If you complete more than the minimum number of hours of activities during a CPD year then you can choose to carry forward up to five of those excess hours into the next year.

How do I make my CPD declaration? A declaration that you have complied with the CPD requirements is made electronically. The declaration is made using the log into Registry facility on the NZLS website.

12 February 2016 · LawTalk 881

Process

1. On the NZLS website, log into the Registry 2. Then enter your user ID (your 6 digit user ID – your practising certificate number) and password. 3. If you have forgotten your password, click the link at the base of the box as shown. You will be asked to enter your 6 digit user ID – as explained above. This new password will then be sent through to your registered email. 4. Once logged in, navigate to “CPD” in the left hand menu. 5. Select the box on the right which corresponds to the correct CPD year. Then click save. This will complete the declaration process.

The most frequently asked questions I have only held my practising certificate for part of the CPD year. Do I still need to complete 10 hours? For lawyers who have not provided regulated services for the full CPD year the hourly requirement is prorated. See Schedule 1 of the CPD Rules for how this may apply to you. This may also apply to lawyers who will be on maternity leave/parental leave/ extended sick leave/sabbatical leave for more than three months.

I hold a practising certificate but do not provide regulated services, what do I need to do? Your CPDPR needs to show that you are not providing regulated services and that no activities are therefore required. You will

also still need to make your CPD declaration of compliance at the end of each CPD year stating that you have complied with the CPD requirements.

I am practising overseas. Do the Rules apply to me? Yes. If you hold a New Zealand practising certificate the CPD Rules apply. However, if you are not practising New Zealand law you are not providing regulated services. See the frequently asked question above. For more frequently asked questions (and answers) and a comprehensive guide to CPD requirements see the “Quicklink” – Continuing Professional Development, on the homepage of the Law Society website.

LawTalk 881 · 12 February 2016

A trustee’s guide to litigation pitfalls By Kate Davenport QC and Lama Almoayed It is often a surprise for lawyers, who have cheerfully assumed the role of a trustee, to realise how easily they can be exposed to litigation risk. This is particularly true for those who accept the role as independent trustee for private clients.1 Marriages all too frequently crumble and the disgruntled children of earlier marriages can make life difficult for trustees. This article addresses some of the pitfalls which a prudent trustee should consider and (hopefully) avoid. Here are some things that you might like to consider before agreeing to become a trustee.

happen to the trust on separation? 5 Will they both agree to resign in these circumstances and allow the independent trustee to appoint someone else with him or her to administer the trust property for the benefit of the estranged couple and their children? All too frequently independent trustees of “family trusts” can end up taking the side of one spouse over the other. This should be avoided at all costs. If in doubt as to what to do, seek advice. Kate Davenport QC

What is in the trust deed? This might seem self-evident, however many trustees do not acquaint themselves with the terms of the trust.2 A common form of trust are those benefiting a large class of discretionary beneficiaries that give trustees wide powers. However, older trusts sometimes limit the powers of trustees, limit classes of beneficiaries, or prevent trustees from charging for their time or making decisions which benefit themselves (which is potentially tricky if a trustee is also a beneficiary).3 The lesson to be learned is: know the trust before you make any decision, in order to prevent problems cropping up later.

Know who you are dealing with and what pitfalls you might face It is very important that you understand exactly who the potential beneficiaries of the trust are. If the trust has a husband and wife as settlors, and the primary beneficiaries are the couple and their children, understand what their needs might be, ask what will happen in the (hopefully unlikely) event that the couple separate. Do they have a joint power of appointment? 4 What will happen if they cannot agree on what is to

Lama Almoayed

Consider the indemnity clauses and what protection they offer Many trustees now opt to become trustees through a trustee company, giving them protection from potential exposure to litigation, but a trustee should ensure that the indemnity extends not only to the trustee personally, but also the directors of any trustee company. Remember, an indemnity clause may not cover breach of trust.6 Understand what the debt positon of the trust is and your potential exposure. Can the trust service its debts? What indemnities have been given to previous trustees? Trustees should be aware of a recent decision that says that trustees (including former trustees) can caveat the title of trust property to protect their indemnity.7 Some trust deeds provide for a majority decision of trustees but this has potential risks too – in what circumstances is a majority decision not permissible? 8 For example, does

1 Often for a husband and wife, or for a surviving spouse where there are children from earlier marriages. 2 See too Trustee Act 1956, s 2(4) and (5). 3 The Court of Appeal in Clayton v Clayton [2015] 3 NZLR 293 note at [46] that it is well established that a person can be both settlor and trustee of a trust, and both trustee and a beneficiary of a trust. 4 This is a potential pitfall for solicitors when establishing trusts. In Kilkelly v Arthur Watson Savage Legal (HC, Invercargill, CIV-2006-425-148) (2007) and X v X [2007] NZFLR 502. 5 Buckeridge v Buckeridge, McKenzie and SHB Trustees Ltd [2015] NZHC 2231 [16 September 2015]; the Court made an order to remove Ms Buckeridge as trustee after she failed or refused to respond to any attempts by Mr Buckeridge to manage the Trust and deal with the Trust property. See also in Potter v Duffy [2015] NZHC 544.

6 The law as outlined in Armitrage v Nurse [1998] Ch 241 allows exemption clauses to be used to exempt a trustee for liability for a breach of trust as long as the trustee acts in good faith and in the honest belief that he or she is acting in the best interests of beneficiaries. See also AS Butler and DJ Flinn, What is the Least That We Can Expect of a Trustee? Exclusion of Trustee Duties and Exemption of Trustee Liability [2010] NZ L Rev 459. 7 See Official Assignee v Menzies [2011] BCL 195. Judge Bell accepted that an equitable lien, with its associated power to have the property the subject of the lien sold, came within the property and powers of the bankrupt under s 42 of the Insolvency Act 1967. This case and its reasoning has been criticised in some subsequent academic writing.

12 February 2016 · LawTalk 881

it cover sale of all trust assets? Check that any land owned is unencumbered or, if not, understand the extent of any mortgages secured over the land.

Has the trust been well managed? Family trusts which own property now require an IRD number. A prudent new trustee should ask to look at the accounts and understand the financial position of the trust. This can be particularly important when dealing with clients who have had more than one marriage and where there is likely to be competition for the financial resources of the trust between children of different marriages or a subsequent spouse and children of the previous marriage(s). It is important to ensure that the trust has up-to-date financial records and a trust minute book that records all resolutions and decisions made by the trustees (even the ones which are simple family husband and wife trusts).9 Beneficiaries can inspect these records but frequently only ask to do so when relationships with trustees are strained.

Duties of trustees As a trustee you have three immutable duties which you cannot escape: a duty to act in good faith, to act honestly, and to act in the best interest of the beneficiaries.10 Do not forget, however, that if you are a lawyer you have overriding professional obligations. For example, under the Financial Transactions Reporting Act 1996, trustees must report any unusual trust settlements or transactions. A professional trustee must also be aware of the customer due diligence (CDD) requirements under s 11(1) of the Anti-Money Laundering and Countering Finance of Terrorism Act 2009.11 Continued on next page...

❝ A prudent new trustee should ask to look at the accounts and understand the financial position of the trust 8 In Cadman v Visini (HC, Auckland, CIV-2009-404-007925, 30 May 2011), the Court held that a clause allowing majority decisions in the event of disputes or differences between trustees could not apply here, where one trustee was not aware of the matter and did not express differing views. 9 Westlaw NZ Online, Working with Trusts (Thomson Reuters, New Zealand) at 5.5 “Trustee Administrative Procedures”. 10 Armitrage v Nurse [1998] Ch 241. See also AS Butler and DJ Flinn, What is the Least That We Can Expect of a Trustee? Exclusion of Trustee Duties and Exemption of Trustee Liability [2010] NZ L Rev 459. 11 According to the Department of Internal Affairs, the key starting point is asking “does the professional trustee have authority to act on behalf of the customer, more than 25% ownership, or effective control?” If the answer to any of these questions is yes, there is a need to do CDD. Professional trustees may meet the beneficial ownership threshold as a result of their inclusion in the legal ownership of the customer. See at www.dia.govt.nz/diawebsite.nsf/ wpg_URL/Services-Anti-Money-Laundering-AMLCFT-News-andInformation.

LawTalk 881 · 12 February 2016

What does the settlor want? Ask the settlor(s) for a memorandum of wishes.12 Discuss with them the circumstances in which following their wishes might not be possible. If a memorandum of wishes is not to be followed, trustees need to make sure that they document the reasons for it.

You are expendable! Trustees often overlook the fact that if all the beneficiaries are legally competent and in agreement, or if there is only one beneficiary, then the beneficiaries may wind up the trust without reference to the wishes of the settlor or the trustees.

But you do matter! Trustees have an obligation to act personally and unanimously.13 They are accountable to the beneficiaries of the trust and required to account to them for the proper administration of the trust,14 This means that as trustee, you need to be more than a sleeping partner – you need to actually make decisions and participate in the trust’s administration. Don’t accept the word or assurances of the other trustees.

Litigation A trustee can become involved in litigation in two ways: either as the hapless bystander of a fight between two other trustees (often former spouses or de facto partners) in which the trust has become paralysed by the inability of the trustees to agree and application to the Court is necessary,15 or where the decisions of the trustees are challenged. In the first case, the trustee(s) might wish to apply to the Court for directions or interim orders, including removal of trustees. This way the trust may continue to function. The High Court has powers under the High Court Rules to preserve any trust property if this is a subject of concern in any High Court litigation.16

If in doubt – apply to the Court Trustees can seek directions from the Court under s 66(1) of the Trustee Act 1956 concerning any property subject to the trust or for directions in respect of the administration of the trust.17 Trustees can also apply to the Court under s 64 of the Trustee Act to authorise dealings with trust property and variations of trust.18

If your decisions are challenged: consider a Beddoe Application If trustees are in doubt about whether to defend or bring proceedings, they can make a Beddoe Application to the Court for directions.19 The trustees disclose all the strengths and weakness of their case,

❝ The Court may approve the trustees defending litigation brought against them or support them bringing proceedings themselves

12 Note that a letter of wishes that was signed by all the adult beneficiaries was held to have amended the terms of the trust and granted the wife part of the trust property in Re Turino Consolidated Ltd Retirement Trust [2008] JRC 100. 13 Unless the Trust gives the trustees the right of a majority decision. See Duncan v McDonald [1997] 3 NZLR 669 AT 679; Niak v Macdonald [2001] 3 NZLR 334 at [16]; Rodney Aero Club Inc v Moore [1998] 2 NZLR 192. 14 AS Butler and DJ Flinn, What is the Least That We Can Expect of a Trustee? Exclusion of Trustee Duties and Exemption of Trustee Liability [2010] NZ L Rev 459 at 465. 15 X v X [2007] NZFLR 502. 16 Judicature Act 1908, Schedule 2, HCR 7.55 “Preservation of Property”. 17 See Neagle v Rimmington [2002] 3 NZLR 826. 18 In Rocket Surgery Limited v Goodwin [2012] NZHC 2752 the Court held it was empowered by s 64 of the Trustee Act 1956 to authorise a range of dealings with trust property. Section 64 was held to have a broader purpose than s 64A and authorises a broader approach on the part of the Court. 19 Re Beddoe, Downes v Cottam [1893] 1 Ch 547; Woodward v Smith (2014) 3 NZLR 525 at [27].

often by providing counsel’s opinion. They lay the case in support of their actions before the Court and the material is read only by the Court. The Court may approve the trustees defending litigation brought against them or support them bringing proceedings themselves. The order will normally provide that the trustee may recover costs and expenses incurred from the trust itself.

What do we have to disclose? The documents that a trustee must give a beneficiary, and the documents that the beneficiary may obtain during the discovery process may differ. A beneficiary is entitled to receive information concerning the proper records of the trust, titles of the trust property, nature and content of their beneficial interest and accounts.20 Beneficiaries are not necessarily entitled to any other documents.21 In litigation, however, further documents may be ordered to be discovered. We have seen many cases where refusal to provide records has aroused suspicion in beneficiaries and led to proceedings being issued to remove the trustees. In

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12 February 2016 · LawTalk 881

our view, if at all possible, trustees should be open with the beneficiaries. By this we do not mean that you necessarily need to make the beneficiaries part of the decision-making process, but beneficiaries should be generally informed about the workings of the trust. Too much secrecy engenders distrust.

Some recent cases of interest to trustees The Supreme Court has heard the appeal in Clayton v Clayton and its decision is awaited.22 This decision should resolve issues relating to circumstances in which there can be an illusory trust, and whether there is a distinction between an illusory trust and a sham trust. The Court of Appeal in New Zealand Maori Council v Foulkes 23 highlighted the importance of accountability for trustees; a trust will only have to reimburse a trustee for any reasonable costs incurred.24 The Court also found that the power to appoint new trustees is of a fiduciary nature because the subject matter of the power is the office of the trustee, that office lies at the core of the trust and the office carries fundamental obligations to act in the best interests of the beneficiaries.25 As such, this power could not be delegated to a third party, must not be exercised for a collateral purpose, and it didn’t matter that the party exercising the power was not a trustee, it was the object and purpose of the power that was decisive.26 It’s also helpful to note the principles of interpretation that apply when the terms of a trust are unclear. This was discussed by the High Court in Re McCaw Lewis Trustees (No 4) Limited.27 The Court held that similar principles apply to the construction of trust deeds as apply to the construction of contracts.28 These principles were set out by the High Court in Bulley v Attorney-Generalm.29

In conclusion A trustee has significant obligations to beneficiaries. It is not a role that should be assumed without proper due diligence and a clear understanding of a trustee’s duties and responsibilities. Kate Davenport QC practices at Bankside Chambers in Auckland and has extensive experience at litigating issues arising out of trustee’s obligations and is a contributing editor to LexisNexis’ Law of Trust. Lama Almoayed is a junior barrister at Bankside Chambers.

20 The Court in Furness v Public Trustee [1921] 40 NZLR 898 at 901902 held that if the trustees fail to keep appropriate financial accounts, the Court will allow prime accounting records such as bank statements or books, cheque books, receipt books and other documents belonging to the trustee to be inspected. Armitrage v Nurse [1998] Ch 241; Foreman v Kingstone [2004] 1 NZLR 841 at [82]-[85]. 21 In Breakspear v Ackland [2008] EWHC 220 (Ch) the Court considered the question of whether beneficiaries of a discretionary trust have a right to see a letter of wishes. In this case the disclosure was ordered. The general principle is that beneficiaries are ordinarily entitled to see trust documents subject to the qualification that trustees are not required to disclose their reasons for exercising discretionary dispositive powers as the process is inherently confidential. In the circumstances, however, the trustees intended to seek the court’s sanction for a scheme of distribution of the trust fund, and the wish letter was a key document to be taken into account by the trustees and relevant to the court’s approval of the scheme. The risk of family division occasioned by disclosure was outweighed by the requirement to give the claimants a proper opportunity to address the Court on the question of sanction. The Court in Foreman v Kingstone [2004] 1 NZLR 841 stated that in New Zealand a fundamental duty of trustees was to account to the beneficiaries for the administration of the trust. Also, a court should always be mindful of the trustees’ fundamental duty to inform beneficiaries of their rights, which must carry with it the right for the beneficiaries to inspect documents of the trust from which their rights may be deduced. 22 Clayton v Clayton [2015] NZSC 84. 23 New Zealand Maori Council v Foulkes [2015] NZCA 552. 24 The Court finds, at [33], that the trust paying legal costs exceeding $2 million was unacceptable. It was wrong to expect a deserving beneficiary to bear the cost of unproductive litigation, when the parties should have acted in a responsible, cooperative and cost efficient manner. 25 At [22]. 26 At [22]. 27 Re McCaw Lewis Trustees (No 4) Limited [2014] NZHC 2627 at [19]. 28 At [19]. 29 Bulley v Attorney-General [2012] NZHC 615. For a more comprehensive list of references see “A Trustee’s Guide to Litigation Pitfalls” on www.bankside.co.nz/Publications.aspx.

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LawTalk 881 · 12 February 2016

Is the FMCA a watershed for offer due diligence? By Lloyd Kavanagh and Samantha Youjia Zhang Fund managers, and other continuous issuers are now currently in the process of transitioning to the new Financial Markets Conduct Act 2013 (FMCA) regime, which they must all do before 1 December 2016. This regulatory change provides a catalyst to consider whether due diligence processes for the PDS (product disclosure statement) and Disclose Register entry under the FMCA, should be the same as for prospectuses and investment statements under the old regime. As was the case in relation to prospectuses and investment statements under the Securities Act 1978, under the FMCA directors have a duty to ensure that the new PDS and Disclose Register entry do not contain any false or misleading statements or omit any material matters. However, the FMCA provides a fresh opportunity for directors to develop new approaches to due diligence which are tailored to fit their organisation and the particular issue to be offered. This is reflective of the government’s intent behind the FMCA which was to allow a regime which is: “flexible enough to allow a director to delegate the process for development of disclosure and verifying its completeness and accuracy to others, if it is reasonable to do so in the circumstances.” Generally, criminal liability only arises for directors of offerors that have issued defective disclosure in a PDS or Register entry, if the offer or continuing of the offer takes place with the director’s authority, permission or consent and the director knows that, or is reckless as to whether, there is defective disclosure. This contrasts with the Securities Act approach of strict liability with defences. In relation to civil liability, the FMCA provides for strict liability with a broader range of due diligence defences than the Securities Act for defective disclosure in a PDS or Disclose Register entry. In particular, the FMCA provides a new defence to directors who are deemed civilly liable for an issuer’s defective disclosure if they can prove that they took all reasonable and proper steps to ensure that the issuer complied with the relevant disclosure obligations.

Approaches to due diligence under the FMCA Under the reformed civil liability regime, the FMCA gives effect to the government intent by allowing at least two approaches to offer due diligence: ▪▪ The traditional, Securities Act style of due diligence where

Lloyd Kavanagh

Samantha Youjia Zhang

directors are heavily involved in the due diligence and verification process itself and personally review the contents of the offer documents. Under the Securities Act a series of decisions involving finance companies established that directors had the ultimate non-delegable duty to ensure that disclosure was accurate and adequate. ▪▪ The new FMCA infrastructure-based approach which involves directors designing and overseeing the due diligence and verification process, rather than their personal performance of it. Under this approach, directors must be able to show they have taken all reasonable and proper steps to ensure that the PDS and Disclose Register entry do not contain defective disclosure. The traditional style will likely continue to be appropriate for strategically important issues, for example an initial public offering or the raising of capital in a subordinated bond issue, where heavy personal involvement by the board would be expected, in any event, in accordance with good governance practice. However, for business as usual offerings by continuous issuers, the infrastructure-based approach may be a better fit with the legislation, and with the governance expectations as to the division between director and management responsibility. It is unlikely that the FMCA contemplates no director involvement in the due diligence and verification process at all. However, provided that directors continue to “exercise intelligent oversight of the company’s affairs” it may be possible to delegate the actual verification of the contents of the PDS and Disclose Register entry to others. That being said, the infrastructure-based approach is not due diligence-lite. It may actually be more demanding because of the requirement for a systematic approach and for smaller issuers the traditional process may be more straightforward. What remains important in all cases is that due diligence is designed to ensure investors receive the information they need to make investment decisions and that that information is reliable. It is important to emphasise that the two approaches outlined are not exhaustive of the ways directors and issuers may seek to comply with the FMCA. Ultimately, the appropriate level of director involvement in the process will depend on the particular circumstances of the offer and of the issuer.

12 February 2016 · LawTalk 881

In practice some issuers will likely adopt a hybrid approach.

Infrastructure-based approach An infrastructure-based approach is a new concept to offer due diligence in New Zealand. It has, however, been endorsed by courts as helping to establish a similar “reasonable and proper steps” defence to that in the FMCA in Australia under the Corporations Act 2001 (Cth) in Clarke (as trustee of the Clarke Family Trust) v Great Southern Finance Pty Ltd (Receivers and Managers Appointed) (in liq) [2014] VSC 516 and in New Zealand, in the context of financial reporting in Ministry of Economic Development v Feeney (2010) NZCLC 264,715 (DC). While the Financial Markets Authority has not yet issued any guidance on what an infrastructure-based approach may look like under the FMCA, issuers may look to other compliance frameworks such as Standard NZS/AS 3806 Compliance programmes. AS 3806 was originally created in 1998 following a request from the Australian Competition and Consumer Commission (ACCC) to assist with competition law

Key considerations The FMCA provides an opportunity for boards of directors to consider what the transition to the FMCA regime means in terms of their offer due diligence processes. Directors need to think carefully about their appropriate level of involvement in offer due diligence and verification under the FMCA. Some questions they need to ask themselves include: ▪▪ Is the offer a strategic, one-off event, or is it business as usual? ▪▪ Who in the business has material information about the offer and how will they be involved in the due diligence process? ▪▪ How do they exercise intelligent oversight over the process and ensure that it has been implemented correctly? ▪▪ How will the effectiveness of their process be tested and reported back to them? ▪▪ Will the process ensure that investors receive the information they need and that the information is reliable? Ultimately, directors must have a robust answer to the question “how do you know that the PDS and Disclose Register entry comply with the FMCA and FMC Regulations, and that they will continue to do so while the offer remains open?”

compliance. In 2006, it was revised and adopted in New Zealand and Australia in its current form. The NZS/AS 3806 standard is well respected and is referenced by numerous regulators including the FMA in relation to Qualifying Financial Entities Advisers, the Australian Securities and Investments Commission (ASIC) and the ACCC. Subsequently, NZ/AS3806 has been a model for the development of ISO 19600 Compliance management systems issued in 2014. Broadly, the NZS/AS 3806 approach is based on four key aspects of compliance being: commitment; implementation; monitoring and measuring; and continual improvement. Applying this to FMCA offer verification, this will likely to involve the board of directors at an oversight level: ▪▪ developing and implementing an effective due diligence planning memorandum that is appropriate for the issuer’s business and for the specific offer; ▪▪ taking reasonable precautions in the selection of the members of the due diligence committee – the roles of each member of the committee must be clearly articulated and the committee must have access to the board, all levels

❝ Directors need to have the mindset that the primary purpose of due diligence is to ensure that investors have all material matters accurately and effectively disclosed

of the organisation and expert advice; ▪▪ laying down an effective system of supervision of the due diligence process to ensure it is working as expected – this is to ensure that problems are identified and reported to the board (if necessary) and remedied; ▪▪ receiving and being satisfied with compliance reports from the due diligence committee setting out whether there are any issues with the final disclosure materials and whether in their view, it should be approved; and ▪▪ post-process review of the operation of the process (including the outcomes) to identify areas for improvement for future offerings. The issuer’s due diligence infrastructure will also need to be designed to ensure that the new Disclose Register is kept accurate and up to date. Under the FMCA, the Disclose Register will be the ultimate repository of all “material information” and continuous updating is expected not only during the initial offering, but for so long as financial products are outstanding. Directors must be careful not to take a formulaic approach to due diligence and verification. The compliance framework needs to be adapted to suit their particular organisation and circumstances. What is crucial is that the board must be satisfied that the processes which they have designed can reasonably be expected to ensure that there are no omissions or false or misleading statements in the PDS and Register entry. In other words, directors must be satisfied that the right people from their organisation are involved in the process so that all material information will be drawn out, verified and disclosed in a clear, concise and effective manner.

Conclusion In deciding what type of process to adopt and design, directors need to have the mindset that the primary purpose of due diligence is to ensure that investors have all material matters, accurately and effectively disclosed, to allow them to decide whether or not to invest in the particular offer. While a well designed and correctly implemented process will help directors and issuers establish a defence where there is defective disclosure, the best defence is getting it right in the first place. The authors’ analysis of the relevant law will be set out in greater length in an article to be published in the upcoming issue of New Zealand Business Law Quarterly (NZBLQ Volume 21 Number 3). Lloyd Kavanagh is a partner at Minter Ellison Rudd Watts and leads the financial services practice. Samantha Youjia Zhang is a solicitor in the banking and financial services team at Minter Ellison Rudd Watts.

CPD Calendar PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

Terri Mottershead

Attend this inaugural breakfast seminar to hear about: the shape of 21st century law firms, the new ‘normal’, the challenges that will face legal practice, the drivers for change, the impact of change on talent in law firms, the 21st century workforce and preparing your lawyers and staff for 21st century legal practice.

Christchurch

8 Mar

Wellington

9 Mar

Auckland

10 Mar

Andrew Beck Lisa Hansen

When running an appeal to the High Court you want to ensure you get the process right and avoid any pitfalls. This practically focused webinar will help you in achieving this.

Webinar

2 Mar

Andrew Barker Professor Geoﬀ McLay

The law of torts continues to evolve at a fast pace and it is important that you are up-to-date as possible. This practical seminar will focus on the most important recent decisions and what those cases mean for your clients’ cases, and how you can better argue those cases on their behalf.

Dunedin

12 Apr

Christchurch

13 Apr

Wellington

14 Apr

BREAKFAST THE FUTURE OF LAW FIRMS

1.5 CPD hours

CIVIL LITIGATION APPEALS TO THE HIGH COURT

1.5 CPD hours

TORTS UPDATE

3.5 CPD hours

Auckland

18 Apr

Webinar

14 Apr

Commercial lawyers face the constant challenge of keeping abreast of on-going significant reform and developments in core areas of their practice. This intensive is essential for all lawyers, in private practice, public sector and in-house, advising clients on commercial matters seeking to ensure their knowledge remains current.

Auckland

4 Apr

Wellington

6 Apr

Live Web Stream

6 Apr

Duty lawyers are critical to the smooth running of a District Court list. Here is a way to gain more of the knowledge and skills you need to join this important group. This workshop is made up of several parts.

Various

A practical two-day workshop covering the fundamentals of being an effective criminal lawyer. This workshop will benefit all practitioners wanting to be appointed to level one of the criminal legal aid list, and those recently appointed to level one.

Wellington Auckland

14-15 Apr

Nic Scampion Gillian Service

This webinar will consider what constitutes unlawful discrimination, how to prove it/defend it, the remedies that are available, and some procedural issues to navigate along the way. It will also look at recent case law from New Zealand and abroad, and consider the lessons to learn.

Webinar

8 Mar

Chair: Brent Stanaway

The new Health and Safety at Work Act is anticipated to come into force in early April 2016. It introduces fundamental changes including; duties being framed around a “person conducting a business or undertaking”, increased penalties and a tiered penalty regime, and imposition of a positive duty of due diligence on directors and those in senior management. This intensive, considers what the new landscape might look like and how to prepare for it, and focuses on being proactive rather than reactive.

Christchurch

21 Mar

Wellington

22 Mar

Auckland

23 Mar

Live Web Stream

22 Mar

Tribunals in the employment jurisdiction have, for some time, been expressly required to adhere to the principle of natural justice. This webinar will look at key developments in this area and the practical steps that you can take to help ensure that your clients comply with developing natural justice requirements.

Webinar

11 Apr

2 CPD hours

COMMERCIAL COMMERCIAL LAW INTENSIVE

Chair: John Horner

6.5 CPD hours

CRIMINAL DUTY LAWYER TRAINING PROGRAMME

Local Presenters

11* CPD hours

INTRODUCTION TO CRIMINAL LAW PRACTICE

Feb-Nov

*CPD hours may vary, see website Noel Sainsbury

13 CPD hours

7-8 Apr

EMPLOYMENT EMPLOYMENT AND DISCRIMINATION

1.5 CPD hours

HEALTH AND SAFETY IN EMPLOYMENT LAW INTENSIVE

6 CPD hours

NATURAL JUSTICE IN EMPLOYMENT

1 CPD hour

Andrew Scott-Howman

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz

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

PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

Catriona Doyle Hana Ellis Jo Leech

This workshop has been designed to ensure participants have the opportunity to develop the full range of skills, knowledge and attitudes required to carry out the role of Lawyer for Child effectively.

Wellington

Dr Allan Cooke Robert Bowe Hana Ellis

This seminar will discuss the practical implications of changes implemented by the Vulnerable Children Act and the CYPF (Vulnerable Children) Amendment Act, in respect of children and young persons subject to proceedings under the CYPF Act and the parents and caregivers of those children.

Dunedin

11 Apr

Christchurch

12 Apr

FAMILY LAWYER FOR CHILD

18.5 CPD hours

VULNERABLE CHILDREN – CYPF ACT UPDATE

3.5 CPD hours 2 CPD hours

16-18 Mar

Wellington

13 Apr

Hamilton

18 Apr

Auckland

19 Apr

Webinar

13 Apr

GENERAL NOT-FOR-PROFITS – CHANGING NEEDS

Mark von Dadelszen

2 CPD hours

This seminar will introduce what is proposed in a new Incorporated Societies Act, discuss the implications of new health and safety and vulnerable children legislation, and will include the key factors that you need to take into account when providing advice in this area of legal practice.

Christchurch

23 Feb

Wellington

24 Feb

Successful leadership is being the best person you can be in the service of the goals and aspirations of your organisation.

Auckland

25 Feb

Webinar

24 Feb

Webinar

29 Feb

1.5 CPD hours

PRACTICE & PROFESSIONAL SKILLS LEADERSHIP 101 – COMING TO GRIPS WITH LEADERSHIP

Lawrence Green

Leadership 101 – coming to grips with leadership, introduces you to the core elements of what a leader needs to know, and do, in order to make an effective contribution. This means: being clear, about who you are, and the type of leader you want to be; understanding how to make the most of your talents and abilities; and the art of influence.

1.5 CPD hours

MANAGING AND MAXIMISING RELATIONSHIPS AT WORK

Jonathan Robinson

6.5 CPD hours INFLUENTIAL PRESENTATIONS

Brenda Ratcliﬀ

3.5 CPD hours

STEPPING UP – FOUNDATION FOR PRACTISING ON OWN ACCOUNT

Director: Stuart Spicer

18.5 CPD hours TRIPLE YOUR MEMORY AND CONFIDENCE, AND HALVE YOUR STRESS

Jonathan Robinson

6.5 CPD hours TIME MASTERY FOR LAWYERS

6 CPD hours

Frank Sanitate

Want to empower others, create trust, solve problems quickly, have people cooperate, have them become selfmotivating? Then this workshop is for you. It will help you learn and practise key skills to get people “on side”; help you solve problems and reduce misunderstandings, handle difficult people and much more.

Christchurch

8 Mar

Wellington

10 Mar

Auckland

14 Mar

A workshop that will teach you how to influence others and learn techniques to: understand which visual tools to use to avoid disengaging or overwhelming your audience; structure your presentation to maintain a fully engaged audience; use confident body language to support key messages and handle questions with assurance and poise.

Christchurch

4 Apr

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.

Auckland 1

Learn faster, feel confident working in difficult situations, and overcome stress efficiently and effectively. This workshop, using the latest “inner technology”, guides you in powerful and practical ways to triple reading and memorisation ability, increase confidence and reduce stress.

Wellington

11 Mar

Auckland

15 Mar

This practical, skills-based workshop will help you to plan, prioritise, delegate and communicate. You will practise new ways of working to: eliminate time stress; achieve greater productivity; increase your billable hours without increasing your hours of work; and improve your work-life balance.

Auckland

21 Mar

Wellington

23 Mar

Christchurch

30 Mar

Wellington

5 Apr

Auckland

6 Apr

Christchurch

10-12 Mar 5-7 May

Auckland 2

7-9 Jul

Wellington

8-10 Sep

Auckland 3

17-19 Nov

More over page To contact us | Visit: www.lawyerseducation.co.nz Email: cle@lawyerseducation.co.nz | Phone: CLE information on 0800 333 111.

CPD Calendar PROGRAMME

PRESENTERS

CONTENT

WHERE

WHEN

David Littlefair

How do you keep a trust account in good order? This training is for new trust accounting staff, legal executives, legal secretaries and office managers.

Various

Chair: Cathy Quinn

This conference will promote effective strategies for cultural change to enable women into leadership roles, will consider the curly question of quotas, provide advice on financial planning and offer practical workshops on recognising and acquiring personal qualities that impact on your career.

Wellington

11 Apr

Auckland

12 Apr

Live Web Stream

11 Apr

David Littlefair Niamh McMahon David Murphy Simon Price

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

Auckland

20 Apr

Hamilton

13 Jul

Virginia Goldblatt; plus either David Patten; OR Geoﬀ Sharp

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

Auckland

Chair: Judge David Harvey

A great line up of sessions to look at the latest issues, developments and challenges in this fast paced and rapidly changing areas. Includes sessions on: Dark Side of the Internet, Cyber Security and the role of lawyers, Internet of Things (i.e. Apple Watch, Fit Bit), Tech contracts, BIG DATA and much more

Auckland

5 May

Wellington

6 May

Live Web Stream

6 May

Including hands on practice and feedback, this workshop examines different strategies and tactics, and offers tools for dealing with difficult negotiators, breaking impasses, and for addressing specific issues which you might wish to raise.

Auckland

This practically focused presentation will provide guidance for working with expert witnesses effectively. It will include consideration of, the need and importance of expert witnesses, key provisions of the Evidence Act, the overarching duty to assist the Court, and the consequences of non-compliance with the High Court rules and the code of conduct for expert witnesses.

Auckland

The effect of an increasingly digitized world is far reaching and is having a profound impact on the legal profession, and this includes clients’ wills. This presentation will touch upon some key developments in the estate planning arena and the online channel so you are in a better position to take advantage of current and future trends and opportunities.

Auckland

PRACTICE AND PROFESSIONAL SKILLS TRUST ACCOUNT ADMINISTRATOR

Mar

3.5 CPD hours

WOMEN IN THE LAW – CAREER BY DESIGN WORKING CONFERENCE

6 CPD hours TRUST ACCOUNT SUPERVISOR TRAINING PROGRAMME

7.5 CPD hours UNDERSTANDING MEDIATION – MEDIATION FOR LAWYERS PART A

14.5 CPD hours

CYBER LAW CONFERENCE

7 CPD hours

LAWYER AS NEGOTIATOR

Jane Chart

11.5 CPD hours

Wellington

15-17 Apr 28-30 Oct

10-11 May 24-25 May

IN SHORT - AUCKLAND EXPERT WITNESSES – A JUDICIAL PERSPECTIVE

Justice Paul Heath John Katz QC

2 CPD hours

ESTATE PLANNING – DIGITAL TECHNOLOGY

1.5 CPD hours

Lincoln Watson

23 Feb (full) 2nd session 29 Feb

17 Mar

For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz

Law Foundation

12 February 2016 · LawTalk 881

New projects tackling big issues By Lynda Hagen 2016 promises to be an exciting year for the New Zealand Law Foundation, with more new projects under way than ever before. We are currently backing 76 active projects, compared with around 50 in past years. This reflects the level of interest the Foundation is getting from legal and socio-legal researchers around New Zealand. Many of the valuable projects they are working on simply would not happen without our support. Listed below are some of the projects most recently approved by our board – they address some of the more challenging legal issues of our time, including surrogacy law, ACC appeals, and New Zealand’s response to the Islamic State threat. There’s no bigger issue for New Zealand than making our country as good as it could be, and one of our finest young legal scholars is taking on that massive subject, with support from the Foundation. Max Harris, described as one of the most brilliant and eloquent law graduates of the current generation, is aiming to stir up and shift debates on key issues that confront our society. His “New Zealand Project” will tackle topics including the future of biculturalism and the Treaty of Waitangi, the independence of New Zealand foreign policy, our “clean and green” credentials, and our criminal justice policy. Max, aged 27, is currently an Examination Fellow at All Souls College, Oxford, one of the world’s most competitive and prestigious academic awards. He has been a Rhodes Scholar, a Judges Clerk for the Chief Justice, an intern at the United Nations Development Programme and the American Civil Liberties Union in New York, a Rethinking Crime and Punishment Board member, and the author of articles in the New Statesman, the Huffington Post, and several law journals.

Rethinking surrogacy This three-year project aims to address an area of law that is becoming increasingly outdated in New Zealand and world-wide as social and scientific conditions change. Project team leader Dr Debra Wilson of

Canterbury University says it is widely acknowledged that current surrogacy law does not work, and forces judges to “creatively interpret” existing law. “It used to be that a child came from two people. Now there are potentially multiple people with a legal claim to being involved in bringing a child into the world,” she says. Dr Wilson is leading an eight-person multi-disciplinary research team. Interviews for the initial scoping phase of the project found that inadequate law was leading to parents’ relationships with their children not being legally recognised. Work has now started on phase two, also supported by the Foundation, which will examine the impacts of New Zealand’s surrogacy arrangements. Ultimately the project will produce options for law reform and a model surrogacy law.

Fairer ACC appeals Research made possible by the Law Foundation has helped change the course of government reform to the ACC appeals process. As a result, ACC claimant support group Acclaim Otago is now working co-operatively with the Government to develop practical ways for ACC appellants to get access to justice. Acclaim Otago’s initial report on the ACC appeals process, published last year, found major problems with the existing process, including the cost to claimants of preparing medical and legal evidence for appeals. The authors were concerned about a Government plan to replace access to courts with a new ACC appeals tribunal, arguing that the Government was required to consult on this. This prompted the Government to halt setting up the tribunal last June, with ACC Minister Nicky Kaye acknowledging that Acclaim Otago’s report had raised “genuine issues”. In December, the Government released a discussion paper seeking feedback on four options for the appeals process, including the status quo. It also commissioned an independent review by Miriam Dean QC of issues raised in the

Lynda Hagen

Acclaim Otago report. The Acclaim Otago team, led by Warren Forster, will produce a further report this year. “Having identified problems with access to justice, we now need to try to do something about it to improve people’s experiences,” he says.

NZ’s war against Islamic State Combating the Islamic State threat has involved balancing the risks posed by terrorism with the threat to civil liberties. A Waikato University study will examine how New Zealand has addressed this balance in its response to Islamic State “at home”. It will also study New Zealand’s contribution to the international coalition. The study authors, Professor Al Gillespie and Dr Claire Breen, will look into the risks, successes, shortcomings and options for this country in dealing with Islamic State. It will cover existing legal responses, New Zealand’s international civil liberties obligations, and the approaches of comparable countries such as the United Kingdom and Australia.

Feminist judgments This project involves writing alternative judgments, based on feminist theory, covering a range of legal issues. The project, Continued on next page...

LawTalk 881 · 12 February 2016

Lawyers Complaints Service Three charges dismissed The New Zealand Lawyers and Conveyancers Tribunal has dismissed three charges laid against Auckland lawyer Carole Smith ([2015] NZLCDT 40). Ms Smith faced three charges laid in the alternative: misconduct, or negligence, or unsatisfactory conduct. The charges alleged that Ms Smith had acted for a client and was involved in a breach of a High Court Charging Order by means of a share transfer. The Charging Order was made in enforcement proceedings arising out of a property relationship dispute. Ms Smith represented the husband in relation to commercial interests and various trusts, but did not act in the property relationship proceedings and was only kept informed of their progress to a limited extent. She was aware of the terms of the Charging Order, which charged the beneficial interests of the husband in various entities, set out in a schedule to the order. “Ms Smith, who was the lawyer acting

for the trusts, was perfectly well aware what beneficial interests were held by her client,” the Tribunal said. “She and her client formed the view that a new trustee ought to be appointed to protect the beneficiaries’ interests. A company was formed for the purpose of acting as new trustee and was appointed. “Trust law requires that the shares must be transferred to the new trustee, provided they were not the subject of the Charging Order.

No doubts “We accept Ms Smith’s evidence that she had no doubts that changing trustees was not affected by the Charging Order. “Since Ms Smith’s client was never the beneficial owner, nor even a discretionary beneficiary, and since the owner of the shares was not the debtor, the Charging Order could not apply to the assets which were transferred,” the Tribunal said. “No evidence was ever produced by the wife to challenge the view of ownership. There is still no evidence to contradict the husband’s assertions. Thus it would appear his and Ms Smith’s evidence is correct. “Certainly there was no information which would suggest Ms Smith was entitled

L AW F O U N D AT I O N , C O N T I N U E D . . . replicating similar projects in other countries, will show how feminist ideas can be implemented in legal practice. They will be a critique of common law method and show how different perspectives can affect the way the law delivers justice, dealing with unconscious bias in judicial decision-making. The project leaders, Dr Rhonda Powell of Canterbury Law School and Associate Professor Elisabeth McDonald of Victoria Law Faculty, aim for the alternative judgments to become teaching resources for law students, lawyers, the judiciary and the public.

One Judge, One Family Currently, most criminal charges and Family Court applications are dealt with by different judges, creating potential for

inconsistent case resolution. Zoe Lawton’s research project will explore redesigning the District, Youth and Family Courts so that a single judge is assigned to each family, regardless of the issue before the court. Ms Lawton says New Zealand has among the highest rates of intimate partner and family violence rates in the developed world. Her project will explore how a one judge/one family case management system may deliver better outcomes in family violence cases. Her research will include study in Israel, which has such a system. For more information on these and other projects, visit www.lawfoundation.org.nz. Lynda Hagen is the New Zealand Law Foundation Executive Director.

to ignore her client’s clear instructions as to the transaction.” There was “no element of subterfuge” in the transaction. Nor was Ms Smith “in cahoots” with her client to avoid responsibility. “The husband has waived privilege to inform the Tribunal that Ms Smith actually urged him to simply pay his wife. Indeed, he did so not long after these events. Thus, there was no negative outcome for the wife, who is the complainant in this matter.” The Tribunal noted that the onus was on the standards committee laying the charges to establish that there had been a breach of the order. “We do not consider the standards committee has discharged that onus since we are unable to see how Ms Smith can be said to have breached the order at all. “If we are wrong in this, we certainly do not consider this to be a deliberate breach, let alone a wilful or reckless one, which could reach the level of misconduct,” the Tribunal said.

Failure to refer client for independent advice Anthony (Tony) Bamford has been censured and fined $5,000 by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after he admitted failing to advise a client to seek independent advice upon becoming aware there was a conflict of interest. In [2015] NZLCDT 39, Mr Bamford admitted charges of unsatisfactory conduct. The charges arose out of Mr Bamford’s response to an error of one of his staff members, B, when B failed to complete the GST question in an agreement for sale and purchase. The Tribunal noted that B had already been dealt with by a lawyers standards committee. “As a result of the omission, the purchaser’s solicitor, surprisingly, completed the GST question which related to the vendor’s GST status (without drawing this to the attention of Mr Bamford’s firm or employee),” the Tribunal said.

Price reduction “Consequently, Mr Bamford’s client needed

to reduce the purchase price by a significant sum. “Mr Bamford’s firm became aware of this error on 18 February 2014 and settlement was scheduled for 7 March 2014. “The unsatisfactory conduct, which is admitted, is that Mr Bamford did not immediately upon becoming aware of a possible claim against his firm – therefore a conflict of interest – send his client away to obtain independent advice. “Rather, Mr Bamford and his employee focused on resolving the issue for the client. It was not until the client made it plain, on 5 March 2014, that he would be looking to the firm to recompense him for his loss, that Mr Bamford advised his client of the need for him to obtain independent advice. “The client declined the offer at this stage; he was anxious for settlement to proceed because the sale transaction supported a related purchase transaction. “The second charge, of a less serious nature, arose because Mr Bamford was dilatory in his subsequent response to the client’s complaint against the firm. He took two months to claim on his insurance, and rather than formally responding to the client in writing, telephoned him and then ‘went silent’ with the client while he awaited the insurance company response. “To complete the contextual matters, we accept that the negotiation between the lawyer, his insurer and the client achieved a settlement,” the Tribunal said. Rule 5.11 of the Lawyers and Conveyances Act (Lawyers: Conduct and Client Care) Rules 2008 mandates that once a lawyer becomes aware of a potential claim against him or her, a client must be advised to seek independent advice and also informed that a lawyer can no longer continue to act unless, having received independent advice, the client gives informed consent to that. “Mr Bamford has acknowledged, by his plea, that he let his client down in that regard.

Recognising conflict “We record that it is extremely important for a practitioner to recognise and clearly turn his or her mind to the consequences where a possible claim against a practitioner becomes apparent,” the Tribunal said. The Tribunal noted that Mr Bamford had been in practice for 26 years and until recently had an unblemished disciplinary history. However, between April 2014 and January 2015 he had sustained

Law Society Registry Comments concerning the suitability of any of the below-named applicants for the certificate or approval being sought should be made in writing to me by 18 February 2015. 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/lawsociety-registry/applications-for-approval. — Christine Schofield, Acting Registry Manager  christine.schofield@lawsociety.org.nz  04 463 2940  0800 22 30 30  04 463 2989

Admission Under Part 3 of the Lawyers and Conveyancers Act 2006 Bell Hayden John Faiaoga Lemaluotiafau Katelina (previously Ausage Tracy) Gill Akashdeep Singh Going Charleen Antoinette Hanley Troy William Henry Martha Holyoake Laura Emily Keatley Jamelle Ellen Monk Rochelle Dora Morgan Julia Rose O’Brien Genevieve Rose Sothieson Dhaxna Utama Tiffany Lynlie

three findings by a standards committee of unsatisfactory conduct. Among the mitigating factors, Mr Bamford had made significant changes to his practice, in particular engaging a senior lawyer to provide regular professional advice and assistance in the management of his practice. In relation to the offending itself “we accept that the practitioner was not motivated by self interest; and that he did, albeit belatedly, offer the client independent advice,” the Tribunal said. “In imposing a censure on Mr Bamford, this Tribunal is expressing on behalf of the public and the legal profession extreme dissatisfaction with your behaviour in failing

van de Water Coralie Elizabeth (also Hardy) White Charlotte Ellen Whitelock Natalie Jayne

Approval to Practise on Own Account Under s30 of the Lawyers and Conveyancers Act 2006 Boivin Christopher William David Donovan Amanda Jane Earl Nicholas John Epati Tiana Flay Brenda Janine Hill Amanda Lee Lott Susanne Merle Szentivanyi Elena Jane

to observe what should have been seen as a fundamental obligation to comply with practice rules. “This failure may be seen as an error of judgement but, if so, it is an error that deserves adverse criticism. A censure will remain always a part of your disciplinary record and will hopefully cause you to reflect on your failings and ensure that such failings do not occur again.” As well as the censure and fine, the Tribunal formalised the mentoring arrangement in place and ordered Mr Bamford to undertake regular advice for two years. It also ordered him to pay a $10,000 contribution towards the standards committee costs and $4,307 Tribunal costs.

LawTalk 881 · 12 February 2016

Wills

Coming up... Young lawyers’ symposium The International Bar Association’s Young Practitioner’s Symposium will be held in East Shanghai, China, on 3 March. This symposium is aimed at lawyers under the age of 40 (whether in-house or in private practice) and students who are interested in international arbitration. S e e w w w.i b a n e t .o rg /Co n fe re n ce s/ conferences_home.aspx.

International Arbitration Day The 19th Annual International Bar Association International Arbitration Day 2016 will be held in Shanghai from 3-4 March. S e e w w w.i b a n e t .o rg /Co n fe re n ce s/ conferences_home.aspx.

World Women Lawyers’ Conference The 7th World Women Lawyers’ Conference will be held in Berlin on 7 and 8 April. Organised by the International Bar Association, the conference theme is Law in a changing world – how women can contribute to innovation of the legal profession. S e e w w w.i b a n e t .o rg /Co n fe re n ce s/ conferences_home.aspx.

Litigation Forum The International Bar Association Annual Litigation Forum 2016 will be held in San Francisco from 27 to 29 April. S e e w w w.i b a n e t .o rg /Co n fe re n ce s/ conferences_home.aspx.

CAIRNS TRANSCRIPTION SERVICE Remote typist with over 20 years’ legal and medical experience available to undertake all your audio transcription requirements. $35 per hour. Call Amanda 027 634 2517 or email cairnstranscription@hotmail.com

Alterado, Jane Clarke, Jonathan Paul Cope, Clarence Joseph Daymond, Edmond Huirua Friis, Linda Jane Griffin, Noeline Janet Hardcastle, Matthew Joseph Hari-Haga, Tara Rohini rose Hietbrink, Harry Albertus Hogan, Seamus Davie Howe, John douglas William Hu, Xin Hua Hudson, Calum MacArthur Hussein, Rasheed Kerr, Damien Maurice Lorkin, Gladys Olive Parima, Tauta Rea, Francis harvey Dickson Serdoz, Elio Snowden, Donna marie Wang, Jiayi Weatherhead, Ronald Zettwitz, Margaret Therese

Jane Alterado

Noeline Janet Griffin Would any lawyer holding a will for the above named, late of Christchurch, born on 1 November 1947, please contact Rachelle Boulton, SB Law incorporating R A Fraser & Associates:  rachelle@sblaw.nz  03 374 6257  03 374 6258  PO Box 4369, Christchurch 8140

Matthew Joseph Hardcastle Would any lawyer holding a will for the above named, aka Matthew Jo Hardcastle, late of 6405 Madera Court, Lacey, Washington State, USA, who died in Washington State in October 2010 and who had property in New Zealand, please contact Richard Shand, Holland Beckett:  richard.shand@hobec.co.nz  07 578 2199  07 578 8055  Private Bag 12011, Tauranga 3143 DX HP40014

Tara Rohini Rose Hari-Jaga Would any lawyer holding a will for the above named, who died at Auckland on 3 January 2016 aged 73 years, please contact Sandi Anderson, Barrister and Solicitor:  sandi@sandianderson.co.nz  09 378 8668  09 378 1495  7 Redmond Street, Ponsonby, Auckland 1011

Harry Albertus Hietbrink

Would any lawyer holding a will for the above named, late of 9 Bristol Street, Upper Hutt, Engineering Records Officer, who died on 3 December 2015, please contact Main Street Legal Limited:  john@mainstreetlegal.co.nz  04 527 9727  045279723  PO Box 40 457, Upper Hutt 5018 DX RP44011

Would any lawyer holding a will for the above named, who died on 13 October 2015 at Paraparaumu, please contact Steven Lee, Barrister & Solicitor:  steven-lee@xtra.co.nz  04 298 9828  04 298 9818  PO Box 142, Paraparaumu 5254 DX RP60033

Jonathan Paul Clarke

Seamus Davie Hogan

Would any lawyer holding a will for the above named, late of 4 Glamorgan Drive, Torbay, Auckland, who died on 4 January 2016, please contact John Morton, Morton Tee & Co:  jmorton@mortontee.co.nz  09 486 1729  09 489 7117  PO Box 331133, Takapuna, Auckland 0740 DX BP66025

Clarence Joseph Cope

Would any lawyer holding a will for the above named, University Professor of Wellington, who died on 17 July 2015 aged 53 years, please contact Alex McPhail, Clark Boyce Lawyers:  alex@clarkboyce.co.nz  03 379 4420  03 379 9760  PO Box 79100, Christchurch 8446

John Douglas William Howe

Would any lawyer holding a will for the above named, late of Whangarei, born on 26 September 1955, who died on 24 July 2015, please contact Mathews Perry Lawyers:  cass@mplaw.co.nz  09 437 3070  09 437 2070  PO Box 8010, Kensington, Whangarei 0145

Would any lawyer holding a will for the above named, late of Auckland, born on 14 July 1961, who died on 25 November 2015 aged 54 years, please contact Cliff Lyon, C K Lyon Solicitors:  cliff@cklyon.co.nz  09 529 7305  09 529 7306  PO Box 128365, Remuera, Auckland 1541 DX CP33003

Linda Jane Friis

Xin Hua Hu

Would any lawyer holding a will for the above named, late of 107 Gordon Road, Rotorua, who died on 19 December 2015, please contact Roslyn Morshead, Morshead Law:  ros@morsheadlaw.co.nz  07 393 3133  07 282 2164  PO Box 2056, Rotorua 3040

Would any lawyer holding a will for the above named, born on 6 April 1949 in Guangdong, China, who died at Avondale, Auckland on 16 December 2015, please contact David Asbury, Vinci Law:  dasbury@vincilawyers.com  09 524 7800  09 524 7801  PO Box 26016, Epsom, Auckland 1344

12 February 2016 · LawTalk 881

Calum MacArthur Hudson

Donna Marie Snowden

Would anyone holding or having any record of having held a will for the above named, late of 305 Pine Hill Road, Liberton, Dunedin, Industrial Rigger, who died on 4 August 2015 aged 59 years, please contact Pamela Walker, Solicitor, Polson McMillan Lawyers:  pamela@polsonmcmillan.co.nz  03 477 2238  04 474 5588  PO Box 5547, Dunedin 9058

Would any lawyer holding a will for the above named, aka Donna Marie Edge, late of Whangarei, Teacher Aide, who died on 19 February 2015 at Mimiwhangata, Hikurangi, please contact Tarryn Andrews, Public Trust:  tarryn.andrews@publictrust.co.nz  09 983 5278  92 Bank St, Whangarei, 0110

Rasheed Hussein Would any lawyer holding a will for the above named, late of 2/75 Browns Road, Manurewa, Auckland, who died on 16 November 2015 aged 48 years, please contact PS Pabla (Jamie), Pabla Law:  jamie@pablalaw.co.nz  09 213 8858  09 261 2471  PO Box 76-484, Manukau City, Auckland 2241, DX EP75504

Damien Maurice Kerr Would anyone holding or having any record of having held a will for the above named, late of 3/50 Croydon Street, Sydenham, Christchurch, Motor Mechanic, who died on 4 June 2015 aged 32 years, please contact Pamela Walker, Solicitor, Polson McMillan Lawyers:  pamela@polsonmcmillan.co.nz  03 477 2238  04 474 5588  PO Box 5547, Dunedin 9058

Jiayi Wang Would any lawyer holding a will for the above named, late of Unit 4, 32 Eden Crescent, Auckland City, who died on 6 January 2016, please contact Donnelle Crobsy, PCW Law Limited:  crosby@pcwlaw.co.nz  021 771 267  09 535 5666  PO Box 28011, Remuera, Auckland 1541

Ronald Weatherhead Would any lawyer holding a will for the above named, last known address Kapiti Retirement Village, Lodge Drive, Paraparaumu, Retired Policeman, born on 24 March 1918, who died on 11 June 2008, please contact Sally Harrow, The Law Connection:  sally@lawconnect.co.nz  04 299 3192  04 299 7686  PO Box 2079, Raumati 5255, DX RP60303

Margaret Therese Zettwitz

Gladys Olive Lorkin Would any lawyer holding a will for the above named, late of Auckland, who died on 15 December 2015 aged 94 years, please contact John Spence, Davenports West Lawyers Limited Auckland:  j.spence@davenportswest.co.nz  09 836 4099  09 837 2671  PO Box 21-248, Henderson, Auckland 0650, DX DP92512

Would any lawyer holding a will for the above named, late of 126 Birkdale Road, Birkdale, Auckland, born on 3 August 1937, who died on 23 January 2016, please contact Robert Barnes, Solicitor:  09 418 0763  09 418 0332  PO Box 34 154, Birkenhead, Auckland 0746, DX BP65501

Tauta Parima Would any lawyer holding a will for the above named, who died at 7 Ingram Crescent, Otara, Auckland on 20 October 2015, please contact Maurice J Burney, Barrister and Solicitor:  maurice@mjblaw.co.nz  09 527 1311  09 527 1411  PO Box 14-663, Panmure, Auckland 1741, DX EP80506

Francis Harvey Dickson Rea Would any lawyer holding a will for the above named, late of Auckland, who died on 24 May 2014, please contact Bryce Williams, Gibson Sheat Lawyers:  bryce.williams@gibsonsheat.co.nz  04 916 6436  04 569 4874  PO Box 31 905, Lower Hutt 5040, DX RP42008

Elio Serdoz Would any lawyer holding a will for the above named, late of 24B Regina Street, Westmere, Auckland, who died on 24 December 2015 at Auckland, please contact Andrew Luxford, The Oaks Law Centre Limited:  apl@theoakslaw.co.nz  09 430 0207  09 430 0247  PO Box 200, Whangarei 0140

ROOM AVAILABLE Vulcan Building Chambers will shortly have a small room available to a barrister wishing to share facilities with six other barristers in a professional and supportive environment. The chambers are located on the top two levels of the historic Vulcan Buildings and enjoy a quality contemporary fit-out and sunny outdoor decks with views across the city. Facilities include: Website, boardroom, library, kitchen, shower, ultra fast broadband, high speed printing and photocopying. The chambers have a dedicated receptionist and a secretarial bay is available if required. Please email Jennie@vulcanbuilding.co.nz or phone 09 300 1253.

Litigation Solicitor We are looking for a solicitor with at least 2 years’ experience in healthcare law to join our small, but busy inner-city practice. Our speciality area is accident compensation litigation. There is opportunity for flexible hours/part-time work, and we are interested in hearing from any candidates with relevant experience. Please send expressions of interest/CVs to: fenella@medicolaw.co.nz

W E L L IN GTON L E G A L PR AC T IC E F OR S A L E An opportunity exists to purchase a well established legal practice in Wellington CBD. Sole practitioner wishes to retire and will negotiate transitional arrangements. Loyal customer base comprising small businesses and private individuals involved with property, business, family trusts, immigration, wills and estates. All enquiries to: Confidential Advertiser 16-1  advertising@lawsociety.org.nz  c/– NZ Law Society, PO Box 5041, Wellington 6145 DX SP20202

LawTalk 881 · 12 February 2016

VACANCY

CHIEF LEGAL COUNSEL NZ • Rare, senior legal leadership role • Career enhancing opportunity • Auckland based We have an outstanding opportunity for a talented senior lawyer to lead the in-house legal function of this significant infrastructure and engineering services business. With dual reporting lines to the Group General Counsel based in Australia and the New Zealand CFO, you will be responsible for the delivery of timely, accurate and commercially focused advice and legal services to the NZ business. As a trusted business advisor you will manage the provision of advice across a broad range of legal and commercial areas including significant tenders and contracts, joint ventures and alliances; while also managing disputes, litigation and regulatory issues and taking a key role in the formulation of commercial and legal strategies to ensure the business brand and reputation are protected. To be successful in this role you will have a minimum of 10 years’ legal experience preferably including a senior in-house role, with deep knowledge of contract law and experience in significant, complex transactions and negotiations. Experience gained in the construction, engineering or other infrastructure sectors, including energy and/or telecommunications, will be an advantage but is not essential. You will need a proactive, “hands on” approach with the ability to prioritise competing demands and manage a large volume of diverse matters. In addition, you will have superior negotiation, communication and influencing skills and the ability to interface on finance, operational and technical issues to ensure that optimal outcomes are achieved. Opportunities of this kind to lead a corporate legal function for an organisation of over 5,000 people are rare and highly sought after in the New Zealand market. The Chief Legal Counsel NZ role represents a first rate opportunity to gain career extending experience in a market leading business in an industry critical to New Zealand’s future. For a confidential discussion about this opportunity, please contact Jennifer Williams at Williams Legal Recruitment on 09 446 6050 or email jw@williamslegalrecruitment.co.nz

CROWN PROSECUTORS, HAMILTON The Crown Solicitor at Hamilton has vacancies for Senior and Intermediate Crown Prosecutors. The positions involve the conduct of jury trials in the High and District Courts together with attendances in relation to other aspects of the litigation practice conducted on behalf of the Crown and other clients. The Hamilton warrant covers the area from Northern Waikato to the King Country and includes the Coromandel Peninsula with the consequence that a significant volume of cases at all levels of seriousness are undertaken. The proximity of Hamilton to Raglan, the Coromandel Peninsula, the beaches of the Western Bay of Plenty and the central North Island ski fields allows for a significant range of outdoor pursuits while living in a large city which is still affordable. In each case the terms of employment will be negotiated to reflect the experience and ability of the successful applicant.

Applications accompanied by a CV should be addressed to: Almao Douch PO Box 19173, HAMILTON 3240 or email asm@almaodouch.co.nz (Attention: R G Douch)

Legal Counsel – Auckland based • Significant opportunity for a talented lawyer in a national and global context • Interested in contributing to a growing organisation which benefits all New Zealanders Our Business New Zealand Superannuation Fund is New Zealand’s sovereign wealth fund, and is in excess of NZ$28B. The Fund was set up by the Government in 2003 to increase savings, in order to help pay for the future cost of providing universal superannuation. The Guardians of New Zealand Superannuation is the Crown entity charged with managing and administering the Fund. It operates by investing initial Government contributions – and returns generated from these investments – in New Zealand and internationally, in order to grow the size of the Fund over the long term. More information can be found at www.nzsuperfund.co.nz. The Role You will work across the Fund providing general legal advice, with a particular emphasis on corporate transactions and supporting the Direct and Investment transaction teams. You will be part of a small, highly experienced in-house legal team and work closely alongside them as well as investment professionals and other team members. Key Skills and Experience • Between 6 – 10 years’ experience in a corporate law firm and/or inhouse. You will have worked in areas such as M&A, joint ventures and other general corporate advisory transactions. • Hardworking, flexible, highly competent and prepared to assist with a wide range of legal work. • Excellent judgement and commercial nous with exceptional communication skills. • Collegial, constructive approach, including the ability to foster both internal and external relationships. If you are interested in this role please forward your CV in confidence to Stephen Leavy at leavy@hobsonleavy.com Applications close 26 February 2016.

12 February 2016 · LawTalk 881

Property Lawyer (5+ years PQE)

Family Law – Junior Associate We are proud to have a very successful and growing Family Law practice at Simpson Grierson and we’re looking for someone at junior associate level to be part of that growth. The team works on a wide and interesting range of private client work including relationship property issues and disputes involving trusts and company interests, spousal maintenance and child support matters, care arrangements for children, adoption and surrogacy cases, domestic violence and harassment cases, cases involving elder health and welfare matters, and wills disputes. If you are passionate about tackling interesting and challenging issues, this could be the perfect role for you to grow your family law career. Please contact Jennifer Little for a confidential discussion at: Jennifer@jlrnz.com

Lower Hutt Gibson Sheat is a long established and well respected law firm that provides a broad range of legal services for their business and personal clients. We are looking for a stand-out Senior Property Lawyer who has experience in all aspects of Residential Property to join our Lower Hutt Property team. We’re looking for a highly motivated, energetic lawyer who has a track record of: • Autonomously handling most Residential Property matters. • Leading a successful team and/or developing and mentoring others. • Building their own client base, through their dedication to business development and providing excellent customer service. Experience in Trusts, Commercial Property and Relationship Property, would be an advantage. We offer: • An interesting and varied range of work with the opportunity to grow an existing practice. • A supportive and collegial environment and the opportunity to work alongside and help mentor a high achieving, highly motivated and fun team. • A competitive remuneration package and a wide range of staff benefits. • Career advancement opportunities for the right person. If this sounds like you, we’d love to hear from you

Please contact Jennifer Little for a confidential discussion at: Jennifer@jlrnz.com

Your legal search and recruitment partner 021 611 416 / www.jlrnz.com

Litigator – Commerce Compliance Group, 2-3 years’ PQE

Civil Litigator – Criminal Proceeds Recovery team, 2-4 years’ PQE

Auckland

Supporting two partners in the Commerce Compliance Group, this role involves assisting with a wide range of civil proceedings and regulatory prosecutions for Crown entities, which include the Commerce Commission, Maritime NZ, and the New Zealand Tranport Agency.

The Criminal Proceeds Recovery team restrains and forfeits assets funded by criminal activity and will see you act as a Crown Prosecutor in the District and High Courts.

This role promises to deliver real on your feet Court time and ‘hands on’ development of all litigation skills. The ideal lawyer will be working in a national litigation practice and will have a minimum of two years’ post qualification experience and an interest in competition law or fair trading law. Meredith Connell produces New Zealand’s finest litigators, offering work that is both that is both challenging and varied. The firm’s culture is modern, fun and hard working. Please contact Jennifer Little for a confidential discussion at: Jennifer@jlrnz.com

Your legal search and recruitment partner 021 611 416 / www.jlrnz.com

This complex and large-scale litigation involves significant Court work, which includes appearing in the High Court as Counsel and will include leading evidence and cross-examining. You will be liaising with specialist police officers and assisting in preparing civil proceedings brought by the Commissioner of Police under the Criminal Proceeds (Recovery) Act. In addition, you will also carry out criminal prosecution work under the Crown Solicitor’s warrant for Auckland, which involves appearances in the District Court and High Court. This role requires an extremely talented litigator who can think on their feet, is capable of working autonomously and who has acquired big firm litigation experience. In return, the successful lawyer will work within New Zealand’s largest litigation firm where they can access regular Court exposure. Please contact Jennifer Little for a confidential discussion at: Jennifer@jlrnz.com

Your legal search and recruitment partner 021 611 416 / www.jlrnz.com

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