LawNews - Issue 1 by The Law Association

NEWS Feb 4, 2022 Issue 1

Inside ■ CLIMATE

Our triple planetary crisis, plus Omicron P10

■ COMPETITION

A lender falls foul of our cartel provisions P11

Dissecting the Gardner-Hopkins adls.org.nz

PENALTY

Contents 03-04

‘Surprising and disappointing’: a lawyer and academic weighs in on the Gardner-Hopkins penalty decision

SEXUAL MISCONDUCT LEGAL PROFESSION SUSPENSION

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

05 TRUSTS LITIGATION COURTS

Why a settlor’s intentions are all-important

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

07-08 TREATMENT COMPULSION CONTRADICTIONS

12-13

How transformative is the govt’s latest reform of mental health law?

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CPD IN BRIEF

ADLS and REINZ unveil a new edition of the sale and purchase agreement

©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members. Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Cover: Peter Dazeley / Getty Images

Feb 4 2022 Issue 1

OPINION/SEXUAL MISCONDUCT/LEGAL PROFESSION

Under the microscope: the Gardner-Hopkins penalty decision If I were a member of the public, this decision would knock my confidence in the legal profession. If I were a new or aspiring lawyer, it would do little to reassure me the profession is a safe space

for how we view sexist violence in the profession. It is with surprise and disappointment, then, that the tribunal handed down a penalty of suspension rather than strike off. In my opinion, the penalty decision (National Standards Committee No. 1 v Gardner-Hopkins [2022] NZLCDT 2) got several things wrong.

‘Natural sympathy’ for Gardner-Hopkins Ana Lenard

In mid-January, the NZ Lawyers and Conveyancers Disciplinary Tribunal suspended former Russell McVeagh partner James Gardner-Hopkins from practice for two years for sexual misconduct. Although the tribunal’s liability decision promised a different kind of profession, the penalty decision confirms that the status quo prevails. Perpetrators of sexual misconduct won’t be properly held to account, meaning the profession remains a relatively safe space for sexual predators.

In December 2015, Gardner-Hopkins sexually assaulted four summer clerks and had inappropriate sexual relations with a fifth (National Standards Committee No. 1 v Gardner-Hopkins [2021] NZLCDT 21). As a result of the latter event, he was removed from the Russell McVeagh partnership in early 2016 with a ‘glowing’ sendoff to the bar. Four of the women complained to NZLS in 2018. The tribunal found the high threshold for misconduct under the Lawyers and Conveyancers Act 2006 was met. The tribunal noted the ‘laddish’ atmosphere of Gardner-Hopkins’ team and his ‘sexualised and objectified view of women’. The liability decision marked a shift in how we perceive sexist violence in the profession: the tribunal believed the victims; it condemned the actions of the perpetrator in harsh terms; it highlighted the damage caused to the women and bystanders; and it located the source of the violence as structural, arising from (although not in the tribunal’s terms) a patriarchal culture. The liability decision has done important work in setting the standard

significant consequence’ ‘a significant drop in income’ ‘significant reputational and emotional toll’ ‘has lost many professional associations, clients’ ‘almost entirely lost the collegial support of his profession’ These sound more like descriptions of the consequences faced by the women. One left New Zealand, one left the profession another changed her area of practice to avoid Gardner-Hopkins, and another felt her career had been adversely affected. Leaving Russell McVeagh meant no prospect of a lucrative partnership or, for the complainant who left the law entirely, no law partnership ever. Professional isolation also accurately describes the profoundly lonely experience of being a workplace sexual abuse/assault survivor. It is already very difficult being a lawyer – now imagine processing trauma in an environment where you are constantly reminded of it. Then imagine your trauma is playing out publicly in multi-year proceedings in which you must keep the memory of it alive to get justice. But these are not the words the tribunal used to describe the effects on the women. These were the words used to explain the effect of the events on Gardner-Hopkins.

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Ana Lenard

Background

■ ‘very significant consequences’ ■ ‘removal from a prestigious and lucrative partnership is a very

The tribunal had the option to order compensation for the victims. Instead, it chose to order payment of the committee’s and tribunal’s costs

Not mitigation Losing a ‘lucrative partnership’ to practise at the bar should not be a mitigating factor. The tribunal considered loss of a Russell McVeagh partnership and the associated drop in income to be mitigating factors as consequences ‘already incurred’. But practising at the bar carries the prestige of being an expert advocate, is a pool from which Queen’s Counsel and

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judges are drawn and often delivers easy six-figure earnings. Moreover, as the tribunal noted, ‘a man of his talents’ would be able to obtain ‘gainful employment’ outside of law. Why a side-step into an equally prestigious and lucrative part of the profession or the wider industry was considered a ‘consequence’ and therefore a mitigating factor is unclear. Gardner-Hopkins, even if struck off, would have access to the kind of work and income that many New Zealanders can only dream of.

Incorrect assessment of future risk The tribunal discussed changes made by Gardner-Hopkins and the future risk he poses as mitigating factors. But much of Gardner-Hopkins’ rehabilitation took place only because of the disciplinary proceedings. He apologised to the victims only during the penalty hearing. His own psychologist gave evidence that there was “considerable work to be done to address … deeper core psychological issues”. And he failed to work with a therapist between 2018-2020, including between the liability and penalty hearings. While rightly noting any changes had taken place under threat of strike off, the tribunal ultimately concluded he had taken positive steps to change, recording also there had been no further complaints about him since these events took place. I do not agree with this assessment. First, it is unclear how, having noted the risk of practising alone for a lawyer trying to learn good habits, the tribunal came to reference Gardner-Hopkins’ sole practice twice in discussing mitigating factors. Second, the tribunal described Gardner-Hopkins’ current life circumstances (a new partner and baby) as being a ‘protective factor’. But men of all personal circumstances – and sometimes especially the most family-oriented – commit sexual violence and abuse. Third, the tribunal accepted Gardner-Hopkins’ failure to face his conduct was unhelpful. It is difficult to understand, then, why it assessed any of the changes made by him as ‘positive’. Certainly he made changes, but the nature and timing of the steps taken indicates a man currently unwilling or unable to change. Finally, it was wrong to take into account the lack of further complaints following the Russell McVeagh events. Most victims do not complain. The process involves re-traumatisation and an inability to close a harrowing chapter of one’s life. No complaints simply means none have been lodged, not that there has been no conduct to complain of.

Unfortunate consistency considerations The tribunal accepted Gardner-Hopkins’ submission that the penalty should be less serious by comparison to two other cases of sexual misconduct. It seems this was primarily driven by the short timeframe in which the misconduct took place and the fact that it was ‘shorter 04

The failure to reference the financial costs borne by the victims, such as therapy and legal advice, would certainly make future complainants reconsider whether a multi-year process of retraumatisation is worth it

in duration’ in respect of each victim. But even very brief episodes of sexual misconduct can (and did, in this instance) cause lifelong consequences. That misconduct is brief does not necessarily make it less serious.

Suspension won’t help much The list of behavioural concerns the tribunal highlighted for the Practice Approval Committee that will manage Gardner-Hopkins’ re-entry into the profession has a glaring omission: a sexist worldview. It covers alcohol, boundaries, mentorship and personal support. But, people can drink, have poor boundaries, have no mentors and fail to get support and still not sexually abuse and assault women. Targeting these four behavioural concerns alone will not cure the danger Gardner-Hopkins poses to junior women. Moreover, there were no conditions recommended to prevent him from working with junior women either during his suspension or after. We should not be leaving the protection of junior women in the hands of someone who has already harmed them.

No compensation The tribunal had the option to order compensation for the victims. Instead, it chose to order payment of the committee’s and tribunal’s costs. The failure to reference the financial costs borne by the victims (such as therapy and legal advice) would certainly make future complainants reconsider whether a multiyear process of re-traumatisation is worth it.

Conclusion In my opinion, Gardner-Hopkins should have been struck off. He is not currently fit and proper. If he is able to rehabilitate himself in the coming years, he can apply for re-admission. Two years is too short a time to achieve rehabilitation for someone who is a mature adult and who has only recently begun (grudgingly) to comprehend the gravity of his actions. If I were a member of the public, this decision would knock my confidence in the legal profession. If I were a new or aspiring lawyer, it would do little to reassure me the profession is a safe space. The tribunal’s penalty decision misunderstands the severe life-long consequences of sexual assault and abuse, the source of the practitioner’s behaviour and the nature and extent of the rehabilitation required. And the decision ultimately communicates that technically competent but integrity-challenged lawyers are above the law (while other equally technically competent lawyers who comply with the law, usually women, languish beneath them). In the absence of real consequences for those who abuse and harass their colleagues, little if anything will change in our profession. But, there is hope if the standards committee, with the agreement of the women, decides to appeal. ■ Ana Lenard is a dispute resolution lawyer and legal academic. The opinions are her own and do not necessarily reflect those of ADLS. ■

Feb 4 2022 Issue 1

TRUST LAW

The thorny issue of a settlor’s intentions Anthony Grant

Litigants seeking orders from the courts without providing the court with adequate evidence of a settlor’s intentions are at risk of having their applications adjourned while evidence is obtained of the settlor’s intentions

A requirement that a trust must be administered ‘in accordance with its objectives’ will necessarily involve Trusts are not created in a vacuum. learning about the settlor’s intentions They’re created for specific purposes for the trust. and trustees ought, in general, to In a conventional discretionary try to fulfil those purposes. They trust, this is usually done by looking at should therefore learn of the settlor’s a written Memorandum of Guidance/ intentions for managing a trust’s assets Wishes that the settlor has prepared. and how its income and capital are Anthony Grant If there have been several Memoranda intended to be distributed. of Wishes, a trustee should consider A few days before Christmas, the them all. In the Kain case there were 37 Memoranda of Court of Appeal released a decision in the longWishes. running Kain/Hutton litigation (Kain & Others v Public A statutory instruction that trustees and the courts Trust & Others [2021] NZCA 685 16 December 2021). must ‘have regard to the objectives of a trust’ does not One of the subjects of the appeal involved the extent confine the court to a consideration of a Memorandum to which a trustee “is entitled to take into account the of Wishes. There will be many trusts in respect of wishes and subsequent wishes of [a] settlor”. which there are no such memoranda. There will also The Court of Appeal held that a trustee is entitled be many trusts where the Memoranda of Wishes have to take into account the original wishes and the become outdated and no longer provide an accurate subsequent wishes of a settlor to the extent that statement of a settlor’s objectives for a trust. the wishes are not inconsistent with the terms and purposes of the trust that the settlor created. Changing objectives In reaching this conclusion, the court referred to s 45(h) of the Trusts Act 2019 which provides that a If I am correct in saying a settlor’s objectives for a trustee “must keep, as far as is reasonable, any letter trust can change from time to time (and this was or Memorandum of Wishes from the settlor”. This inherent in the Court of Appeal’s decision in the statutory instruction indicates that trustees should recent Kain case), then trustees and the courts should learn about a settlor’s intentions for the trust that he/ obviously try to learn what the settlor’s objectives are she has created. Oddly, the court did not refer to a in the changed circumstances. much more significant provision of the Trusts Act – There is good law that a settlor’s intentions can be learned from what he/she has said orally and from s 4(a) – although it may be that none of the counsel what he or she has written in documents other than in that case referred the court to this provision. formal Memoranda of Wishes. While a settlor is alive, Section 4(a) says: the trustees will ordinarily want to speak with him/her “Every person or court performing a function or to learn what he/she would like the trustees to do in duty... must have regard to the following principles: the new circumstances. … Section 4(a) will create difficulties for courts. In A trust should be administered in a way that is light of Parliament’s instruction that ‘every court must consistent with its ... objectives.”

have regard to a trust’s objectives’, what is a court to do if no evidence is given of a settlor’s intentions in the circumstances that exist at the time of a hearing? Is the Court to make inquiries of its own? Or is it to ask a plaintiff/applicant to do so? If it asks a plaintiff to make the necessary investigation, the court may not get the right information since the interests of a plaintiff may differ fundamentally from the interests of a settlor and any information a plaintiff gives to the court may be unreliable. If s 4(a) requires a court to learn what a settlor’s intentions are in the circumstances that prevail, the court may need to make its own inquiries.

Civil law regime Section 4(a) creates obligations that are binding on all trustees and on all courts. The section creates a regime of the type that I understand exists with the civil law regimes in Europe where the courts are empowered to initiate their own inquiries and are not confined to the evidence provided by partisan advocates. There are bound to be teething problems with the new regime until the extent of the obligations that are imposed on both litigants and the courts are clarified in future decisions. In the meantime, litigants seeking orders from the courts without providing the court with adequate evidence of a settlor’s intentions are at risk of having their applications adjourned while evidence is obtained of the settlor’s intentions. And judges who make orders without adequate evidence of a settlor’s intentions are at risk of having their orders set aside. ■ Anthony Grant is an Auckland barrister specialising in trusts and estates ■ 05

PROPERTY LAW/ADLS WEBFORMS

New version of sale and purchase agreement released

Photo: Fiona Goodall / Stringer / Getty Images

After months of work, ADLS and REINZ will on 8 February release the 11th edition of the Agreement for Sale and Purchase of Real Estate to the legal profession and the real estate industry. What started life as an exercise to add a clause to the 10th edition (2) for the new Purchase Price Allocation regime under the Income Tax Act 2007 has turned into a new edition. New editions of the auction and tender versions will follow in the next month or so. Yesterday, ADLS held a webinar on key aspects of the new edition, presented by barrister Tim Jones and the lead drafter of the edition, Hamilton lawyer Thomas Gibbons.

The webinar covered: ■ the reformatting of the form; ■ changes to the use of bank cheques; ■ addition of conveyancing practitioners, included in the definition of ‘party’s lawyer’; the purchase price allocation clauses; a new set of covid-19 clauses; new signing provisions; an amended limitation of liability clause; and revision of the claim for compensation clauses that have become increasingly used by parties. For those unable to attend, the webinar will be available from ADLS CPD on demand, please click here. Webinar attendees received the presenters’ papers, a sample copy of the

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11th edition and a copy of the PPA clauses now retained as an addendum to the agreement rather than being a standard term. The auction and tender versions of the 11th edition are in the pipeline and will be released by ADLS and REINZ simultaneously when they are uploaded to the respective organisations’ platforms. In the case of ADLS, this is WebForms. Thanks to the revision subcommittee, our lead drafter Thomas Gibbons, the ADLS team and all those who contributed points for revision and review of the prior editions. This is a live document and there will be further revision of the 11th edition as and when legislation, court cases or conveyancing practice dictate. ■

Have your say on proposed changes to the Lawyers and Conveyancers Act The New Zealand Law Society is consulting on proposed amendments to the Lawyers and Conveyancers Act 2006. Its goals are to improve the transparency and efficiency of the lawyers’ complaints process and to resolve the longstanding issue of undertakings by a conveyancing practitioner. The potential changes relate to four key amendments to the Act, which would: ■ maintain public confidence in the complaints process; ■ free up resources to focus on the right complaints; ■ ensure technical complaints with no merit do not impact resources; and ■ ensure conveyancer undertakings are enforcable. NZLS is seeking feedback to ensure the amendments are workable and that any issues are identified at an early stage. Consultation on the proposed amendments 06

will open shortly and will close on 13 February 2022. You can provide feedback via the survey. These amendments would enable the law society to operate in a more transparent and efficient manner for both consumers and the legal profession until broader legislative change can be considered as part of the Independent Review of the statutory framework for legal services in Aotearoa New Zealand. These proposed changes would also complement updates to the Rules of Conduct and Client Care that came into force on 1 July 2021. More detail is available in the consultation document: Consultation on changes to the Lawyers and Conveyancers Act 2006. ■

Feb 4 2022 Issue 1

MENTAL HEALTH LAW/ADLS CPD EVENT

Mental health reform: tinkering or transformation? There seems to be an inherent contradiction in attempting to make an administrative machine run more smoothly while protecting the rights of individuals whose lives are affected by it Patricia Scriven

The government did not wait for the completion of research and public consultation which would have better informed its decisions on the Amendment Act

Recent amendments to the Mental Health (Compulsory Assessment and Treatment) Act 1992 raise some major questions. Among them: will the amendments improve the protection of individual rights and the effective application of the Act? And has the government’s piecemeal approach introduced practical complications into the health and legal systems, and raised complex philosophical issues which may prove difficult to resolve? The Mental Health (Compulsory Assessment and Treatment) Amendment Bill was introduced by Justice Minister Andrew Little on 17 March 2021 and was enacted unamended as the Mental Health (Compulsory Assessment and Treatment) Amendment Act 2021 (the Amendment Act), receiving royal assent on 29 October 2021. The intention of the amendments was two-fold. The first was to address criticism of Aotearoa New Zealand’s mental health legislation. New Zealand ratified the United Nations Convention on the Rights of Persons with Disabilities (Disability Convention) in 2008 but has been criticised for not implementing practical measures to protect those rights, particularly in the matter of indefinite treatment orders. The second intent of the amendments was to enable ‘more effective application’ of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MH Act). I suggest these two goals make uneasy bedfellows, particularly in a time of considerable social upheaval and when emergency public health measures have been evoked. There seems to be an inherent contradiction in attempting to make an administrative machine run more smoothly while protecting the rights of individuals whose lives are affected by it. Certainly, the amendment process was not the principled review envisaged by the Government Enquiry into Mental Health and Addiction in its report, He Ara Oranga (Pathways to Wellness) published in November 2018. This report recommended the repeal

and replacement of the Act “so that it reflects a human rightsbased approach, promotes supported decision-making, aligns with the recovery and wellbeing model of mental health and provides measures to minimise compulsory or coercive treatment”. Submissions from the ADLS Mental Health and Disability Law committee were also ignored. These recommended deferring amendments until after the proposed full review of the MH Act. The committee also recommended that changes to the law should be made as part of a full review of capacity legislation, including mental health. Other individuals and organisations also expressed misgivings. Principal Family Court Judge Jacquelyn Moran noted in her submissions on the bill to the Health Select Committee that the new provisions would strain an already struggling court system and might not therefore have the desired effect: There is already huge pressure on our judicial resource with backlogs in most areas of our work. Any transition period will, by necessity, require the allocation of additional judicial resource to mental health hearings and this will in turn, lead to further delay in other areas. The extent of the impact will vary from region to region with the Metropolitan centres being most severely impacted. Chief Ombudsman Peter Boshier, in his submissions, pointed out the fundamental need to review the underlying principles on which the Act is based: I consider that aspects of the Act are discordant with contemporary thinking about mental health and human rights. I believe it incorporates a medical model approach to mental health and disability, which in turn enables the use of compulsion … This contrasts with the Disability Convention which incorporates a social model and rights-based approach in its consideration of mental health and disability. However, the government did not wait for the completion of research and public consultation which would have better informed its decisions on the Amendment Act. For example, it chose to press ahead with legislation before the outcome of a full review of the law involving adult decision-making capacity. This was launched late last year by Te Aka Matua o te Ture | Law Commission. Its terms of reference specifically include mental health legislation.

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In addition, the Ministry of Health announced a public consultation process on 22 October 2021 purporting to accept the recommendation to repeal and replace the Act. This closed on 28 January 2022, an impossibly tight timeframe for full public consultation. To complete matters further, the statutory amendments were separated into two parts: those which came into effect on royal assent on 30 October 2021 and other provisions (in six sections) which will come into effect on or before 30 October 2023. Practitioners in this area of law take note!

Provisions in effect from 30 October 2021 These have administrative efficiency at their core. They authorise permanently that which previously had to be renewed every three months under emergency covid-19 health orders. ■ The use of audio or audio-visual technology (AVL) so family members can be present at assessment examinations of proposed compulsory patients where their physical presence is ‘not reasonably practicable’. ■ Protocols for using force when special patients are being transported. ■ An expansion of the powers of examination and assessment to include registered nurses practising in mental health. Previously only more highly qualified nurse practitioners were included in this role. ■ The permanent use of AVL by clinicians, mental health practitioners or psychiatrists to exercise powers under the Act to access persons, if it is ‘not practicable’ for the person to be physically present and the use of an AVL link is appropriate. My concern is that in making permanent practices which were made necessary during covid health emergency, the processes in the MH Act will become dehumanised.

Provisions coming into effect on 30 October 2023 or before by Order in Council The amendments listed below are a response to criticism of the existing mechanism for making compulsory treatment orders indefinite. It has been argued that they were a breach of an individual’s fundamental right to choose the medical treatment he/she receives, including treatment for

psychiatric conditions. ■ Indefinite compulsory treatment orders will be replaced with a judicially monitored further extension for a one-year period. ■ A District Court judge may use AVL to examine a patient when community treatment orders are to be extended if the patient consents to its use (new s 34C). ■ A judge may determine that all or any participants may appear at a hearing by AVL if the patient consents, subject to a requirement to consider the potential impact of the use of the technology on the effective maintenance of the rights of the person to be heard and call evidence under s 20. ■ The court may dispense with examination of a patient and formal hearing if the patient has provided written consent on the advice of a solicitor (s 34D inserted into the MH Act). As soon as the latter provision comes into effect, it will introduce a practical challenge for practitioners in the field. Advice pursuant to this section must be given by a solicitor, defined in s 6 of the Lawyers and Conveyancers Act 2006. Most lawyers approved by legal aid to represent mental health clients hold practising certificates as barristers sole and would not therefore be eligible to provide the requisite advice. This provision also raises the much larger question of the capacity of a client to consent to a waiver of due process. In the matter of human rights, the amendments appear to give with one hand and take with the other and suggest to me that the hoped-for expansion of human rights is unlikely to be fulfilled. As always, the devil is in the detail. It seems likely that there will be considerable bureaucratic confusion until the health system, legal aid and the courts catch up with changes to the MH Act which will require more staff, more paperwork and possibly more intervention from higher courts to define aspects of the new law. The implications of enacted and proposed changes to the MH Act will be addressed in an ADLS seminar on 10 February 2022 with a panel with psychiatric, legal and judicial expertise as well as input from the district inspectorate. This is an important opportunity for the profession to get to grips with the coming changes. ■ Patricia Scriven is an Auckland lawyer with lengthy experience in mental health practice and a member of the ADLS Mental Health and Disability Law committee ■

NOW PUBLISHED

The Law of Criminal Investigation in New Zealand Author Christopher Corns The Law of Criminal Investigation in New Zealand offers a comprehensive and detailed analysis of the laws framing and regulating criminal investigations. The book is designed to meet the needs of the busy practitioner or criminal investigator who needs to find a particular case, statutory provision or principle easily and quickly. It contains up-todate statutory provisions and recent decisions of the Supreme Court and Court of Appeal. As Chief Justice Dame Helen Winkelmann puts it in the foreward: “With

this text, Christopher Corns makes a unique and valuable contribution to the literature on criminal procedure in New Zealand. It is a comprehensive text.” Price for ADLS members $135.00 plus GST* Price $150.00 plus GST* To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: thestore@adls.org.nz * + Postage and Packaging

Feb 4 2022 Issue 1

Briefs Justice retires US judge Stephen Breyer announced his retirement after 28 years on the Supreme Court. Justice Breyer, aged 83, is regarded as the dean of the court’s minority liberal base and will leave at the end of the court’s current term. President Joe Biden will move quickly to name his replacement as the Democrats are likely to lose control of the Senate in the mid-term elections later this year. During last year’s presidential campaign, Biden pledged to nominate a black woman if he were in a position to appoint a new Supreme Court judge. The front-runner is Ketanji Brown Jackson, a judge on the circuit court of appeals in the District of Columbia. The Economist describes Justice Breyer as “a stalwart but pragmatic liberal who believed judges should look beyond the law’s text to its purpose and consequences”. Biden’s new appointee will mean there are still twice as many conservatives as liberals on the court. As The Economist puts it: “Abortion rights are likely to be restricted, gun rights bolstered and affirmative action’s days are over.”

Labour squeeze American CEOs say staff shortages will be the greatest threats to their businesses in 2022, according to a recent survey by the Conference Board. On 28 January, the US Labor Department reported companies Thanks largely had spent 4% more on wages and to bonuses, benefits in the fourth quarter of 2021, year-on-year – the biggest rise in compensation 20 years. There were 10.6 million job for lawyers at openings in November, a 50% rise on America’s top 50 the January 2020 figures. All up, a law firms rose record 4.5m workers quit their jobs in 16.5%, according November. The Wall St Journal says firms and to a survey by recruiters are having to devise consultants new ways to attract staff, with bonuses being among the most Citigroup & popular measures. Thanks largely to Hildebrand bonuses, compensation for lawyers at America’s top 50 law firms rose 16.5%, according to a survey by consultants Citigroup & Hildebrandt. In addition, firms are investing more in automation, modifying job descriptions and offering more onthe-job training. The latest New Zealand labour figures, released on Wednesday, reveal unemployment for the December quarter, 3.2%, is at its lowest level since modern records began in 1986. ■

From left to right – Simon Ladd, Desley Horton and Andrew Peat

Shortland Chambers is pleased to announce that Simon Ladd, Desley Horton and Andrew Peat have joined Chambers. We wish them well in their careers at the Bar. Simon Ladd Simon joins the bar after more than 25 years in private practice, including 13 years as a partner at Bell Gully. Simon is a commercial and regulatory litigator with a broad practice, specialising in competition law, banking and financial markets investigations, insurance claims, and construction disputes. He is an experienced advocate and mediation counsel.

Desley Horton Desley joins Shortland Chambers from Wilmer Cutler Pickering Hale and Dorr LLP in London, where she worked in the firm’s international litigation and arbitration team. Prior to that, Desley completed her Masters in Law at Stanford University and was a member of Russell McVeagh’s litigation team in Auckland. Desley practises in commercial and civil litigation and has particular experience in contract, company and trusts disputes.

Andrew Peat Andrew is welcomed back to the independent bar and Chambers following a period in private practice. Andrew acts in a wide variety of civil cases, with particular interest and experience in property law and related fields. Andrew spent a number of years as a junior barrister at Shortland Chambers and, prior to that, practiced at one of New Zealand’s leading commercial law firms. Andrew also has a Masters in Law (Hons, First) from Trinity College, Dublin

shortlandchambers.co.nz 09

CLIMATE CHANGE

planetary crisis’ NZ faces this year

Nathan Cooper As New Zealand’s government deals with a looming Omicron outbreak, this won’t be the only major issue it will have to tackle in 2022. This year will be important for environmental and climate action. Several key developments are expected throughout the year, both in New Zealand and internationally, focusing on climate change and biodiversity – and how these crises overlap with the impacts of the covid-19 pandemic. In February and early April, the Intergovernmental Panel on Climate Change (IPCC) will publish the next two parts of its sixth assessment (AR6). These reports will provide the basis for global negotiations at the next climate summit scheduled to be held in Egypt later this year. The February report will focus on impacts and adaptation and the April report on mitigation of climate change. Together, they will assess the global and regional impacts of climate change on natural ecosystems and on human societies, as well as opportunities to cut emissions. They will identify points of particular vulnerability, consider the practicalities of technological innovations and weigh the costs and trade-offs of low-carbon opportunities. Both reports will present a definitive statement of where impacts of climate change are being felt and what governments and other decision makers can do about it. 10

New Zealand is not immune from this global crisis. About one third of our species are listed as threatened

Multiple crises Climate change tends to dominate headlines about the environment. But biodiversity loss and accelerating rates of species extinction pose an equal threat to our economies, livelihoods and quality of life. A UN Global Assessment Report on biodiversity and ecosystem services predicts the loss of one million species during the coming decades. It foresees serious consequences for our food, water, health and social security. New Zealand is not immune from this global crisis. About one third of our species are listed as threatened. In April, the UN Biodiversity Conference in Kunming, China, will launch a new global biodiversity

framework to guide conservation and sustainable management of ecosystems until 2030. Expect to see intense negotiations on the current draft framework as states try to balance the need to address the underlying causes of biodiversity loss, without endangering economic priorities, including post-covid recovery.

Cutting emissions In May, the government is expected to release its first emissions reduction plan (ERP), in response to the Climate Change Commission’s advice on how New Zealand can meet its domestic and international targets. The plan will set out policies and strategies to keep the country within its

emissions budget for 2022-25 and on track to meet future budgets. Under the Climate Change Response Act 2002, the government is required to set emissions budgets for every three to four-year period between 2022 and 2050 and to publish emissions reduction plans for each. The first plan looks likely to come at a difficult time for the economy. Businesses have already contended with covid-related lockdowns and uncertainty and may soon be challenged by staffing shortages in the wake of the Omicron outbreak. It will be tricky to balance the need for significant action to reduce emissions while keeping business and the wider community on board. Expect a wide-ranging plan with sector-specific strategies for transport, energy, industry, agriculture, waste and forestry, but little detail on agriculture.

First summit In 1972, the UN Conference on the Human Environment took place in Stockholm, Sweden. It was the first international conference to make the environment a major issue. Fifty years on, in June this year, Stockholm +50 will mark a halfcentury of global environmental action, and refocus world leaders’ attention on the ‘triple planetary crisis’ of climate, biodiversity and pollution. The aim is to accelerate progress on the UN’s sustainable development

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Photo: Logan Campbell / Getty Images

The ‘triple

Fifty years on, in June this year, Stockholm +50 will mark a half-century of global environmental action, and refocus world leaders’ attention on the ‘triple planetary crisis’ of climate, biodiversity and pollution

Feb 4 2022 Issue 1

COMPETITION LAW

How a lender fell foul of our cartel law Businesses use Google Ads to direct traffic to their websites when potential customers search for relevant topics, including searches for the names of competing businesses

Jenny Stevens

The outcome

Jenny Stevens, Sam Hiebendaal & Molly Anning In December 2021, the High Court found that a consumer finance company breached the Commerce Act 1986 through cartel conduct in relation to the acquisition of online advertising (Commerce Commission v Moola.co.nz Ltd [2021] NZHC 3423). The company threatened other lenders with legal action if they did not stop certain online advertising practices and had also agreed to stop some of its own practices. The case highlights the risks of communications between competitors even where those communications do not directly involve core business, and even when they relate to disputed legal rights. It also illustrates that the prohibition of cartel conduct in the Act is wider than the stereotypical case of agreements about the prices for which competitors will sell their goods or services: the prohibition can extend to the acquisition of services.

Background The case involved Google Ads, an online advertising platform which allows businesses to place advertisements in Google search results. The advertisements are triggered when someone uses particular keywords in their Google searches. Businesses use Google Ads to direct traffic to their websites when potential customers search for relevant topics, including searches for the names of competing businesses. A consumer finance company, Moola, sent a series of letters through its lawyers to other lenders who had placed advertisements that would be triggered by keywords or phrases relevant to Moola, including ‘Moola’ itself. The letters alleged these bids infringed Moola’s intellectual

property and breached the Fair Trading Act 1986. Moola sought confirmation that the other lenders would stop placing such bids and also use Moola as a ‘negative keyword’ so their advertisements would not show when a person searched for Moola. Several lenders complied with Moola’s requests – in one case, after Moola filed a claim in the High Court against it. Moola itself refrained from using keywords and phrases relevant to some of the other lenders and negatively matched relevant keywords, so Moola’s advertisements would not show when those keywords were used in searches.

Sam Hiebendaal

Molly Anning

In July 2021, following an investigation, the Commerce Commission filed proceedings against Moola, alleging it had breached the prohibition against cartel conduct in the Commerce Act 1986 by sending the letters and giving effect to the arrangements Moola proposed in them. Among other things, the Commerce Act prohibits contracts, arrangements and understandings that have the purpose, effect, or likely effect of fixing prices or restricting the acquisition of services by businesses that are in competition with one another. In this case, Moola admitted it had breached the Act by restricting the acquisition or likely acquisition of Google Ad services by itself and the other lenders, and by having the effect or likely effect of controlling or maintaining the price of Google Ad services. In December 2021, the court made declarations to that effect. The court explained that Google Ad pricing is determined through an auction process. Businesses place maximum bids on specific keywords or phrases that are relevant to them and which might be used in Google searches. When a person uses Google to search for that keyword or phrase, an advertisement for the business will be displayed if that business was the highest bidder and if the Google algorithm determines its advertisement is relevant. However, the business is charged for the advertisement only if a person clicks on it. The price is then calculated as the minimum amount necessary to beat the next highest bidder (up to their maximum bid).

Continued on page 15 11

FEATURED CPD

Mental health law kōrero INCAPACITY MENTAL HEALTH CONSENT

Livestream 2 CPD hrs Thursday 10 February 4pm – 6.15pm Presenters Rosemary Thomson; Alison Douglass; Dr Mark Fisher and Guyon Foley Chair Judge Philip Recordon

Our mental health legislation is undergoing a review, yet a recent amendment act that will have significant implications in practice passed recently with little fanfare. What are the current issues facing clients and those trying to assist them? Will (in)capacity to consent to treatment be a criterion of the future Mental Health Act?

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2021 Resident visa and other immigration changes IMMIGRATION VISAS POLICY

Livestream 2 CPD hrs Wednesday 16 February, 4pm – 6pm Presenters Pooja Sundar, partner, D&S Law and Lauren Qiu, principal, Stay Legal Chair Stewart Dalley, partner, D&S Law

The immigration landscape is constantly evolving. Add covid-19, lockdowns and border restrictions into the mix and you get a recipe for unprecedented change to immigration policy. Most notable is the introduction of the 2021 one-off resident visa. This seminar will reflect on the first group of resident visa applications and provide insights into the practical workings of the visa, lessons learnt, and emerging trends and guidance.

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Outlook for lawyers 2022 EMAIL FUNCTIONS PRODUCTIVITY

Webinar 1 CPD hr Thursday 17 February 12pm – 1pm Presenter Carlene O’Meagher, senior customer success manager, LawVu

Discover how to use Microsoft Outlook to best effect. This session will cover Outlook functions and shortcuts to overcome email deluge, stay focused, and gain productivity. You will learn about email phishing and security, and see Outlook’s role in conjunction with other communication platforms including Microsoft Teams and Slack.

LIVESTREAM 12

Feb 4 2022 Issue 1

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‘Court’ by forensics

Workshop 4 CPD hrs Saturday 19 February 9am – 1.15pm Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd

HANDS-ON INSIGHTS CLARITY

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Forensics never goes away. Every contact leaves a trace. This workshop will take you behind the scenes as a crime scene investigator, giving you a greater understanding of what type of evidence is preserved from the scene and used effectively in court, the importance of the chain of evidence and an insight into how to deal with expert forensic witnesses. Spaces strictly limited (and Red level restrictions will be adhered to).

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Class and funded litigation NAVIGATE PROFESSIONAL OBLIGATIONS

Livestream 2 CPD hrs Wednesday 23 February 4pm – 6.15pm Presenters Paul Collins, barrister, Shortland Chambers; Philip Skelton QC, Bankside Chambers; Angela Parlane, managing director, Shine Lawyers NZ and Jonathan Woodhams, executive director, LPF Group Ltd

FPA and TPA claims: an update CLAIMENTS COMPLEXITY TRENDS

The rapid growth in class and funded litigation has exposed a range of professional responsibility issues and challenges not encountered in regular litigation. The Conduct and Client Care Rules do not always fit neatly with the professional challenges lawyers face in this area. This seminar is intended to help lawyers navigate this difficult and potentially perilous field, identifying and avoiding professional issues before they become a problem.

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Live Stream 2 CPD hrs Thursday 24 February 4pm – 6.15pm Presenters Bill Patterson, partner, Patterson Hopkins and Greg Kelly, principal, Greg Kelly Law Limited Chair Brian Carter, barrister, Bastion Chambers

Claims under the Family Protection Act 1955 and Law Reform (Testamentary Promises) Act 1949 are commonplace. They can also be complex, with some involving multiple claimants and/or defendants and both Acts. Focussing on topical issues, emerging trends and key case law, this seminar will provide a valuable update for those working in this area of practice.

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CPD IN BRIEF

Drafting contracts in a digital world

Livestream 1.5 CPD hrs Tuesday 1 March 4pm – 5.30pm Presenters Arran Hunt, partner, Stace Hammond and Edwin Lim, partner, Hudson Gavin Martin

Drafting contracts that take into account technology matters might not be front-of-mind but getting it wrong can have serious implications. With application to various areas of practice, this seminar will cover key terminology, boilerplate clauses, privacy and more.

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Living with the Residential Tenancies Act

Webinar 1.5 CPD hrs Thursday 3 March 12pm - 1.30pm Presenters Des Wood, barrister and Nathan Tetzlaff, associate, Smith & Partners

The Residential Tenancies Act has had numerous amendments in recent years. The most recent amendment features some significant changes. Are you ready to advise a landlord or tenant? This session will be of interest to all lawyers and legal executives practising in Property law, and general practitioners. Property managers, letting agents and real estate agents might benefit from attending.

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Property law half-day conference 2022

Modern slavery and responsible supply chains

In Person | Livestream 4 CPD hrs Thursday 10 March 12.30pm – 5pm Presenters Mark Hopkinson; Helen Johnson; Louis McLennan; Joanna Pidgeon; Andrea Watson; Sarah Blackmore; Paul Cogswell and Mark Robinson

This conference will offer practically focused sessions on a range of property law topics presented by experts in their fields. It will be valuable to all those practising in the area of property law.

Livestream 1 CPD hr Tuesday 15 March 4pm – 5pm Presenters Rebekah Armstrong, director, Business and Human Rights Consultants and head of advocacy and justice for World Vision and Nicola Swan, partner, Chapman Tripp

This seminar discusses the existing and emerging legal and ethical requirements around engaging suppliers and vendors, and the resulting impact on businesses. It outlines some practical steps businesses can take to minimise modern slavery-related risk in their supply chains and operations.

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The Deportation Process – A Practical Guide for Lawyers Wednesday 16 March | Seminar | 2 CPD hours Visit adls.org.nz for more information.

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Feb 4 2022 Issue 1

Continued from page 10

Decade of action

goals, the Paris Agreement and the global biodiversity framework, while making sure countries’ covid-19 recovery plans don’t jeopardise these. Expect growing demand for more global recognition of a “human right to a healthy environment” to leverage more effective environmental action. On the domestic front, the national adaptation plan (NAP) is due in August. This will set out how the government should respond to the most significant climate change risks facing Aotearoa New Zealand. These risks range from financial systems to the built environment and have already been identified in the first national climate change risk assessment. Public consultation will take place in April and May.

The UN’s annual climate summit, COP27, will take place in Sharm el-Sheikh, Egypt, in November. Last year, COP26 drew unparalleled public attention and generated some positive new climate pledges. One major success was an agreement that nations revisit and strengthen their nationally determined contributions by the end of 2022. But the summit was generally criticised for failing to secure commitments from high-emitting countries to keep global temperatures from climbing beyond 1.50C. The overarching aim to ‘keep 1.50C alive’ will be more urgent than ever. A particular concern is how effectively civil society will be able to bring pressure to bear on governments. Protests and activities are likely to be significantly limited by the Egyptian host government.

Continued from page 11 Key takeaways The case highlights the potential competition law risks inherent in communications with competitors, even where those communications do not directly relate to core business and even where a business may consider its actions are justified by its legal rights (here, asserted intellectual property rights). The breaches of the Act in this case had nothing to do with any financial services provided by any of the lenders; they related to the acquisition of advertising for those services and arose out of arrangements entered into to resolve a dispute about intellectual property and other rights said to have been infringed. The case also illustrates that the prohibition on cartel conduct is not limited to the stereotypical cartel where competitors get together and agree on the prices they will charge for the goods or services they are selling. Moola was found to have breached the Act in relation to services that it was acquiring from Google, not

The case highlights the risks of communications between competitors even where they do not directly involve core business

In the build-up to COP27, expect significant pressure on big polluter states to deliver more ambitious commitments to cut emissions, but also less flamboyant and free protests in Egypt. The UN has called 2020-2030 the ‘decade of action’. The chance remains to avoid runaway climate change, protect biodiversity and stabilise our ecosystems. It’s imperative that this year, the third of this decade, is one that really counts. ■ Nathan Cooper is an associate law professor at the University of Waikato ■ The above was originally published in The Conversation and is republished with permission

services it was selling. Finally, it is interesting to note that the commission sought only a declaration that Moola had breached the Act. Moola was not ordered to pay a financial penalty or even the commission’s legal costs. The court noted there were several relevant mitigating factors. Moola did not deliberately seek to breach the Act, was legally advised when sending the letters, co-operated with the commission and admitted liability at ‘the earliest possible stage’. By contrast, more serious cases involving intentional cartel conduct can result in criminal liability for companies and individuals. People can be imprisoned for up to seven years or ordered to pay a fine of up to $500,000. Companies can be liable to pay a fine not exceeding the greater of $10 million, three times the value of any commercial gain or 10% of the group’s annual turnover in New Zealand. ■ Jenny Stevens is a partner, Sam Hiebendaal is a senior associate and Molly Anning is a lawyer at Bell Gully ■

Photo: Michael King / EyeEm / Getty Images

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Do you want to make a difference as a lawyer? Do you want to work in a supportive community setting? Auckland Disability Law (ADL) has an exciting opportunity for you in our Solicitor role. This role delivers disability-related legal services and activities including: • Provides casework services to Disabled and Deaf People • Undertakes legal education work • Contributes to ADL’s law reform programme and legal information projects. This is a permanent full-time position. Applications close Wednesday 2 March 2022. For the job description contact recruitment@adl.org.nz

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Solicitor Role in Community Law

After more than 20 years at Keegan Alexander, Sean McAnally has commenced practice at the separate bar with FortyEight Shortland Barristers. Sean accepts instructions in most areas of commercial litigation and in particular company and shareholder matters, insolvency, trusts and property and contractual disputes. T: 027 489 1235 or E:sean@seanmcanally.co.nz

SOLICITOR – LITIGATION We are a boutique firm specialising in unit titles advice and dispute resolution looking for a junior solicitor to work in our litigation team. The role is primarily debt collection but with scope to expand to other areas. Please apply to Price Baker Berridge by email to zbinns@pbb.co.nz for the attention of Clinton Baker.

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Expressions of Interest Junior Barristers 2023

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Shortland Chambers invites applications for Junior Barrister positions commencing in February 2023. This is a fantastic opportunity to work alongside some of New Zealand’s top barristers.

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For more information, or to apply, please email avanwyk@shortlandchambers.co.nz.

We are looking for applicants with 1-4 years’ PQE and a strong academic record. The maximum period for which the role can be held is 3 years.

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Feb 4 2022 Issue 1

UNIQUE CHARACTER OFFICE An entire floor in a well-established, and centrally located and truly unique character building, is now available. Comprising 12 offices and meeting rooms (approx. 340 sq) this space would suit a small to medium legal practice. All enquiries to: Advertiser@adls.org.nz Ref: ‘floorspace’

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Rural Law Series: Demisting the Environmental Fog Thursday 17 March | 12.00pm - 1.00pm This webinar will benefit practitioners to demystify and digest the wave so you can navigate and advise safely and with best practice.

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Senior Lawyer

FOR SALE Law practice + Freehold property

We are looking for a Senior Lawyer with a minimum of 5 years’ PQE to join our team. This role is to take over the workload of a Director who is retiring. This is a great opportunity for an ambitious and dynamic person with a sound understanding of Trusts, Property and Business. The ability to supervise Estate work undertaken by another team member would be beneficial.

Rarely does an opportunity such as this come along. A wellestablished, successful law practice plus a freehold title is offered for sale in South Auckland.

Key attributes required for this role: • Have experience in dealing with clients and able to manage your own files with minimum supervision. • Relate well to clients and referrers. • Have good time management, interpersonal skills, attention to detail and operate in a collaborative team environment. • Be able to work in a Paperlite office and manage an electronic file using Infinity Software.

Working primarily in conveyancing, estates and relationship property, but with scope to expand, this well-established suburban practice provides a unique opportunity for either a sole practitioner, or perhaps 2 lawyers to establish their futures. Currently operating as a sole practice, with support, this centrally located business offers a home and income proposition and an excellent property investment.

We offer: • An innovative firm with a great team environment. • An opportunity to be part of one of the Eastern Suburbs’ largest legal practices. • Market salary, team monthly and annual bonus schemes. • Excellent established precedents, systems and technology. • Free parking and iPhone. • The excellent training, conferences and benefits that are available to members of NZ LAW legal firms.

The accompanying freehold property contains two separate dwellings, one a dedicated office the other residential. The current principal is willing to remain with the new owner(s) for an agreed period to ensure a seamless transition.

Please email your resume and covering letter to our Practice Manager, Brandon Tam brandont@dglaw.co.nz or Director, Kelly McCullough kellym@dglaw.co.nz.

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Personal Effectiveness Workshop 2022 (Online) Thursday 3 March | 9.00am - 1.15pm Reflecting on your goals for this year? Are you performing at your peak? Is there room for improvement in your work methods? Returning for 2022, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. T 09 303 5278

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